Can a Spouse Put Spyware on a Spouse's Cell Phone?

Full Question:

Is it legal (or illegal) to covertly place 'spyware' on one's spouse's cell phone to monitor their SMS and location whereabouts. This is done without thew spouse's knowledge. Texas is a community property State and the phone in question was purchased while the coupke was married. The spouse being monitored was suspected of infidelity; confirmed via the SMS exchanges. If legal, can the SMS logs be utilized in Divorce Court.
03/17/2011   |   Category: Privacy   |   State: Texas   |   #24427

Answer:

The question of the phone's ownership will be a primary factor, and a subjective determination for the court based on the facts and circumstances involved. Factors, among others, the court may consider include source of funds for acquisition, who paid the bill, and whose name was on the bill. Even if the court finds it was community property, and liability under wiretap and other laws isn't applied, a claim for invasion of privacy may be raised.

The law surrounding the unauthorized access of SMS information is evolving. If the unauthorized access of information is obtained from an individual’s cell phone, the common-law tort of invasion of privacy provides a civil remedy. There is a common-law tort of invasion of privacy, which may be pursued when a person obtains information in a way considered “highly offensive to a reasonable person.” This common-law tort may exist even if the action is not prohibited by wiretap statutes.
RESTATEMENT (SECOND) OF TORTS, §652B (1977) provides:

“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns, is subject to liability to the other for the invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

The following are TX statutes:


§ 16.04 PENAL. Unlawful Access to Stored Communications

(a) In this section, "electronic communication," "electronic storage,"
"user," and "wire communication" have the meanings assigned to those
terms in Article 18.21, Code of Criminal Procedure.

(b) A person commits an offense if the person obtains, alters, or
prevents authorized access to a wire or electronic communication while the
communication is in electronic storage by:

(1) intentionally obtaining access without authorization to a
facility through which a wire or electronic communications service is
provided; or

(2) intentionally exceeding an authorization for access to a facility
through which a wire or electronic communications service is provided.

(c) Except as provided by Subsection (d), an offense under
Subsection (b) is a Class A misdemeanor.

(d) If committed to obtain a benefit or to harm another, an offense is
a state jail felony.

(e) It is an affirmative defense to prosecution under Subsection (b)
that the conduct was authorized by:

(1) the provider of the wire or electronic communications service;

(2) the user of the wire or electronic communications service;

(3) the addressee or intended recipient of the wire or electronic
communication; or

(4) Article 18.21, Code of Criminal Procedure.

§ 16.02 PENAL PENAL Unlawful Interception, Use, or
Disclosure of Wire, Oral, or Electronic Communications

(a) In this section, "computer trespasser," "covert entry,"
"communication common carrier," "contents," "electronic communication,"
"electronic, mechanical, or other device," "immediate life-threatening
situation," "intercept," "investigative or law enforcement officer,"
"member of a law enforcement unit specially trained to respond to and
deal with life-threatening situations," "oral communication," "protected
computer," "readily accessible to the general public," and "wire
communication" 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;

(2) intentionally discloses or endeavors to disclose to another person
the contents of a wire, oral, or electronic communication if the person
knows or has reason to know the information was obtained through the
interception of a wire, oral, or electronic communication in violation of
this subsection;

(3) intentionally uses or endeavors to use the contents of a wire,
oral, or electronic communication if the person knows or is reckless
about whether the information was obtained through the interception of a
wire, oral, or electronic communication in violation of this subsection;

(4) knowingly or intentionally effects a covert entry for the purpose
of intercepting wire, oral, or electronic communications without court
order or authorization; or

(5) intentionally uses, endeavors to use, or procures any other person
to use or endeavor to use any electronic, mechanical, or other device to
intercept any oral communication when the device:

(A) is affixed to, or otherwise transmits a signal through a wire,
cable, or other connection used in wire communications; or

(B) transmits communications by radio or interferes with the
transmission of communications by radio.

(c) It is an affirmative defense to prosecution under SubSection (b)
that:

(1) an operator of a switchboard or an officer, employee, or agent of a
communication common carrier whose facilities are used in the
transmission of a wire or electronic communication intercepts a
communication or discloses or uses an intercepted communication in the
normal course of employment while engaged in an activity that is a
necessary incident to the rendition of service or to the protection of
the rights or property of the carrier of the communication, unless the
interception results from the communication common carrier's use of
service observing or random monitoring for purposes other than mechanical
or service quality control checks;

(2) an officer, employee, or agent of a communication common carrier
provides information, facilities, or technical assistance to an
investigative or law enforcement officer who is authorized as provided by
this Section to intercept a wire, oral, or electronic communication;

(3) a person acting under color of law intercepts:

(A) a wire, oral, or electronic communication, if the person is a party
to the communication or if one of the parties to the communication has
given prior consent to the interception;

(B) a wire, oral, or electronic communication, if the person is acting
under the authority of Article 18.20, Code of Criminal Procedure; or

(C) a wire or electronic communication made by a computer trespasser
and transmitted to, through, or from a protected computer, if:

(i) the interception did not acquire a communication other than one
transmitted to or from the computer trespasser;

(ii) the owner of the protected computer consented to the interception
of the computer trespasser's communications on the protected computer;
and

(iii) actor was lawfully engaged in an ongoing criminal investigation
and the actor had reasonable suspicion to believe that the contents of
the computer trespasser's communications likely to be obtained would be
material to the investigation;

(4) a person not acting under color of law intercepts a wire, oral, or
electronic communication, if:

(A) the person is a party to the communication; or

(B) one of the parties to the communication has given prior consent to
the interception, unless the communication is intercepted for the purpose
of committing an unlawful act;

(5) a person acting under color of law intercepts a wire, oral, or
electronic communication if:

(A) oral or written consent for the interception is given by a
magistrate before the interception;

(B) an immediate life-threatening situation exists;

(C) the person is a member of a law enforcement unit specially trained
to:

(i) respond to and deal with life-threatening situations; or

(ii) install electronic, mechanical, or other devices; and

(D) the interception ceases immediately on termination of the
life-threatening situation;

(6) an officer, employee, or agent of the Federal Communications
Commission intercepts a communication transmitted by radio or discloses
or uses an intercepted communication in the normal course of employment
and in the discharge of the monitoring responsibilities exercised by the
Federal Communications Commission in the enforcement of Chapter 5,
Title 47, United States Code;

(7) a person intercepts or obtains access to an electronic
communication that was made through an electronic communication system
that is configured to permit the communication to be readily accessible
to the general public;

(8) a person intercepts radio communication, other than a cordless
telephone communication that is transmitted between a cordless telephone
handset and a base unit, that is transmitted:

(A) by a station for the use of the general public;

(B) to ships, aircraft, vehicles, or persons in distress;

(C) by a governmental, law enforcement, civil defense, private land
mobile, or public safety communications system that is readily accessible
to the general public, unless the radio communication is transmitted by a
law enforcement representative to or from a mobile data terminal;

(D) by a station operating on an authorized frequency within the bands
allocated to the amateur, citizens band, or general mobile radio
services; or

(E) by a marine or aeronautical communications system;

(9) a person intercepts a wire or electronic communication the
transmission of which causes harmful interference to a lawfully operating
station or consumer electronic equipment, to the extent necessary to
identify the source of the interference;

(10) a user of the same frequency intercepts a radio communication made
through a system that uses frequencies monitored by individuals engaged
in the provision or the use of the system, if the communication is not
scrambled or encrypted; or

(11) a provider of electronic communications service records the fact
that a wire or electronic communication was initiated or completed in
order to protect the provider, another provider furnishing service
towards the completion of the communication, or a user of that service
from fraudulent, unlawful, or abusive use of the service.

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

(1) intentionally manufactures, assembles, possesses, or sells an
electronic, mechanical, or other device knowing or having reason to know
that the device is designed primarily for nonconsensual interception of
wire, electronic, or oral communications and that the device or a
component of the device has been or will be used for an unlawful
purpose; or

(2) places in a newspaper, magazine, handbill, or other publication an
advertisement of an electronic, mechanical, or other device:

(A) knowing or having reason to know that the device is designed
primarily for nonconsensual interception of wire, electronic, or oral
communications;

(B) promoting the use of the device for the purpose of nonconsensual
interception of wire, electronic, or oral communications; or

(C) knowing or having reason to know that the advertisement will
promote the use of the device for the purpose of nonconsensual
interception of wire, electronic, or oral communications.

(e) It is an affirmative defense to prosecution under SubSection (d)
that the manufacture, assembly, possession, or sale of an electronic,
mechanical, or other device that is designed primarily for the purpose of
nonconsensual interception of wire, electronic, or oral communication is
by:

(1) a communication common carrier or a provider of wire or electronic
communications service or an officer, agent, or employee of or a person
under contract with a communication common carrier or provider acting in
the normal course of the provider's or communication carrier's business;

(2) an officer, agent, or employee of a person under contract with,
bidding on contrActs with, or doing business with the United States or
this state acting in the normal course of the activities of the United
States or this state;

(3) a member of the Department of Public Safety who is specifically
trained to install wire, oral, or electronic communications intercept
equipment; or

(4) a member of a local law enforcement agency that has an established
unit specifically designated to respond to and deal with life-threatening
situations.

(f) An offense under this Section is a felony of the second degree,
unless the offense is committed under SubSection (d) or (g), in which
event the offense is a state jail felony.

(g) A person commits an offense if, knowing that a government attorney
or an investigative or law enforcement officer has been authorized or has
applied for authorization to intercept wire, electronic, or oral
communications, the person obstructs, impedes, prevents, gives notice to
another of, or attempts to give notice to another of the interception.

(h) Repealed by Acts 2005, 79th Leg., ch. 889, § 1,

For further siscussion, please see:

http://www.divorcesource.com/NJ/ARTICLES/sliwinski65.html

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