by Tom Greenwald and Natalia Duque

It is understandable that because GPS tracking devices and spyware are so readily available, some individuals perceive their use as Alegal in family law cases.  It is also easy to empathize with those unable to resist the temptation of using these technologies to put to rest suspicions of a dishonest spouse. This article endeavors to provide a brief overview of the law applicable to electronic surveillance in the context of family relations.  It is crucial that the attorney understands the specific facts and the law before providing advice to a family law client concerning these matters.

Though electronic surveillance has always been heavily regulated, the attacks of September 11 and new technologies triggered major revisions to the law. The Patriot Act, for instance, extended the applicability of the Federal Wiretap and Stored Communications Acts to voice mails and emails. Similarly, the Federal Communications Commission passed regulations requiring cell phone carriers to provide the ability to track calls to a location within one hundred meters or less.  These carriers have now integrated GPS technology into cell phones. It is no secret then why today we have the ability to use cell phones to track the whereabouts of a Aloved one. 

These federal statutes apply to different conduct and/or technologies. The Wiretap Act prohibits any person from intercepting a wire, oral, or electronic communication without court order or the consent of one of the parties to the conversation. Thus, it applies to tape-recorded conversations, video- recorded conversations, and intercepted emails. An interesting nuance of the Act is that only the interception of emails while in transit is prohibited. The Act does not apply to an email once it is in Apost-transmission storage. Thus, the retrieval of an email stored on a computer's hard drive may not be a violation of the Act, although there could be a violation for breaching computer security or liability could exist for invasion of privacy. Though the Act provides for the exclusion of illegally obtained wire and oral communications, it does not provide for the exclusion at trial of illegally obtained emails.

The Wiretap Act also provides exceptions for consent, vicarious consent, and spousal consent. Thus, it is lawful to intercept a communication if one party to the communication gives consent; however, some states require the consent of all parties to the communication. Hence, it may be unlawful to intercept a communication if one of the parties is not in Texas. The Act also recognizes that parents and guardians of minors may have the authority to consent for their children. This exception should be dealt with carefully as different courts have limited its applicability. Also, other courts have carved out a spousal consent exception which is not recognized in Texas.

The Stored Communications Act addresses the access to stored electronic communications without authorization. The Act makes it a crime to intentionally access an electronic server facility B a phone company or Internet Service Provider. It also prohibits a service provider from divulging stored communications to an unauthorized person.  A violation of the Act can result in imprisonment, but unlike the Wiretap Act, the evidence can be admissible at trial.

In addition to the federal statutes, Texas has its own state statutes governing these issues.  In addition, in Texas it is a crime to place a tracking device in a vehicle owned or leased by another person or to access a computer, computer network, or computer system without the consent of the owner.

Often, conduct not within the purview of the federal and state statutes may result in a cause of action for invasion of privacy. Though determining whether there is a Areasonable expectation of privacy in the family context may be a challenge.

Another interesting issue is the legality of installing a GPS tracking devices in a spouse's vehicle. If the vehicle is owned or leased by the tracked spouse, then this conduct would be prohibited by Texas Penal Code section 16.06. But, if both spouses co-own the vehicle, the analysis becomes more complicated. Nonetheless, if the tracked spouse regularly drives the vehicle, the other spouse may be prosecuted for stalking.

This is a complex area of the law that is constantly changing.  Clients should consult with their attorney before engaging in any electronic surveillance.  Attorneys should proceed with caution in assessing the legality of the use of these technologies, especially in the context of family affairs.  Misapplication of the law may subject a client to sanctions, fines and/or jail time.

Tom Greenwald, a partner in Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy, PLLC, handles family law matters.  He is board certified in family law by the Texas Board of Legal Specialization.  He can be reached at tgreenwald@gbfamilylaw.com.