Under Texas law, reaffirmed in a recent case, your cell phone, when it is a smart phone, is considered a computer. Smart phones and devices that save information can help and hurt us when we access and use information, particularly information owned by other people, including spouses. Nowadays it starts in early dating, the temptation to “go through” someone’s phone to see who they are texting, who they receive calls from and what apps they frequently use. Just because it’s a quick peak while the other is in the shower does not mean it is less of an invasion of privacy. In the eyes of developing laws addressing technology and security, you might as well break into another’s office and sort through their computer, desk, mail and filing cabinets. A spouse, whether in a divorce case or in a private cause of action, can sue you and win if you violate their privacy by accessing their private information.
Going through another’s phone to grab screenshots can be a risky proposition.
In many privacy invasion cases, spouses or others possibly assisting another are looking for evidence of wrongdoing or bad activity. Emails, text messages, social media messages and recorded voicemails are sources of information that may help a spouse prove their case and allegations made against the other. The bad activity may be cheating, hiding money, drug use, porn or gambling issues. While finding the evidence you need may help you prove elements of your divorce case and net you a greater share of community property, for example, but the cost may be a criminal conviction for violating the laws designed to protect us from other people violating our privacy by accessing our smart phones (computers) without our permission.
A Dallas husband monitored his wife without her knowledge and it came back to bite him.
In the Dallas case, Bradley Miller v. Talley Dunn Gallery, LLC and Talley Dunn[i], the husband tracked his wife like a hawk, using a tracking device in her car, recorded her phone calls, snooped through her phone while she was asleep and grabbed screenshots along the way. The husband started posting some of the information and sharing it with other people, in an effort to prove his assertions about her and make her look bad to her friends and coworkers.
The wife did more than get mad, she got even and sued then ex-husband for intercepting her private information, invading her privacy and she successfully obtained a restraining order stopping the husband from making any further posts and sharing any more of the personal information he took from her phone. After the wife won on her privacy cases in the Dallas County 191st District Court, the Dallas Court of Appeals upheld the trial court after the ex-husband appealed.
“This ruling reaffirms our understanding of one point of law. It is well-established that any person, including a spouse, commits a crime if he or she knowingly or intentionally intercepts wire, oral or electronic communications to which he or she is not a party without the permission of one of the parties to the communication.[ii]” – Texas Lawyer
The Interception of Communications Act
A person may sue another for violations of the Interceptions of Communications Act (ICA) when the person, “(1) intercepts, attempts to intercept, or employs or obtains another to intercept attempt to intercept the communication; or (2) uses or divulges information that he knows or reasonably should know was obtained by interception of the communication.[iii]” The law further states that intercepting a communication occurs when “the aural acquisition of the contents of a communication through the use of an electronic, mechanical or other device is made without the consent of the party to the communication.[iv]”
The Harmful Access by Computer Act (HACA)
A person injured, or whose property is injured (and/or improperly used) may sue another for violations of the Harmful Access by Computer Act, “if the conduct constituting the violation was committed knowingly and intentionally,” and the suit is brought “before the earlier of the fifth anniversary of the date of the last act in the course of the conduct constituting a violation…or the second anniversary of the date the claimant first discovered or had reasonable opportunity to discover the violation.[v]”
If you “access” your spouse/another person’s smart phone “computer” without their “effective consent” you may be liable for actual damages and attorney’s fees and costs to bring and win the cause. Note that the argument that the phone is community property fails when used to challenge whether one spouse has consent to access the other’s phone, under the HACA.
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[i] Bradley Miller v. Talley Dunn Gallery, LLC and Talley Dunn, No. 05-15-00444-CV (On Appeal from the 191st Judicial District Court in Dallas County, Texas, Trial Court Cause No. DC-15-01598)
[ii] Texas Lawyer, Electronic ‘Smoking Gun’ Evidence in Family Law Cases Has Potential to Backfire, By Jessica W. Thorne and B. Wyn Williams, May 17, 2015.
[iii] TEX. CIV. PRAC. & REM. CODE ANN. § 123.002(a)(1)–(2)
[iv] See HNiii above at § 123.001(2)
[v] TEX. CIV. PRAC. & REM. CODE ANN. § 143.001(a),(b)
Image Source: FlexiSpy, Many Spouses Cheat. They All Use Cell Phones http://bit.ly/1TJz9ku