Accessing Stored Communications in Texas Divorce and Custody Cases

If you’re involved in an acrimonious divorce or custody case, one of your keys to winning will be gathering evidence. However, in doing so, it’s important not to expose yourself to criminal or civil liability.

In a previous blog post, we discussed how wiretapping laws could play a role in Texas divorce and custody cases. Today, we’re looking at similar laws - the Federal Stored Communications Act, or FSCA, and the Texas Stored Communications Act, or TSCA. The TSCA largely mirrors the FSCA. These laws prohibit unauthorized access to stored communications or exceeding authorized access to such information.

While the Federal Wiretap Act we discussed in the previous post focuses on the interception of communications in transmission, the FSCA focuses on illegally accessing stored electronic communications. The most common stored communications are emails. However, not every email qualifies under the Act, and the reasons why can be complicated. For example, once an email is opened, it is no longer considered stored and therefore loses its protection. However, some courts still consider these opened emails that remain on a webmail server protected if they are stored for backup purposes. Notably, the FSCA does not contain a similar provision to the Federal Wiretap Act that disqualifies any illegally accessed information from being used in a court proceeding.

There can be both criminal and civil penalties for a violation of the Stored Communications Act. Criminally, an offender can be fined and imprisoned for anywhere from one to ten years. In a civil suit, a violator will have to pay actual damages plus any profits made from the violation in addition to punitive damages if the court deems necessary. If a person commits a similar offense under Texas law, the act becomes a class A misdemeanor or a state jail felony.

As you can see, accessing someone else’s electronic communications without permission can have serious consequences. In addition, unless you collect evidence properly, it may not be of any use to you in your underlying case. That’s why it’s important to have experienced, competent legal counsel advising you through your divorce or custody dispute. In other words, you need a lawyer like Robert Tsai. Click here to schedule a consultation today, or call us at 832-278-1995.