Does a Spouse Have an Expectation of Privacy When It Comes to GPS Tracking or Cellphones?

Can one spouse track another spouse’s whereabouts with a hidden and undisclosed car GPS device

Case law in this area is very limited.  Texas Penal Code §16.06 states that a person commits a misdemeanor “if the person knowingly installs an electronic or mechanical device tracking device on a motor vehicle owned or leased by another person.” However, if the vehicle is community property, then a person may not violate the statue even if they are not listed as the owner of the vehicle.

So what about cellphones?  Can a spouse rummage through another spouse’s cellphone? Is there an expectation of privacy even if it is considered community property?

The cautionary answer is that a spouse may enjoy statutory digital privacy rights in jointly owned property under Texas Law, including those on a computer.

Various case law has held that a cellphone qualifies as a computer and has rejected the position that a person has effective consent to access a cellphone because it was community property.

Texas Penal Code §16.06 criminalizes unauthorized computer access.  It is a Class B misdemeanor or a state jail felony if a person knowingly access a computer, computer network or computer system, without the effective consent of the owner.

Owner is defined as a person who, inter alia “(A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; [or] (B) has the right to restrict access to the property [.]” Texas Penal Code §33.01(15).

Based on this a spouse, whose cellphone is used by them on a daily basis and it is their primary means of contact, has the right to password protect the phone and the other spouse has no legal right to access it without their permission.  To do so could be a possible violation of the Texas Harmful Access by Computer Act which grants a civil cause of action to victims of computer crimes.

Should you find yourself in need of legal guidance on this subject, contact the attorneys at Waldron & Schneider to schedule your appointment.
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