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Electronic Privacy Laws: What’s Allowed and What Isn’t

If you leave something personal in a public place, a letter for example, and someone reads that letter you would have a tough time suing him or her for violating your privacy rights. There is no crime against reading something that you find in a public place. Additionally, you cannot reasonably expect there to be any privacy afforded to you in a public place like a park bench. Your mailbox, sure, is private property where a crime would be committed were someone to enter the mailbox, steal a letter, and then go on to read its contents. The park bench, not so much.

Let’s say that you were having a private conversation with another person in your home or your office. To your knowledge, it was just you and this other person talking and nobody else was around to listen in on what was being said. This was your expectation, and it was exactly what you wanted to happen. If your spouse comes in and puts a listening device somewhere to spy on what you and the other person were talking about then this would violate your right to privacy. It is reasonable to think that your home was not bugged by someone- even if the person doing the bugging (your spouse) also lived in that house.

As American citizens, we have a right to reasonably expect that our privacy is going to be maintained in certain situations. Again- leaving a letter opened on a park bench or talking on your cell phone with the speaker function activated in a restaurant is not an example of a situation where you could have a reasonable expectation of privacy. Violating your right to privacy is a tort in Texas. This is a civil matter, not a criminal one although there may be criminal elements to an invasion of privacy as well.

Invading your solitude- Texas style

When you are in a marriage that is failing you may feel like a divorce is an inevitability. While you lose traction in working on your marriage and building up strength in the marriage, the pull of a divorce can feel stronger and stronger. Before you know it you are making plans to move out, separate your finances and hire a divorce lawyer. However, before you take those steps you may also feel compelled to try and collect some evidence for your divorce which can benefit you down the road.

It is at this stage that what you believe to be “right” behavior and what you believe to be “wrong” behavior can become especially difficult to distinguish between. Invading the privacy of your spouse can be something that doesn’t seem so unethical or unfair when you believe that a divorce is around the corner. All is fair in love and war and a divorce involves both of those things, right? It is becoming easier and easier to spy on your spouse. The tricks of the trade are getting even trickier as spying methods and tools become more advanced and sophisticated. As technology improves the cost of these spying tools decreases making it even easier for spouses to spy on one another.

Cameras in a nondescript location in the house. Vehicle trackers that allow you to keep tabs on your spouse like you would a pizza delivery guy as he approaches your house with dinner. We’ve seen these spying tools utilized in movies and television shows. They are becoming more accessible to the public and more attractive an option the higher the stakes in a divorce. Hotly contested child custody case going on within the divorce? Why not use these tools to find out what is happening behind closed doors between your co-parent and your children? Again, you aren’t the spying type (you think) but then you feel justified in doing what you are doing due to the stakes involved.

All of these “old school” spying techniques and tools don’t even scratch the surface of the sort of spying that can go on in the digital world. Spying via keystroke trackers, spyware, email history searches and things of this nature are all possible and nearly undetectable unless a person knows what to look for in the case of spying on a spouse. How many of these behaviors are legal and what do you need to know before doing any of these things within the context of a Texas divorce?

The state of Texas has laws that aim to protect people against different types of invasion of privacy. Making public and private facts about the person as well as intruding into that person’s secluded space are both against the law. Physically invading the space of your spouse without their permission is against the law- eavesdropping on their conversations using technology or simply hiding and listening to the phone call can be counted among these techniques that are used to commonly eavesdrop on other people. It doesn’t matter if all you do is keep that information private. Invading the privacy of another person is against the law in Texas even if you never make that information public.

There is an assumption among some that married people do not have the right to privacy from their spouse. This is not true. Even if you are married to the person that you are eavesdropping there is the potential for you to be held civilly liable in a tort action filed in court. What’s more, you are prohibited from hiring someone like a private investigator to conduct the spying for you. If you knowingly access your spouse’s computer or smartphone without that person’s consent, then you are invading that person’s privacy. This is against the law and could put you in a position where you become criminally liable. Let’s say that your spouse is injured or harmed in some way due to your having spied on them. The key is that you would need to have committed the acts knowingly or intentionally.

In short, while there are ample opportunities for you to engage in spying during your divorce it is not a good idea. There are criminal and civil penalties associated with you doing so. The evidence that you collect using illegal means must be admitted into the court’s record for a hearing or trial. Your spouse can object to the information or evidence being admitted based on it being obtained using illegal means. A judge would be very unlikely to admit these pieces of evidence into the record over an objection like this.

Misappropriation of name and likeness

If your spouse attempts to use your name or likeness without your permission, then you may be able to collect damages against him or her. We see claims like this made most frequently by celebrities who sue businesses for using their name, face, or likeness to sell one of their products. However, there are circumstances in which you could be liable for having misappropriated the name or likeness of your spouse. Consider if you hire a private investigator to pose as your spouse to get their hands on information or evidence of some sort. Your spouse (and everyone else, for that matter) has a sort of property right over their name and likeness that cannot be intruded upon by another person.

A situation that could be conceivable in the context of a divorce is if your spouse misappropriates your name or likeness in some way that defames you. Your spouse could hire someone to do something illegal or at the very least inappropriate that your employer could become aware of. If you are fired for the actions of another person who is misappropriating your name or likeness you may be able to sue your spouse for defamation and collect damages- including lost wages.

Public disclosure of private facts

In the United States, the Constitution protects freedom of speech. This is a reality that almost every American is aware of. This protection is what separates our country from many if not all, other countries in the world. However, there are protections under the law for preventing people from taking private facts about you and making those facts public with the motivation to harm you in some way. This is another invasion of privacy claim. That the information which was made public is true would not be a defense against these sorts of actions. The standard here is when a person takes private information about you which is truthful that is not a public matter it could be a tort so long as it is determined that a reasonable person would find it to be offensive.

Let’s create a hypothetical situation that may be relevant to you and your spouse. You and your spouse were engaged in a private, marital act in your home. Your spouse did ask if she could record the act but assured you that it would only be viewed by the two of you. You shrug your shoulders and agree to allow the recording to occur. The next thing that you know your spouse puts the video out on social media to embarrass you. Your spouse has invaded your privacy. Even if what is being shown is true or did happen it can still constitute an invasion of privacy.

Putting your spouse in a false light

If your spouse were to put you into a false light it would relate to him or her disclosing information to the public that is misleading although it does not have to necessarily be false. If your spouse publicly comments you in a reckless manner that places you in a false, light and it is embarrassing to a reasonable person then you may have a valid claim against your spouse for their having done so.

An example of this would be if your spouse takes a photo of you singing at a concert and then photoshops the crowd out of the picture and inserts a picture of your children who are crying. She did this to make it look like you were yelling at your children instead of singing at a concert. That photo was then posted to social media with the caption indicating that you were yelling at the kids for no reason. This could be done to cause people to become angry at you and/or to be sympathetic to your spouse. In any event, it casts you in a false light and is against the law.

Be aware of how you are collecting evidence in your divorce

Nobody begins a divorce with the hope that they will be in for a knockdown, drag-out fight. Rather, the hope is that your divorce will go smoothly and without any major hiccups or problems. However, it is most likely that your divorce will end up being somewhere in the middle. It won’t be the most peaceful process that you were ever a part of but then again it won’t be the most contentious event that you could imagine, either.

Where divorces can get difficult is when spouses begin to take liberties with the other person’s privacy to collect information and evidence to use against the other person. Be aware that the way you collect evidence can not only anger the other person but may not be admissible in courtroom proceedings. This means that you may have done something to upset your spouse and have not gained anything usable or functional in your divorce. This would be adding insult to injury.

Right off the bat, if you are alleging that your divorce occurred for a specific reason- infidelity, for example- then collecting evidence to show that infidelity has occurred would be important. You can allege infidelity or adultery as fault grounds for divorce but eventually, you will need to prove the adultery to be able to have a judge consider that factor when weighing decisions on subjects like child custody or community property division. So, much of the process involved with coming up with evidence is digging through photos, keeping tabs on your spouse, and asking about their behavior when you are not around.

You and your attorney may have a meeting where you discuss what sort of evidence is necessary to be able to substantiate an allegation of infidelity or adultery. A fault ground for divorce can result in a disproportionate awareness of your community estate to you or a more favorable child custody outcome. However, evidence is needed to prove that the allegation that you are making is true. There are types of evidence that you can collect to prove your readily available allegation. Examples of this include bank records, phone records, and other items that you can log in and obtain from an online account that you already had access to.

When it comes to other types of evidence- text messages between your spouse and another person, your spouse’s emails, recordings of phone calls, etc., you should speak to your attorney before you try and get your hands on these types of communications. As we have seen throughout today’s blog post you may very well be breaking the law in obtaining these communications. You cannot install a tracking device on your spouse’s vehicle without their knowing about it. This is against the law.

Emails and text messages are a trickier subject. If you hack into your spouse’s phone or email to obtain these messages, then you are breaking the law. We covered that earlier as an invasion of your spouse’s privacy. However, if those emails or text messages are saved on your family computer and you happen to come across them then all bets are off. These may be admissible in a courtroom and not a violation of your spouse’s right to privacy. You can be sued by your spouse for invasion of privacy- even during a divorce.

There are ways that you can obtain evidence in your divorce which will not open you up to potential liability for invasion of privacy claims. You can speak to your attorney about these situations and gain some perspective as to why a particular method of collecting evidence is better than another method. Whenever you have an idea about collecting evidence that strikes you as being illegal or even hints at illegality it is wise to stop what you are doing and first speak to your attorney. He or she can inform you about the methods that you plan on undertaking and whether you should stop what you are doing. You can best ensure that your divorce will be amicable by not intruding upon your spouse’s privacy. Often there are alternative ways to access information that will not violate the law which you may not have thought of initially.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are great opportunities to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody case.

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