Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  June 1, 2012                                                                     Robert P. Young, Jr.,
                                                                                             Chief Justice

  144639-40                                                                        Michael F. Cavanagh
                                                                                         Marilyn Kelly
                                                                                   Stephen J. Markman
                                                                                   Diane M. Hathaway
                                                                                       Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                     Brian K. Zahra,
            Plaintiff-Appellee,                                                                   Justices


  v                                                      SC: 144639
                                                         COA: 304593
                                                         Oakland CC: 2010-230991-FH
  LEON JERMANE WALKER,
           Defendant-Appellant.

  _________________________________________/
  PEOPLE OF THE STATE OF MICHIGAN,
            Plaintiff-Appellee,
  v                                                      SC: 144640
                                                         COA: 304702
                                                         Oakland CC: 2011-236898-FH
  LEON JERMANE WALKER,
           Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the December 27, 2011
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

        MARKMAN, J. (concurring).

         I concur in the denial of defendant’s application for leave to appeal because his
  alleged actions unquestionably fell within the range of conduct proscribed by
  MCL 752.795, and there is no contention by defendant that the statute is unconstitutional.
  However, I share the dissenting justice’s concern that MCL 752.795 encompasses an
  extremely broad range of conduct, and further believe that it potentially extends well
  beyond even its application in the instant case. Therefore, I write separately to urge the
  Legislature to consider whether it intends to criminalize the full range of conduct to
  which the statute potentially extends.
                                                                                        2

        YOUNG, C.J., concurs in the statement of MARKMAN, J.

        MARILYN KELLY, J. (dissenting).

       I would grant leave to appeal. Defendant will be tried on two counts of violating
MCL 752.795, Michigan’s fraudulent-computer-access statute. This law forbids
unauthorized access of a computer or computer program “to acquire, alter, damage,
delete or destroy property or otherwise use the service of a computer program, computer,
computer system, or computer network.”1 A person convicted of violating MCL 752.795
is subject to a possible prison term of 5 years or a fine of as much as $10,000, or both.2
Repeat offenders may receive up to a 10-year prison sentence or a fine of as much as
$50,000, or both.3

       The factual basis for one of the charges against defendant is that he allegedly
accessed his wife’s e-mail account without her permission. This may be the first time in
the 33 years since MCL 752.795 became law and the 16 years since it was amended to its
present form that the statute has been used as the basis for criminal charges for the
behavior in question.

        Defendant argues that the language of MCL 752.795 is ambiguous. Also, he
insists that the statute was not intended to criminalize a person’s reading of his or her
spouse’s e-mails. He provides examples of innocuous conduct for which a person could
be criminally prosecuted under the prosecution’s reading of the statute.4 Defendant also
raises a significant question about whether Internet-based e-mail accounts fit within the
statute’s reference to “a computer program, computer, computer system, or computer
network.”

        I think defendant’s arguments are worthy of this Court’s review. Accordingly, I




1
    MCL 752.795.
2
    MCL 752.797(2)(a).
3
    MCL 752.797(2)(b).
4
  For example, defendant argues that a parent could be convicted for monitoring his or
her child’s Internet and e-mail usage. He argues that a person could be convicted for
using the calculator or word-processing programs on his or her spouse’s computer
without permission.
                                                                                                                 3

would grant leave to appeal to consider whether the statute’s language applies to
defendant’s conduct and, if so, whether this prosecution is based on an overbroad and
unreasonable reading of the statute.

       Finally, I note that the Legislature is considering a bill introduced specifically
because of this prosecution that would exempt defendant’s conduct from the scope of
MCL 752.795.5 Given that this Court has declined to consider the issues involved here,
the Legislature would do well to consider whether it intends that MCL 752.795 subject
the behavior involved here to criminal penalties.

         I respectfully dissent and would grant defendant’s application for leave to appeal.




5
    HB 4532 (introduced April 12, 2011).



                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           June 1, 2012                        _________________________________________
         p0529                                                                 Clerk
