42 Pages Posted: 5 Jun 2007
The marital privilege has two parts: the testimonial privilege and the communications privilege. Originally, the testimonial privilege prevented one spouse from testifying against another. According to the United States Supreme Court, spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. Thus, if a husband were not permitted to testify, then his wife, as a part of the husband, likewise should not be permitted to testify.
In 1933, the United States Supreme Court abolished the rule disqualifying spouses from testifying in federal court on each other's behalf; however, a privilege remained that prevented either spouse from providing adverse testimony against the other. The rationale for the testimonial privilege is its role in protecting marital harmony and the sanctity of the marital relationship. This Article takes a fresh and innovative look at whether the marital communication privilege should protect communications between husband and wife sent via electronic means.
Traditionally, the marital communications privilege is destroyed when a third party, without the knowledge or involvement of the recipient-spouse, intentionally or inadvertently discovers the communication. In the context of electronic communication, where Internet Service Providers (ISPs) have access to otherwise confidential communications, the marital communications privilege may not apply at all. Indeed, it is possible to argue that the marital communications privilege is inherently at odds with this form of communication.
This Article has two purposes. First, it explores whether the marital communications privilege currently protects e-mail communication and whether the privilege should protect such communication. Second, it addresses whether the marital communications privilege should continue to exist, considering the traditional purposes of the privilege. Part II of the Article discusses the history of the marital communications privilege. Part III explores the details of e-mail storage and addresses constitutional and statutory provisions outside the context of the marital communications privilege that provide some privacy protection for electronic communications. Part IV takes a critical look at whether the marital communications privilege applies to electronic communication based on more traditional applications of the privilege and highlights three legislative solutions that have been put in place to protect privileged communications made electronically. Part V discusses whether courts should reconsider the marital communications privilege as a whole considering the stated purposes of the privilege.
Keywords: marital communication, electronic mail, e-mail, spouse, spousal, privilege, testimonial privilege, communication privilege, spousal disqualification, husband, wife, internet, Internet Service Provider, confidential, confidential communication, privacy, electronic communication, informational privacy
JEL Classification: J12, J18, K10, K30, K40, K41, O30, O33
Suggested Citation: Suggested Citation
Thompson, Mikah K, Twenty-First Century Pillow-Talk: Applicability of the Marital Communications Privilege to Electronic Mail. Santa Clara Law Review, Vol. 58, p. 275, 2006. Available at SSRN: https://ssrn.com/abstract=991135