The Southern District of Michigan issued a decision refusing summary judgment on Stored Communications Act claims brought by an ex-spouse based on improper access of the ex-spouse's email messages in the context of a divorce proceeding.  You can access a copy of the order here (pdf) (h/t BNA TechLaw). 

The basic dispute stemmed from a husband's use of a keylogger to record his ex-wife's password for her email accounts and the later use of the password to access the accounts and messages.  Plaintiff's complaint alleged causes of action under a variety of state and federal statutes.  Plaintiff also sued the husband's lawyer (there's a cautionary tale here somewhere, although the court granted summary judgment in the lawyer's favor).

Wiretap Act:  the court dismissed plaintiff's Wiretap Act claim on the basis that the statute only applies to "interception" of messages -- i.e., interception contemporaneous with transmission, and not interception as between plaintiff's computer and her email service provider's server.

Stored Communications Act:  plaintiff also brought a claim under the Stored Communications Act.  Defendant argued that the Stored Communications Act did not apply, once the messages had reached the intended recipient and were merely stored on the ESP's email servers for convenience of the user (in the way Yahoo messages are stored on its server).  The court disagreed.  The statute defines "electronic storage" in two ways - (1) temporary storage incidental to transmission and (2) backup storage.  Citing to Theofel v. Farey Jones, the court concluded that the emails fell under the second part of the definition (they were held in and improperly accessed from backup storage).  I think this conclusion is debatable - if the user deletes the messages from the webmail, are they deleted - i.e., can they be restored by the backup which defendant here is claimed to have accessed?  Probably nitpicking, but Theofel may also be distinguishable on the basis that the messages were provided directly from the ESP, rather than accessed via webmail using the password.  (Maybe there's a Computer Fraud and Abuse Act claim in here somewhere?)   

Wiretap Act:  plaintiff also brought claims under the Wiretap Act.  The court dismissed these claims on the basis that the Wiretap Act did not provide for a private cause of action.

Finally, plaintiff alleged some state law claims, a small portion of which survived. 

The moral of the story is that (even on a shared computer?) it's risky to access another person's email account or messages.  (Previously, a Florida appellate court ruled that a wife violated Florida's wiretap law when she surreptitiously obtained chat recordings.)  It probably seems appropriate to access and use the messages - but legal rules regarding access to computers and electronic communications are increasingly tripping up litigants in divorce cases.  It didn't seem like the lawyer was ensnared too deeply in the litigation but the risk is there conceivably for the lawyer as well.