Use of work e-mail negates spousal privilege. Hamilton, a one-time Virginia legislator, was convicted of bribery and extortion, having secured state funding for a local university in exchange for a job. In advance of the meeting with university officials to discuss funding, Hamilton exchanged e-mails from his with his wife in which they talked about their financial difficulties and their hope that the university would be able to offer employment that Hamilton could use to supplement his income as a member of the state's House of Delegates. The e-mails were sent on Hamilton's account at the public school where Hamilton also worked. During his trial on the criminal charges that resulted, Hamilton challenged the admissibility of the incriminating e-mails, maintaining that they were protected by the marital communications privilege.
The 11th Circuit went old school and applied a case from 1934 in which the defendant's communications with his wife were not protected by the spousal privilege because he had made voluntary disclosure of their contents to a third-party, his stenographer, thereby waiving the privilege: Wolfle v United States, 291 US 7. The circuit judge analogies this to the facts before her: 'In Hamilton's case, email has become the modern stenographer'. Hamilton's employer had an e-mail usage policy stating that employees could have no expectation of privacy in their communications over the system and Hamilton had taken no steps to protect the information he had sent: he had waived any privilege the e-mails would otherwise have enjoyed: United States v Hamilton, 2012 US App LEXIS 25482 (11th Cir, 13 December 2012)
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