On November 13, 2007, there was an article in the Austin American Statesman about Shwan Macleod, a man who was sentenced to four years in prison for spying on his estranged wife's email and other communications. Section 16.02(b)(1) of the Texas Penal Code creates a second degree felony (punishment range 2-20 years) for interception of voice, wire or electronic communications. Since email, text messages, internet chat and social networking sites like Facebook and MySpace have exploded over the last several years, exactly what type conduct is prohibited when it comes to viewing another's emails and instant messages? In other words, if I want to know whether my spouse is having an affair, can I hack into her email or My Space page without any legal jeopardy.
There are both federal and state statutes that address this issue. The federal statute is 18 U.S.C. 2701, called "The Stored Communications Act." This law prohibits accessing electronic communications (like emails) while the communication is in "electronic storage" unless one of the parties who participates in the communication gives permission. Although there are some possible loopholes (e.g., sharing common passwords), if the files are password protected, there is an expectation of privacy and the communications are presumed to be private.
Programs called keystroke loggers, sometimes also called "spyware" or "snoopware," are cheap and easily obtained. This type program records all the keystrokes on the computer, and additionally can capture pages of internet sites and instant message communications, so one can find out what use is being made of the computer. The software is legal if the purpose is to check on where the child is going on the internet (implied consent), and also for employers who have releases from employees (express consent). However, when the actor puts the snoopware on the computer at home, captures passwords and communications of another person without their knowledge or permission (spouse, domestic partner, significant other, etc.) then prints out the communication, a legal line has been crossed.
The fact that the conviction noted above was placed by the editors on the front page, above the fold, tells us something about how rare criminal prosecution for internet spying is at this time, however, evidence obtained with this software is becoming more common in the divorce context. Documents obtained illegally are not admissible in court Collins v. Collins, 904 S.W 2nd, 792). Also, the person whose communications were "snooped" has a civil remedy. Section 123.002 of the Texas Civil Practice and Remedies Code provides a mandatory $10,000.00 fine for each occurrence. The penalty is applicable to the person who acquired the documents, as well as any person who disseminates them (like their lawyer).
Tracking devices have their own separate statute, also outlawing their use on another person's auto (Texas Penal Code 16.06).
While using technology may seem like a really clever idea to find out what your spouse is doing on the internet, the privacy issue creates a trap for the unwary. Our elected representatives have taken internet privacy seriously. Just because you can legally buy and install the software does not make its use legal.
Shawn's lawyer stated that he would be surprised if his client knew what he was doing was against the law. People who think they are going to wave a great piece of evidence in front of the judge in their family law case had better think twice. It is always better to learn from someone else's mistakes, so until there is more guidance from the courts about snoopware and evidence obtained by using it, the better practice is to get the evidence using tried and true discovery tools that we know are legal.