Eavesdropping/Recording is dangerous! Be careful what you do!

 

            A growing number of my clients have questions regarding proving various things about their spouse (or their child’s other parent) using electronic evidence, however obtained via the numerous technological toys out there. 

 

            When I listen to a person tell me about the “proof” that person has collected against another, oftentimes my initial reaction is to cringe, thinking of the potential exposure to severe criminal/civil penalties the person might be facing under the Federal and Texas Anti-Wiretapping Statutes.

 

            I’ve come up with a too-simple rule of thumb, which I’ll state, then support.  The rule boils down to – Read at Home all you want, but Recording is a No-No.  I’ll explain…

 

            In Collins v. Collins, 904 S.W.2d 792, 796 (Tex.App.-Houston [1ST Dist.] 1995), the Court said, “two Texas courts of appeals have held that the interception of a telephone conversation by a spouse is illegal.”  (Citing to Kent v. State, 809 S.W.2d 664, 668 (Tex.App.-Amarillo 1991, pet. ref'd) (defendant violated former Tex.Penal Code § 16.02 by placing a wiretap on the wife's telephone); Turner v. PV Int'l Corp., 765 S.W.2d 455, 469-71 (Tex.App.-Dallas 1988), writ denied per curiam,778 S.W.2d 865, 866 (Tex.1989).  FN2  The Collins court, in footnote 2, said further, “We recognize the Texas Supreme Court, in denying writ, noted that the denial was not to be construed as approving the holding of the court of appeals on the admissibility of the tape recorded telephone conversations.”

 

            Here’s what the two applicable provisions say specifically about taping, eavesdropping, spying, whatever word used to describe the activity.  First, from the Texas Penal Code § 16.02:

 

            (a) In this section, (a huge list of terms, including “intercept”) have the meanings given those terms in Article 18.20, Code of Criminal Procedure.

 

            (b) A person commits an offense if the person:

 

(1)        intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;

 * * *

 

            So, we turn to the definition of intercept in the Code of Criminal Procedure to find:

 

(3) “Intercept” means the aural or other acquisition of the contents of a wire, oral, or electronic communication through the use of an electronic, mechanical, or other device.  (Art. 18.20. `Definitions’)

 

            The civil side of the above issue is set out in Chapter 123 of the Texas Civil Practices & Remedies Code – Interception of Communication.  Reading § 123.001. Definitions; reveals

 

(2) “ Interception” means the aural acquisition of the contents of a communication through the use of an electronic, mechanical, or other device that is made without the consent of a party to the communication * * *

 

The above section goes on to carve out exceptions for other telephones (apparently on the same line), televisions, radio programs, hearing aids, etc.

 

            Chapter 123 goes on to state that a person can sue another for intercepting a communication, or causing to be divulged the substance of a intercepted communication, and the recoverable damages are severe, as shown in § 123.004:

 

 

(1) an injunction against the interception/behavior;

(2) statutory damages of $10,000 for each occurrence;

(3) all actual damages in excess of $10,000;

(4) punitive damages in an amount determined by the court or jury; and

(5) reasonable attorney's fees and costs.

 

            * NOTE * the $10K damages are for every single occurrence of “interception.”  Thus, if one person happened to eavesdrop or record another person’s calls for a week, and the other person received 15 calls that week which were intercepted/recorded, the statutory damages alone are $150,000!

 

            Extrapolate the above to email.  If the average person receives 15-20 emails per day, regardless of importance, and another person “intercepts” these emails through use of another spy-software or key-logger program, or by delving by hacking into a server, over a week’s time the exposure to damages in a single week is well over a million dollars (20/day * 7 days = 140 msg * $10K/ea = $1,400,000!).

 

            Keep in mind that the above criminal and civil penalties are both activated by the “interception” of a communication, not merely being aware of it.

 

            The difference is akin to a “Peeping Tom” looking surreptitiously into a person’s window when they believe they are alone and watching them without their knowledge or consent.  This is a violation of their expectation of privacy, which is protected in the United States.  However, that same sense of visual privacy does not exist within the home itself, unless there were a closed door, etc., to block the view.  Likewise, if people are talking in public, they cannot reasonably expect their conversation to remain private, as anyone can easily overhear them.  But, the same conversation behind closed doors, with a listening device in the room unbeknownst to all of them, or a “bugged” phone call, these are illegal “interceptions.”

            Illustrating the difference, we can look at the New Jersey case of White v. White, 344 N.J.Super. 211, 781 A.2d 85 (N.J.Super.Ch.,2001).  In White, In a divorce, husband filed a motion to suppress as evidence against him his e-mail that had been stored on the hard drive of a family computer. The Court held that: (1) wife did not unlawfully access stored electronic communications in violation of the New Jersey Wiretap Act, and (2) wife did not commit tort of intrusion on seclusion by accessing those e-mails.

 

            The computer in White was readily accessible to both parties, with each of them using it from time to time, and there were no passwords other than that necessary to login to the system, encryption, or other indications that the husband wanted privacy for his activities on the computer.  The husband had an AOL account, which he was using to email his girlfriend, and viewing pictures.  His wife’s suspicions were apparently aroused when she allegedly found a printed letter in her husband’s belongings, so she caused the computer to be investigated.

 

            What boiled out of the above case, which isn’t “law” in Texas but is instructive, is that material simply “stored” on a machine is not “intercepted” merely by the reading of it by one not a direct party to that communication.  The computer, if it is not kept in a secure location, or kept secured by passwords and security software/settings, might be considered a community appliance for everyone to use.  Therefore, there it would not be “reasonable “ to expect privacy for any actions on that computer from anyone else in the community – the other spouse included.

 

            Thus, if email has already been received, and is residing or is Stored on a computer’s memory, it is not an illegal interception to merely read it.  There hasn’t yet been a case as precisely on point as White in Texas that I’ve found, but I’ve every reason to believe that the results will be similar.

 

            So, back to the rule I said earlier, Read all you want, but Recording is a No-No!  Even though one can purchase neat little eavesdropping electronics, be very careful how they are used.  Not only can a person not use those recordings in court, they could end up causing bankruptcy and/or jail time.

 

            Enjoy the NFL Playoffs!

 

J3

 

            John Powell, III handles all types of Family Law matters, including, but not limited to, divorce, child custody and support cases, adoptions and paternity matters, grandparent’s rights and access to their grandchildren, sibling interventions, and modifications of previously-issued orders of the court concerning support, possession of, and access to, a person’s children.

 

Texas' jurisdiction over foreign property

            I recently had occasion to research the question of whether a Texas divorce court can divide community marital property which is actually located outside of Texas -- specifically in this instance in a state we’ll call Inner Louisiana.  I was pleased to learn that the answer my gut provided me was right, the answer is “Yes,” but it’s more convoluted than I originally thought.  Imagine that …  a convoluted question of law.

 

            My client, a young lady who moved to Brazoria County, specifically Pearland from Inner Louisiana, shared ownership of a home in that state.  As a capital asset of the marriage, it became apparent that the equity in that residence is one of her largest assets moving forward and it was necessary to seek and protect it for her in the divorce which was filed in Angleton, in the Brazoria County District Court.

 

            One way to break down jurisdiction is jurisdiction of the court over “stuff,” and jurisdiction over “people.”  So, there is in rem jurisdiction, which is the court’s power and authority over things, and in personam jurisdiction, which corresponds to the court’s authority over people.

 

            Another generalization, a person must have “sufficient contact” with a jurisdiction, such as Texas, in order for Texas to have authority over that person.  If you’ve never set foot in Texas, and never transacted business in Texas, etc., then Texas probably can’t exert authority over you unless you consent to allow it to do so.  I’m glossing over a huge body of developed law here, but you get the picture.  More convolutions here of course.  This is where the Special Appearance comes into play, but that’s a topic for another day.

 

            If the above rules governing jurisdiction over people weren’t complicated enough, the rules regarding things and property can be even more obscure.  Oftentimes, the courts have the power to do indirectly what they’ve been told, often by themselves,  they can’t do directly.  This leads to literary gymnastics by the court in order to reach a goal the judge(s) finds justified.

 

When a party is before a Texas court, the court has in personam jurisdiction over the person and can do indirectly what it cannot do directly. In a divorce case, where the parties in the marriage own out-of-state community real property, the trial court can consider the existence and value of that realty in dividing the community property of the parties and can take several types of actions in the exercise of its equitable powers, e.g. order one party to execute a conveyance of the out-of-state property to the other party(that’d be John giving Jane a deed to it, or vice-versa), or order a judgment be assessed against one party to render a just and right division.  See Matter of Marriage of Glaze, 605 S.W.2d 721 (Tex.Civ.App.-Amarillo 1980).

 

Although a Texas trial court does not have in rem jurisdiction over the Inner Louisiana property, it can partition real property interests in foreign realty provided that the court has in personam jurisdiction over both parties and can consider existence and value of such realty in dividing estates of parties. In re Marriage of Read, 634 S.W.2d 343, 348 (Tex. App.-Amarillo 1982, writ dism'd). The court in Read further affirmed the power of the trial court to order one party to execute a conveyance of the out of state property to the other party. Id. at 349 (citing Glaze, at 724.

 

In one case the appellate court found that a trial court had not abused its discretion in awarding real and personal property located in EGYPT to one of the spouses in the divorce action. Ismail v. Ismail, 702 S.W.2d 216, 222 (Tex. App.-Houston [1st Dist.] 1985, writ ref. n.r.e.).

 

We are left with the trial court being unable to determine title to foreign realty in a divorce action, but it can consider its value in dividing the property, award it to one of the spouses, and order one party to execute a conveyance of the property. Id.

 

In the same vein as, and cited to heavily above, is the Tyropanis v. Tyropanis case, at 1992 WL 352802 (Tex.App.-Dallas), where property located in GREECE was being divided by the Texas court.

 

            So, what the above boils down to is, if:  A) the parties are properly before the Texas Court; B) the Texas Court isn’t being asked to actually determine title to property, but only to divide ownership in property whose title is clearly with the community before it – then the Texas divorce court can split up such property between the husband and wife, assigning ownership between them as the court determines is proper.  That’s a “just & right division of property,” which isn’t necessarily an “equal division,” but again, that’s a topic for a different day.

 

Merry Christmas! & Happy New Year when it gets here,

J3

 

 

            John Powell, III handles all types of Family Law matters, including, but not limited to, divorce, child custody and support cases, adoptions and paternity matters, grandparent’s rights and access to their grandchildren, sibling interventions, and modifications of previously-issued orders of the court concerning support, possession of, and access to, a person’s children.