As trust breaks down between spouses, reasonable boundaries between acceptable and unacceptable behavior can quickly become blurred, when it comes to invasion of privacy. Domestic snooping is trending upward, as modern surveillance technology becomes increasingly available and affordable. Suspicious spouses seeking evidence of an affair, or divorced parents wanting to eavesdrop on their children’s care while in the other parent’ s home, can easily obtain and install teddy-bear cameras or GPS trackers. A range of smartphone spyware, capable of pulling up call logs and text messages, websites visited, and email history, can be effortlessly purchased online. Some software will even enable voice calls to be intercepted and listened to by the spying spouse. But, is any of this legal?
Texas recognizes and protects individuals against several forms of invasion of privacy, including intrusion upon a person’s seclusion and public disclosure of private facts. Not only does a common-law right to privacy exist under Texas law, but also the Texas Constitution protects personal privacy from “unreasonable intrusion” meaning that one person cannot intentionally intrude upon the seclusion, solitude, or private affairs of another by physical invasion of the other’s property or by eavesdropping on the other’s conversation via wiretaps, microphones, or spying. It is important to note, Texas case law says that it is an offense to pry into the private domain of another, before we even approach the question as to if information gathered during prying activities is disclosed to third parties or otherwise made public.
In a recent case, a Texas Court of Appeals held that nothing in Texas law suggests that the right of privacy is limited to unmarried individuals. The appellate court went on to say that a spouse’s actions, whether personally or through an agent, in making a secret recording of the other spouse who believes he or she is in a state of complete privacy, could be an invasion of privacy. A violation of that right to privacy could be considered a tort that could give rise to monetary damages.
Undisputedly, under Texas law, a modern smart phone qualifies as a “computer.” Section 33.02(a) of the penal code provides that a person commits an offense by knowingly accessing a computer without the effective consent of the owner, and a “computer” is defined as an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage, or communication facilities that are connected or related to the device. TEX. PENAL CODE ANN. § 33.02(a).
There is also a civil cause of action for a person who has been injured because of a violation of Chapter 33 of the Texas Penal Code if the conduct constituting the violation was committed knowingly or intentionally. A person “accesses” a computer under the statute by approaching, instructing, communicating with, storing data in, retrieving or intercepting data from, altering data or computer software in, or otherwise making use of any resource of a computer. TEX. PENAL CODE ANN. § 33.01(1).
Even if the phone is community property, Courts have held that nothing in Chapter 33 of the Penal Code incorporates community property law for the purpose of establishing ownership of the computer. Rather, the statute defines “owner” as a person who has title to the property, possession of the property, whether lawful or not, and the right to restrict access to the property, for example, the use of password protection.
“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
Essentially, despite the ready availability of affordable, easy to use, spy gadgets, if spouses or exes violate privacy laws to snoop or spy on one another during, before, or after a divorce, they can be sued for this. In short, it’s not a good idea.