is it legal to record telephone conversations or intercept emails?

A very common question in my practice is whether it is legal for a person to record telephone conversations or intercept emails from their spouse in a divorce.  As with most other areas of law, there are no hard and fast answers to every factual scenario only general guidelines.  I will start by addressing the recording of telephone conversations.

In Texas you can record a telephone conversation as long as one of the parties on the line knows they are being recorded.  That means you can record your conversation with your spouse because you know that you are being recorded.  You cannot record telephone conversations between two people if they do not know they are being recorded.  For instance, you cannot record your spouse’s conversation with their lover or sister or whatever.  That is wiretapping and can get you into some serious criminal trouble.

The next question that typically arises is whether you can record your wife or husband’s telephone conversation with your child? The general answer is yes.  Since a child is not old enough to consent to being recorded, the parent can consent for them.  If the parent consents to recording the conversation between the child and the other parent, then at least one party on the line knows they are being recorded.

As I stated above, however, these are general guidelines as every case is factually different.  You should always consult with a lawyer before embarking on a telephone recording campaign.  Factors such as phone calls to other states or out of the country could take this to a whole new level.  Be careful.  What is legal in Texas may not be legal in Arizona and if you are recording a conversation between a phone in Texas and a phone in Arizona you could open yourself up to criminal liability in Arizona.

The next topic is whether it is legal to intercept emails from your spouse.  Obviously you are not a party to the emails, otherwise you would have a copy.  This situation arises when you are snooping through your spouse’s email account.  Things get a little more dicey here.  It usually boils down to the spouse’s expectation of privacy and the availability of the email program and passwords, meaning was it a computer that everyone had access to in the house, was the password readily available, etc… No expectation of privacy then they become fair game, or do they?  There is a case out of Michigan where a husband was checking his wife’s gmail account from their home computer and she kept her passwords right next to the computer.  Did she have any expectation of privacy? Doesn’t sound like it.  However, that did not stop the District Attorney’s office from filing charges on him.  You can read more about this case in this MSNBC article.  What if you set up the spouse’s email software to forward you all emails they receive?  You may want to read this case on arstechnica.com.  What about key tracking software that sends a report of what was typed?  There is no easy answer to these questions.

Is it legal to record telephone conversations?  Sometimes.   Is it legal to intercept emails?  Maybe.  Consult a lawyer and be careful.  That is the best advise I can give.

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