According to a recent case from the Texas Court of Appeals in Dallas, a spouse’s secret recording of the other spouse at a time when the other spouse believed he or she was in a private setting can support a tort claim for invasion of privacy. Miller v. Talley Dunn Gallery LLC, 2016 Tex. App. LEXIS 2280 (Tex. App. – Dallas March 3, 2016) (mem. opinion) (Cause No. 05-15-00444-CV). In the Miller case, the Husband began searching the Wife’s cell phone while she was sleeping at night, taking screen shots of her text messages because he thought she was having an affair. The Husband also put a digital recorder in the Wife’s vehicle, which recorded conversations that took place in her car. The Husband also recorded conversations between the parties that occurred at their residence. The Wife later sued the Husband under the Interception of Communications Act and Harmful Access by Computer Act, among other claims. The Husband claimed that he had not violated the Interception of Communications Act since he was a participant in the recorded conversations that occurred at their residence and therefore provided his consent. While only one party needs to consent to the electronic recording to have a defense under the Interception of Communications Act (which could be the recording party as the one providing consent), the Texas Court of Appeals in Dallas found that the defense under the statute does not prevent somebody from still asserting and successfully pursuing a common-law claim for invasion of privacy. According to this Court, under the common-law invasion of privacy claim, the consent defense would not always be successful.
Regarding the Wife’s Harmful Access by Computer Act claim, the Husband argued that he did not do any harm by taking screen shots of his Wife’s cell phone and that the phone did not qualify as a “computer” under the statute anyway. The Texas Court of Appeals in Dallas disagreed. The Husband then argued that he had authority to access the information because the Wife’s cell phone was community property. The Court, however, found that community property principles were inapplicable to the Harmful Access by Computer Act, which defines an “owner” as somebody who has title or possession with a right to restrict access (for purposes of determining the rightful owner of a computer). Since the phone in this case belonged to the Wife, even if it was community property, she had in the past protected it by password, and the fact that the Husband accessed her phone at night while she was sleeping proved that she had not consented to him using it. As such, the Texas Court of Appeals in Dallas rejected the Husband’s arguments.
If you are a potential party to a family law suit and you believe that you could come into evidence to help your case that is from another party’s cell phone, computer, or from recorded conversations with that party, speak with a family law attorney first before you do anything else. The attorneys at McClure Law Group are educated, experienced, and trained in handling these delicate issues.