SDNY Judge Rules Defendant Waived Marital Privilege When He Sent Incriminating E-Mail Over Office Computer

In an extortion prosecution of an investigator in the New York State Police (NYSP), a court ruled that the defendant did not have a reasonable expectation of privacy in e-mails sent from his office computer, which he knew or should have known was subject to monitoring by his employer.  At issue in United States v. Etkin, 07 CR 913 (KMK), 2008 WL 482281 (E.D.N.Y. February 20, 2008), was an allegedly incriminating e-mail from the defendant sent from his office computer to his wife that was recovered among items seized from the defendant's NYSP vehicle.  Although marital communications are presumed confidential, "this presumption is rebutted when the communicant knew that the information was or would be disclosed to third parties or to the public."  Here, in what appears to be a case of first impression in this circuit, the court held that the defendant could not claim a reasonable expectation of privacy in the contents of his work computer "when their employers communicate to them via a flash-screen warning a policy under which the employer may monitor or inspect the computers at any time."