- The Washington Times - Thursday, July 9, 2009

ANALYSIS/OPINION:

Kim Philby, the notorious British spy who betrayed his country to the Russians, defined espionage as the collection of “secret information … by illegal means.”

This handy definition would apply to espionage in cyberspace as well. Everyone knows that the Internet isn’t very private. The police routinely access Facebook accounts, as do the tabloids.

Bear Stearns Cos. Inc. hedge-fund operators were indicted on the basis of e-mail evidence they thought was private. White House appointees were embarrassed by Facebook posts. Lawyers in civil cases have made a cottage industry out of demanding and producing electronically stored information or “e-discovery,” which would include a dragnet exploration before trial of all e-mails in an adversary’s files.

E-mails, as well as other forms of digital evidence, routinely turn up in court cases, and frequently trials turn on their significance.

All sorts of spying goes on in cyberspace: spying by the government, industrial espionage, spying for commercial advantage and spying by people we know.

Google Inc., Yahoo Inc. and Microsoft Corp. have all been accused of creating user profiles that catalog browsing histories, Web preferences and personal information. The government has been accused of Internet spying. So have private investigators retained by business competitors bent on industrial espionage.

But much of the digital spying is undoubtedly done by an intimate — a spouse, domestic partner or companion. Digital spying can be readily accomplished by anyone with access to the target computer.

Sometimes these spies use spyware like “Pandora” which are offered over the Internet to retrieve logs of Web sites visited or e-mails sent and received. Other spyware enables the intruder to infect a computer with a “Trojan” which can transmit sensitive information to a remote location. The availability of such techniques accounts for our seeing more and more e-mail evidence in divorce cases. Such e-mails have often been purloined or intercepted by estranged spouses.

E-mails can be nothing but trouble when they go to court. People tend to type up an e-message and send it off without the consideration and revision that went into an old-fashioned letter. The first draft becomes the last draft. Often, e-mails can be embarrassing or even incriminating. Relevant is Job’s exhortation “Oh, that mine adversary had written a book!”

Let’s take the recent Brooklyn case of two battling spouses named Gurevich who physically separated in 2006. Mrs. Gurevich is a software developer and apparently an expert in “computer networking.” Mr. Gurevich was a computer programmer who was laid off in 2005 shortly before the split in July 2006. The wife had access to the husband’s password-protected e-mail accounts until July 2008 when they were changed.

AOL LLC permits access to an e-mail account by anyone knowing the user name and password from any computer anywhere. From these accounts, she obtained without her husband’s authorization e-mails from Mr. Gurevich to his accountant and various business associates which she claimed demonstrated an effort to conceal income.

The Brooklyn judge wrestled with whether the e-mails were “intercepted” by the estranged wife or whether she had obtained the documents by illegally accessing her husband’s computer after the e-mail had been sent or received. If “intercepted,” the e-mails would have been inadmissible; if stolen, they were good as gold.

He held that the e-mails were admissible since the e-mails were not “in transit” but stored in the husband’s e-mail account. It didn’t matter that the e-mails were arguably stolen. Purloined letters have long been admissible in civil cases.

In criminal cases, the rule had been somewhat different but is still evolving. At one time, evidence illegally seized by the government was routinely excluded. The exclusionary rule was intended to disincentivize the police from engaging in illegal conduct. In January, however, the Supreme Court by a 5-to-4 decision curtailed the exclusionary rule in search and seizure cases not involving illegal eavesdropping. As Chief Justice John G. Roberts Jr. put it, quoting from Judge Benjamin Cardozo in a 1926 case, the criminal should not “go free because the constable has blundered.”

From Edgar Allan Poe’s famous short story to the “letters of transit” of Casablanca, the law and fictional literature have long shared a fascination with purloined letters.

Evidence obtained by illegal wiretapping, eavesdropping or other methods of electronic surveillance is still inadmissible in most states. A New York statute, for example, flatly excludes all forms of intercepted electronic communications.

That law, however, does not apply to e-mails stored on a computer — even if stolen. The purloined letter that so intrigued Poe has become the purloined e-mail of the digital age.

James D. Zirin is a New York trial lawyer. He is co-host of the cable talk show “Digital Age,” which deals with issues on the Internet.

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