If I read your emails, change your password, and use your emails against you in a divorce proceeding, am I cyberstalking you?

If you said "yes" to the question posed in the title of this post, you may have some difficulties in Florida. In Young v. Young, 2012 Fla. App. LEXIS 15112 (Sept. 28, 2012), a Florida appellate court said "no" to that question, holding that cyberstalking, per Florida statute, requires "electronic communications by [a person] of "words, images, or language . . . directed at" another individual (the person allegedly getting stalked).

In Young, the husband allowed his wife to use his computer password to install a multi-user licensed anti-virus program. Under these facts, I'm not exactly sure why she needed the password, but the case does not clarify. The husband, in my estimation, was operating under good faith because at the time of disclosure, the couple was either at, or still amidst, their dissolution proceeding.  (At this point I'd like to stop and offer what should be obvious advice at this point - short of a court order, never disclose your password to anyone, for anything, at any time. Including your wife. I can't think of many stories I have heard that open with "so I gave her/him my password" and end happily.)

The wife, without the husband's consent, then "used the password to read his email and then changed the password so that he could no longer gain access to his account." Subsequently, she "filed a paper in the divorce proceeding that contained extensive personal information taken from the emails." The husband filed for a domestic violence injunction, which was granted by the lower court after interpreting that the wife's actions "amounted to cyberstalking."

The court of appeals overturned the injunction, stating that reading your emails, changing your password, and using the information discovered in your email account are not electronic communications directed at another, and therefore fall outside the purview of the statute.

In my common understanding of stalking in general, but also cyberstalking, I was never under the impression that stalking had to include some sort of communication to the "stalkee." Isn't part of stalking doing so by use of stealth? Indeed, one online dictionary defines it as:

1. To pursue by tracking stealthily.

2. To follow or observe (a person) persistently, especially out of obsession or derangement.

To me, this is an odd outcome - but, it is more a failing of statutory drafting than a mistake by the court. The husband may also have other remedies (computer intrusion statutes at the state level), however those will certainly not be sufficient to obtain a DV injunction. The larger question is this, does the wife's behavior give rise to the husband's belief that he was in imminent danger of domestic violence, which is the DV injunction standard in Florida. That's a high bar to meet, but one would need to know the content of the emails to know just how angry she might have been. As a public policy matter, I think a DV injunction here wouldn't be a bad thing.