21st Century Pillow-Talk: Applicability of the Marital Communications Privilege to Electronic Mail


This article is the first to explore whether the marital communications privilege, which protects from disclosure private communications between spouses, should attach to communication sent via Web-based email. Traditionally, the privilege does not attach where a third party learns, either intentionally or inadvertently, the content of an otherwise private communication. In the world of Web-based email, disclosure to a third party is necessary in order for successful communication to occur. Writers of Web-based email draft a message and store it on a third-party Internet Service Provider’s (ISP) server until the recipient reads the message. Even after the email has been delivered, a copy may remain on the ISP’s server indefinitely. This article investigates whether this process is inherently at odds with the marital communications privilege. This article will also explore whether marital communications should continue to be protected despite the privilege’s failure to meet some of its stated purposes.


Communications Law | Evidence

Date of this Version

September 2006