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The gods visit the sins of the fathers upon the children. Euripides - 480 B.C., Phrixus. Frag. 970.
I. Overview
As long ago as Adam and Eve and the fall of man, there has been curiosity. When curiosity and the parent-child relationship collide, the result can predictably lead to quite a fiasco, or even worse. Parents have always been protective of their children. This article explores the right of a parent to access and intercept an electronic, telephonic or computer transmissions of a child. This article also addresses generally the laws applicable to the public and considers how such laws apply between a parent and a child. Although a parent has great latitude with respect to the care, custody, and upbringing of his or her child, should such right be an unfettered one? Does a child have a right to privacy from a parent?
II. Federal Law
The United States Code makes it an offense to unlawfully intercept electronic communications. There are, of course, exceptions to this rule. For example, the United States Attorney General's office may place wiretaps when it has probably cause to believe that certain enumerated federal offenses have been committed. Chapter 18, Sec. 2511 of the United States Code provides that interception and disclosure of wire, oral, or electronic communications is prohibited.
A. Five Prohibitions
The statute reads as follows:
(e) (i) intentionally discloses, or endeavors to disclose, to any other
person the contents of any wire, oral, or electronic communication,
intercepted by means authorized by sections 2511(2)(a)(ii),
2511(2)(b)-(c), 2511(2)(e), 2516, and 2518 of this chapter, (ii) knowing or
having reason to know that the information was obtained through the
interception of such a communication in connection with a criminal
investigation, (iii) having obtained or received the information in
connection with a criminal investigation, and (iv) with intent to improperly
obstruct, impede, or interfere with a duly authorized criminal investigation,
shall be punished as provided in subsection (4) or shall be subject to suit
as provided in subsection (5).
It is not unlawful for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State. 18 U.S.C.A. § 2511(2)(d).
It is also not unlawful for any person to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public. 18 U.S.C.A. § 2511(2)(g)(i).
C. Penalties
Generally, whoever violates the foregoing statute must be fined or imprisoned not more than five years, or both. 18 U.S.C.A. § 2511(4)(a). If the offense is a first offense and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication is a radio communication that is not scrambled, encrypted, or transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of such communication, then - (i) if the communication is not the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication or a paging service communication, the offender can be fined or imprisoned not more than one year, or both; and (ii) if the communication is the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication or a paging service communication, the offender can only be fined.
III. Texas Law
A. Criminal Law
Texas law also includes additional protections concerning wire, oral or electronic communications.
1. Offenses
A person commits an offense under Texas Penal Code section 16.02 if he:
(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if he 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 he 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.
2. Defenses
It is a defense to prosecution if:
(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 article to intercept a wire, oral, or electronic communication;
(3) a person acting under color of law intercepts 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;
(4) a person not acting under color of law intercepts 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 unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of this state or for the purpose of committing any other injurious act;
(5) a person acting under color of law intercepts a wire, oral, or electronic communication if:
(B) an immediate life-threatening situation exists;
(C) the person is a member of a law enforcement unit specially trained to:
(ii) install electronic, mechanical, or other devices; and
(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:
(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.
B. Civil Law
Texas law also provides for remedies in civil court for the unlawful interception of private communications. Section 123.001 of the Civil Practice and Remedies Code sets out the preliminary definitions. (1) "Communication" is defined as speech uttered by a person or information including speech that is transmitted in whole or in part with the aid of a wire or cable. (2) "Interception" is defined as the aural acquisition of the contents of a communication through the use of an electronic, mechanical, or other device that is made without the consent of a party to the communication, but does not include the ordinary use of: (A) a telephone or telegraph instrument or facility or telephone and telegraph equipment; (B) a hearing aid designed to correct subnormal hearing to not better than normal; (C) a radio, television, or other wireless receiver; or (D) a cable system that relays a public wireless broadcast from a common antenna to a receiver.
1. Cause of Action
A party to a communication may sue a person who: (1) intercepts, attempts to intercept, or employs or obtains another to intercept or attempt to intercept the communication; (2) uses or divulges information that he knows or reasonably should know was obtained by interception of the communication; or (3) as a landlord, building operator, or communication common carrier, either personally or through an agent or employee, aids or knowingly permits interception or attempted interception of the communication.
2. Damages
A person who establishes a cause of action is entitled to: (1) an injunction prohibiting a further interception, attempted interception, or divulgence or use of information obtained by an interception; (2) statutory damages of $1,000; (3) all actual damages in excess of $1,000; (4) punitive damages in an amount determined by the court or jury; and (5) reasonable attorney's fees and costs.
IV. Court Determinations
Courts have provided little guidance concerning the issue of whether a parent may eavesdrop on his or her child. The relevant case law 1) generally addresses the rights of parents to raise their children and 2) generally addresses the statutes mentioned above and their relationship to family units.
A. Parents' Rights
The fundamental right of a parent to raise a child free from government interference is protected by the United States Constitution. In recent years the Supreme Court has given this right greater importance than the "best interest of the child" standard employed in most states. The Fourteenth Amendment of the Constitution of the United States requires that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Article 1, Section 19 of the Texas Constitution further provides that "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." The United States Supreme Court has held that "it cannot be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children." Troxel v. Granville, 530 U.S. 57; 120 S.Ct 2054, 2061 (2000). The child is not a mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925). Accordingly, so long as a parent adequately cares for his or her children (ie. is fit), there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. Troxel, 120 S.Ct. at 2061. There is a presumption that a fit parent will act in the best interest of his or her child. Parham v. J.R., 442 U.S. 584, 602 (1979). The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. Id . Being of fundamental importance, the familial relationship is ordinarily subject only to regulation that can survive rigorous judicial scrutiny. Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977).
B. Reasonable Expectation of Privacy
Does a child have a right to privacy from a parent? The right to privacy is found in the Fourth Amendment of the United States Constitution. The "touchstone of Fourth Amendment analysis is whether a person has a 'constitutionally protected reasonable expectation of privacy." California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)); see also Smith v. Maryland, 442 U.S. 735, 740 (1979). Courts have consistently held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' that has been invaded by government action." Kee v. City of Rowlett, No. 99-10555(5th Cir. March 28, 2001) Following the Katz standard, the Fourth Amendment analysis embraces two questions. First, whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that he [sought] to preserve [something] as private. . . . Second, whether the individual's expectation of privacy is one that society is prepared to recognize as reasonable." Bond v. United States, 529 U.S. 334, 338 (2000)
The Fourth Amendment protects people, not places. What a person
knowingly exposes to the public, even in his own home or office, is not a subject
of Fourth Amendment protection. But what he seeks to preserve as private, even
in an area accessible to the public, may be constitutionally protected." Kee v.
City of Rowlett, No. 99-10555(5th Cir. March 28, 2001); see also United States v.
Jackson, 588 F.2d 1046, 1052 (5th Cir. 1979) ("No matter where an individual is,
whether in his home, a motel room, or a public park, he is entitled to a 'reasonable'
expectation of privacy." (citing Katz, 389 U.S. at 359) (Douglas, J., concurring)).
Thus, while appropriate to determine the expectation of privacy in the context of
searches of physical real property, Cardoza-Hinojosa fails to engage the more
difficult questions arising from oral communications, especially those
communications that occur in areas accessible to the public. See Katz, 389 U.S. at
352 ("[W]hat [Katz] sought to exclude when he entered the booth was not the
intruding eye -- it was the uninvited ear. He did not shed his right to do so simply
because he made his calls from a place where he might be seen."); see also United
States v. Smith, 978 F.2d 171, 179 (5th Cir. 1992) ("Courts should bear in mind
that the issue is not whether it is conceivable that someone could eavesdrop on a
conversation but whether it is reasonable to expect privacy.").
Analogous cases involving the reasonable expectation of privacy afforded
to oral communications in the eavesdropping and wiretap contexts also provide
further guidance. Primarily, courts have looked to considerations such as (1) the
volume of the communication or conversation; (2) the proximity or potential of
other individuals to overhear the conversation; (3) the potential for
communications to be reported; (4) the affirmative actions taken by the speakers
to shield their privacy; (5) the need for technological enhancements to hear the
communications; and (6) the place or location of the oral communications as it
relates to the subjective expectations of the individuals who are communicating.
These considerations help develop, but do not define, a set of nonexclusive factors
to evaluate the subjective expectation of privacy in oral communications in
publicly accessible spaces. See O'Connor v. Ortega, 480 U.S. 709, 718 (1987)
(recognizing in the context of work environments that determinations of a
"reasonable expectation of privacy must be addressed on a case- by-case basis");
United States v. Smith, 978 F.2d 171, 180 (5th Cir. 1992) ("Any determination of
the reasonableness of an individual's expectation of privacy is necessarily fact
intensive.").
The right to privacy in the Fourth Amendment protects citizens from government. If such a right were capable of being extended between a parent and child, should it?
C. Texas Application
In Collins v. Collins, 904 S.W.2d 792 (Tex.App.-Houston [1st Dist.] 1995, writ denied) the court addressed the issue of whether one spouse may record the telephone conversations of the other spouse without consent. Mr. and Mrs. Collins were going through a divorce proceeding and Mr. Collins was wiretapping Mrs. Collins. In Collins, the court noted that Texas courts of appeals have held that the interception of a telephone conversation by a spouse is illegal. Kent v. State, 809 S.W.2d 664, 668 (Tex.App.--Amarillo 1991, pet. ref'd) (defendant violated former Tex.Penal Code §§ 16.02 by placing a wiretap on the wife's telephone); Turner v. PV Int'l Corp., 765 S.W.2d 455, 469-71 (Tex.App.--Dallas 1988), writ denied per curiam, 778 S.W.2d 865, 866 (Tex.1989). Neither the state nor the federal wiretap statutes contain any exception for wiretaps between spouses. See Kent, 809 S.W.2d at 668 (Texas statute); Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir.1989) (federal statute). In United States v. Giordano, 416 U.S. 505, 514, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974), the Court said: [T]he purpose of the legislation [18 U.S.C. §§ 2510] was effectively to prohibit ... all interceptions of oral and wire communications, except those specifically provided for in the Act. It should be noted that there is also no parent-child exceptions for wiretaps or interception of other electronic communication.
Texas courts have long recognized both a common law and a constitutional right of privacy. State Employees Union v. Dep't of Mental Health, 746 S.W.2d 203, 205 (Tex.1987) (the right of privacy is implicit in the Texas Constitution); Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex.1973) (a homeowner has a cause of action for illegal wiretap of residence based on the common-law right of privacy). Nothing in the Texas Constitution or our common law suggests that the right of privacy is limited to unmarried individuals.
Only two federal courts of appeals have held the federal wiretap statute exempts spouses from its prohibitions. Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977); Simpson v. Simpson, 490 F.2d 803, 809 (5th Cir.1974). Those opinions have been widely criticized by courts too numerous to mention.
V. Conclusion
The relevant statutes and case law lead to the conclusion that there is no parent-child exception to the statutes prohibiting the interception of communications statutes. In the family context, these statutes have applied and been upheld in the vast majority of courts. However, this commentator believes that if this issue were presented to a court of law, such court would most likely defer to the parent in such case because of the fundamental right for a parent to raise a child.
Holmes, Diggs, Eames & Puhl
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