Earlier this month, on December 13th, the 4th Circuit Court of Appeals upheld the conviction of former Virginia House of Delegates member Phillip A. Hamilton on charges of federal program bribery and extortion under color of official right. In trying the case, federal prosecutors presented evidence derived from e-mails between Hamilton and his wife. On appeal, Hamilton, and Electronic Privacy Information Center (EPIC), in an amicus brief, argued that such evidence was improperly admitted by the district court, since it violated the well-established marital communications privilege, which, although often narrowly interpreted, protects most confidential communications between spouses. Relying heavily on Wolfle v. United States, 291 U.S. 7, 54 S. Ct. 279, 78 L. Ed. 617 (1934), the Court disagreed, finding that Hamilton’s use of a workplace e-mail account on his public school employer owned computer, in effect, waived the privilege, as there was no expectation of privacy under those circumstances.
The 4th Circuit’s decision was more nuanced than that, but as an experienced criminal defense attorney I am nonetheless troubled by the Court’s reasoning and ultimate decision for a number of reasons. While the Court recognized the spousal privilege rule as continuing in effect, it also narrowed it in scope despite the expanding modes of communication that advancing technology has made a part of our everyday lives; communication by which the privilege might have otherwise been applicable in the past. First, so long as the subject communication remained between a husband and wife, I disagree with the reasoning of both courts. The privilege should remain intact barring actual disclosure to a third party by one of the spouses holding the privilege. If either party intended to waive the privilege, the e-mails would have been cc’d or forwarded. Unless or until that occurs, the contents of the communications are just as sacrosanct as conversations between husband and wife over school subscribed/issued cell phones. I am also troubled by what the Court may be saying about the privacy of electronic files/communications of any nature, as it may signal an impending willingness of the courts to find that computer contents/files are no longer protected under the 4th Amendment if they are (theoretically) accessible by third parties remotely or as stored in "the Cloud."
It seems counterintuitive that, as the scope and means of communication expands with the increasing adoption and integration of technological devices and advances into our daily lives, the Courts would seek to narrow what is protected under the spousal privilege doctrine. What’s next - will asking a virtual digital assistant to text my wife be considered waiving spousal privilege because Siri is considered a third-party? Are we going to lose the expectation of privacy by taking advantage of the servers of cell phone and computer corporations selling us the means of communication we have embraced in our digital age? I certainly hope not, because if that is the case, longstanding legal privacy doctrines will have little effect, thus undermining some of our most fundamental founding principles.
Criminal defense attorneys, and lawyers in general, must be concerned about the possible slippery slope these rulings create for not just for spousal privilege issues, but attorney-client privilege issues, as well (not to mention other such confidential privilege relationships, e.g, doctor-patient, priest-penitent, etc.). The majority of my federal criminal practice is in the First and Second Circuits, so I can only hope that should a similar challenge arise in either, the justices of those courts will be disinclined to follow the Fourth Circuit’s misguided direction.