The recent news story of the prosecution of Leon Walker in Michigan for accessing his wife’s password protected email account to confirm his suspicions of her infidelity raises many questions. Representatives of law enforcement often lobby for broadly worded statutes, and state legislatures often go along with those requests trusting that prosecutors will exercise discretion in choosing which cases to pursue. There are several other examples of statutes that come to mind where prosecutors might arguably chose to enforce broadly worded laws in surprising ways.

In my practice, I see many cases where a spouse suspects infidelity. Computer forensic analysis has expanded beyond law enforcement into the realm of family law. I am seeing more and more cases where a spouse’s suspicions of infidelity have been confirmed by the other spouse’s email, text messages and cell phone records. I have even had cases where clients checked toll road charges to loosely track the date and location of a spouse’s activity.

The Walker case brings to mind a solution that is available to couples in Texas under Family Code Section 4.003(8). Premarital agreements are highly favored in Texas courts, and they can cover a broad range of topics. If you want to be sure you don’t end up in Mr. Walker’s shoes being prosecuted for a crime, a premarital agreement could include a provision authorizing both parties to access the other’s personal computers and email accounts. The provision could include safeguards and limitations on what use could be made of the information obtained. If your intended spouse doesn’t want to sign such an agreement, you may want to discuss with them their reasons and then consider your options.

The Walker case is an excellent example of why the public (and legislatures) should jealously guard our freedom by demanding that criminal statutes be worded narrowly so that it is not possible for a prosecutor to decide out of the blue to apply a statute to action not previously contemplated to be within the scope of the prohibited conduct. While we may legitimately disagree on what the law should be (and I believe it should be debated and resolved, if, as a society, we have reached the point where we value our individual privacy rights over anything else except national security) then at the very least we all need to be placed on notice of that fact by explicit wording in our criminal statutes. Our freedom is too important to be left open to someone’s interpretation; because the interpretation you get in one county may be very different from the interpretation you would get in the next county seat just 30 miles up the road.

We are available to discuss your case, so do not hesitate to call us at (972) 852-8500, or contact Sharon via email at Sharon@DFuller.com. We have represented clients in Dallas and Ft. Worth, McKinney and Denton, Greenville and Rockwall, Tyler and Longview, Marshall and Carthage, Houston and Galveston, Corpus Christy and El Paso, Alpine, Midland, Denton, TX and Sherman, Austin and Waco, Hillsboro, Waxahachie, Cleburn, Glen Rose, and even Santa Fe and Tulsa.