On December 27, in an unpublished decision, 2011 the Michigan Court of Appeals decided a case involving Leon Walker's unauthorized access of his wife Clara Walker's password-protected email account. Leon Walker does (or did) work for the Oakland County Information Technology Department maintaining and setting up computers. Following the preliminary hearing, the district court bound Leon over on two charges, one a violation of MCL 752.795, which prohibits fraudulent access to computers, computer systems, computer programs, and computer networks.
The district court found that Clara did not share her computer password with defendant, and defendant did not ask Clara for her information. The trial court said: “Gmail allows a user to create a password which creates an expectation of privacy and creates security for the user. It’s the user that decides who can have access to the information inside of the computer account, which in this case is like a vault.”
Leon was bound over after the preliminary hearing. He was charged with two felonies. One involved unauthorized use of a county database; the other involved allegations of unauthorized access to the Gmail account of his estranged wife, Clara Elizabeth Walker, from July 2009 through August 2009.
Clara testified at the preliminary hearing that she had never given him her passwords to email accounts or authorized him to access her email accounts. There was evidence that he had accessed a Gmail account.
The primary issue in the domestic case was whether an email account constitutes a "computer, computer network, computer program, or computer system." Leon Walker also claimed that there was a spousal exception. Both the circuit court and the court of appeals refused to read a spousal exception into the statute.
After convoluted proceedings involving the circuit court bind-over, a remand to district court for more testimony, various proceedings in the court of appeals, another remand to circuit court and finally a decision in the court of appeals, this case is finally coming back to the Oakland County Circuit Court for trial.
Here are the primary take-aways—the trial court findings that were affirmed in the court of appeals regarding MCL 752.795:
"Although there are no cases setting forth the elements of unauthorized access of a computer, the elements can be discerned from the unambiguous language of MCL 752.795. The language at issue states that “[a] person shall not intentionally and without authorization or by exceeding valid authorization . . . [a]ccess or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or
computer network.” MCL 752.795(a). Accordingly, the plain and ordinary meaning of this statutory text reflects that the following elements must be established: the defendant must have
(1) intentionally and (2) without authorization or by exceeding valid authorization (3) accessed or caused access to be made to a computer program, computer, computer system, or computer network (4) to acquire, alter, damage, delete, or destroy property or otherwise use the service of a
computer program, computer, computer system, or computer network. Because the statutory language clearly sets forth these elements, it is not proper to “go beyond the words of the statute to ascertain legislative intent.” Phillips, 469 Mich at 395 (quotations and citation omitted).
"Sufficient evidence was presented regarding each element to support the district court’s decision to bind defendant over for trial. First, the evidence supports a reasonable inference that defendant acted intentionally. “A statute that requires a prosecutor to prove that the defendant intended to perform the criminal act creates a general intent crime. A statute that requires proof that the defendant had a particular criminal intent beyond the act done creates a specific intent crime.” [Internal citations omitted). There is nothing in the language of MCL 752.795 to suggest that the prosecutor must prove a particular intent beyond the intent to perform the criminal act. Thus, the statute creates a general intent crime.
"A defendant’s intent can be inferred from circumstantial evidence, including the defendant’s words or 'the act, means, or the manner employed to commit the offense.' Here, defendant admitted to the police that he accessed his estranged wife’s Gmail account after guessing her password. Defendant then gave copies of her emails to a third party. Thus, a reasonable inference can be drawn that defendant acted intentionally when he accessed his wife’s Gmail account, used the account to view her email messages, and printed the messages to distribute to a third party.
"Second, there was evidence that defendant acted without authorization when he accessed his estranged wife’s Gmail account. Defendant’s wife testified that her Gmail account was a personal account and that she never shared her passwords for the account with defendant or granted him permission to access the account. Further, she allowed defendant to use her computer only when it needed a repair. Defendant admitted to the police that he accessed his wife’s Gmail account by guessing her password. These facts support a reasonable inference that defendant lacked authorization for his access of his wife’s Gmail account.
"Next, the evidence at the preliminary examinations established that defendant accessed or caused access to be made to a computer program, computer, computer system, or computer network. Detective Carol Liposky, testifying as an expert on computer crimes and computer forensic issues, explained that a user’s messages are stored on the Gmail server. A server is a computer. The emails cannot be accessed without a password. After a user signs in with a valid password, email messages are retrieved from the Gmail server through the Internet. The Internet is a computer network. Further, Gmail is a computer program because it is written by programmers to perform certain tasks, i.e., to function as an email client by which users can send emails, accept incoming emails, and delete emails. The Gmail servers act as a computer system by performing the required functions. Thus, Liposky opined that by accessing Gmail, a person uses a computer program, a computer system, a computer network, and a computer.
“She’s accessing it using a computer, she’s using the Internet, which is a computer network, and a program such as Gmail, that it [sic] was created specifically for e-mail. Thus, the evidence supports a conclusion that by guessing his wife’s password and then using her Gmail account, defendant accessed or caused access to be made to a computer program, computer, computer system, or computer network.
"Finally, the prosecutor presented evidence that defendant acquired, altered, damaged, deleted, or destroyed property or otherwise used the service of a computer program, computer, computer system, or computer network. Defendant used the services of Gmail when he gained
access to his estranged wife’s account, viewed her emails, and printed them to distribute to a third party. Further, by viewing, printing, and distributing the emails, defendant acquired his wife’s property, i.e., her password-protected emails containing restricted personal information or
other tangible or intangible items of value. MCL 752.793(1).
"Accordingly, we conclude that the prosecutor presented sufficient evidence of each element of unauthorized access of a computer, MCL 752.795, to support the district court’s decision to bind defendant over for trial."
The court of appeals found that there was no spousal immunity. See footnote number 4: "Contrary to defendant’s argument, nothing in the statutory text suggests that spouses, estranged spouses, or parties to a divorce proceeding are immune from prosecution under the act. Further, the mere possibility that MCL 752.795 may be amended in the future does not affect this Court’s interpretation of the existing statutory language."
You may read the court of appeals decision in People v Walker, Docket No. 304593, decided December 27, 2011(unpublished) here.
An earlier ABC News Report can be viewed below.