DON’T HACK ME BRO:
SOCIAL MEDIA, WIRETAPPING, AND INTERCEPTED EVIDENCE IN FAMILY LAW
State Bar of Texas
FAMILY LAW TECHNOLOGY 360:
EVERYTHING YOU NEED TO KNOW FOR YOUR 21ST CENTURY PRACTICE
December 4-5, 2014
TABLE OF CONTENTS
- FEDERAL WIRETAP ACT. 2
- Interception. 2
- Definition. 2
- Cordless, Wireless, or Cellular Communications. 2
- Use and Disclosure. 2
- Definitions. 3
- Wire Communication. 3
- Oral Communication. 3
- Electronic Communication. 3
- Penalties. 3
- Criminal. 3
- Civil. 3
- Statute of Limitations. 4
- Exclusionary Rule. 4
- Consent. 5
- One-Party Consent. 5
- All-Party Consent. 5
- No Spousal Exception. 5
- Vicarious Consent. 6
- TEXAS STATE WIRETAPPING LAW. 6
- Offense. 6
- Penalties. 7
- Criminal. 7
- Civil. 7
- Damages. 7
- OVERLAP BETWEEN WIRETAP ACT AND STORED COMMUNICATIONS ACT. 8
- Offense. 8
- Definitions. 9
- Wire and Electronic Communications. 9
- Electronic Storage. 9
- Penalties. 9
- Criminal. 9
- Civil. 10
- Statute of Limitations. 10
- FIRST AMENDMENT. 11
- Filming Police. 11
- Recording Public Figures. 11
- Online Threats. 11
- OTHER TEXAS COMPUTER CRIMES. 11
- Online Impersonation. 11
- Breach of Computer Security. 12
- Civil Cause of Action. 14
- CONCLUSION.. 14
This article will give an overview of state and federal laws relating to wiretapping and interception of data, including both criminal laws and civil causes of action. This paper focuses on the portions of the laws that are most likely to affect an attorney in private practice. There are many other sections of the laws relating to law enforcement and criminal investigations that are beyond the scope of this paper.
The federal laws are very complex and technical, often requiring fine-grained statutory interpretation to understand. It would be possible to write an entire textbook on the intricacies of these laws. This article is designed to give a brief overview of the landscape of these interlocking laws so that the practicing attorney will have a basic understanding of the framework and will have a starting point for more in-depth learning.
This paper contains an extensive discussion of federal laws relating to wiretapping and data interception. These federal laws are relevant to attorneys who practice exclusively in state court because these federal claims may be brought in state court. Although it is currently rare, it would be possible to add a federal Wiretap Act civil claim to a divorce case, for example.
This stems from the United States Constitutional system of federalism, which provides that federal courts are courts of limited jurisdiction, while state courts are courts of general jurisdiction. Nothing in the concept of the federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in United States judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule. Under the federal system, the states possess sovereignty concurrent with that of the federal government, subject only to limitations imposed by the Supremacy Clause. Under this system of dual sovereignty, the U.S. Supreme Court has consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the federal laws of the United States.
A state court is only precluded from hearing federal claims if Congress has given exclusive jurisdiction to federal courts. To give federal courts exclusive jurisdiction over a federal cause of action, Congress must, in an exercise of its powers under the Supremacy Clause, affirmatively divest state courts of their presumptively concurrent jurisdiction. Absent an exclusive grant of jurisdiction to the federal courts in the Congressional act, state courts of general jurisdiction have concurrent authority to adjudicate federally created causes of action.
Specifically, state courts have jurisdiction over federal wiretap claims. Nothing in the federal wiretapping act suggests that Congress confined jurisdiction solely to the federal courts. Texas courts have addressed claims under the Federal Wiretap Act.
For the reasons stated below, it will be increasingly likely to encounter these federal claims, even in a state-court practice.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, more commonly known as the “Wiretap Act,” is found at 18 U.S.C. §§ 2510-2522. As the name suggests, the Wiretap Act was passed in the 1960s. Although it was updated in 1986 and 1994, it can be an imperfect match for many of the modern technologies that have been created in the 20 years since its last update. Courts have held that:
the intersection of these two statutes is a complex, often convoluted, area of the law. The difficulty is compounded by the fact that the ECPA was written prior to the advent of the Internet and the World Wide Web. As a result, the existing statutory framework is ill-suited to address modern forms of communication. Courts have struggled to analyze problems involving modern technology within the confines of this statutory framework, often with unsatisfying results. Until Congress brings the laws in line with modern technology, protection of the Internet will remain a confusing and uncertain area of the law.
The Electronic Communications Privacy Act of 1986 (ECPA) amended the Wiretap Act to include electronic data and added the Stored Communications Act, 18 U.S.C. §§ 2701-2712. Sometimes cases will refer to the wiretap laws as Title I of the ECPA and to the Stored Communications Act as Title II of the ECPA.
The Wiretap Act generally sets forth three categories of offenses: interception of communications, use of intercepted communications, and disclosure of intercepted communications. (There is a fourth category of offenses, dealing with mechanical devices or “bugs.” This paper will not address those offenses, because they are not as relevant to the general practice of the audience for this paper.) The Wiretap Act also contains a civil cause of action and a strict exclusionary rule.
The Wiretap Act is violated when any person:
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication.
The Wiretap Act is an extremely technical statute. Most of the words used are statutorily-defined terms which differ from the commonly-understood definitions of the words. Any time you are working with the federal statutes, it is extremely important to read and re-read the defined terms. The definitions of “wire communication,” “oral communication,” and “electronic communication” are discussed in more detail below.
In 1968, when the Wiretap Act was originally enacted, cordless, wireless, or cellular phones did not exist as a consumer product. Therefore, under the original act, cordless, wireless, or cellular transmissions were considered “radio transmissions” and were not protected at all against interception. Courts further held that no one could have any reasonable expectation of privacy in such conversations. Now, however, most people strongly believe that there is an expectation of privacy in cordless or wireless conversations, and in fact the Act was updated in 1994 to explicitly protect such communications. In 2001, the U.S. Supreme Court confirmed that the Wiretap Act “now applies to the interception of conversations over both cellular and cordless phones.”
The Wiretap Act is also violated when any person “uses” or “discloses” the contents of an intercepted communication:
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
The Wiretap Act prohibits the disclosure of “any information concerning the substance, purport, or meaning of that communication.” Therefore, even revealing the general nature of a communication or intimating its contents may constitute an actionable disclosure. However, knowledge or reason to know of the illegality is an element of this offense.
Note: An attorney can have personal criminal and civil liability for using or disclosing an improper recording made by a client. For example, the following can be separate and independent wiretap violations: (1) client disclosure to attorney, (2) attorney’s use of information in pleadings, and (3) attorney’s and client’s disclosures in summary judgment pleadings and affidavits. There is no attorney immunity.
Under the Wiretap Act, statutory definitions are critical.
“Wire communication” means “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection….” A “wire” communication must be “aural,” or spoken by a human. It must also be transmitted at least in part by a wire. Wire communications are protected against interception regardless of the speaker’s expectation of privacy.
“Oral communication” means “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication.” Typically, oral communications include face-to-face communications where the participants have a reasonable expectation of noninterception. The statute requires a court to determine whether a person had a subjective expectation that her conversations were free from interception, and whether that expectation was objectively reasonable. It is not a violation to record oral communications where there is no reasonable expectation of privacy.
“Electronic communication” means “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system…but does not include any wire or oral communication….”
Criminal penalties for a violation of the Wiretap Act include a fine, imprisonment up to five years, or both.
The Wiretap Act also provides a civil cause of action for “any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used….” The Wiretap Act provides for civil remedies including equitable relief (injunctions), damages, punitive damages, and reasonable attorney’s fees and costs. As damages, the court may assess the greater of:
- Actual damages,
- Statutory damages of $100 a day for each day of violation, or
The $10,000 in statutory damages is not per violation, but is a single sum that applies to a closely-related course of conduct over a relatively short period of time. However, if multiple persons’ communications were intercepted, the statutory damages are per plaintiff. There is a split among federal circuits as to whether the $10,000 amount is a minimum that must be awarded or whether a court has the discretion to decline to award that amount.
Courts holding that damages are discretionary:
- Goodspeed v. Harman, 39 F.Supp.2d 787 (N.D. Tex. 1999)
- DirecTV, Inc. v. Brown, 371 F.3d 814 (11th 2004)
- Reynolds v. Spears, 93 F.3d 428 (8th 1996)
- Nally v. Nally, 53 F.3d 649 (4th 1995)
Courts holding that damages are mandatory:
- Rodgers v. Wood, 910 F.2d 444 (7th 1990)
- Menda Biton v. Menda, 812 F.Supp. 283 (D.P.R., 1993)
In order to obtain punitive damages, a party must prove a wanton, reckless, or malicious violation. Courts have ruled that if a party had some sort of legitimate explanation for the recordings, then punitive damages are not merited.
Wiretap Act claims are likely to become more frequent when attorneys realize that the law provides for large statutory damages in addition to attorney’s fees.
Federal Example – Rodgers v. Wood
Rodgers v. Wood, 910 F.2d 444 (7th Cir.1990). Milwaukee police officers were executing a search warrant and used a phone in the home to trace serial numbers on merchandise and also to call a TV show host. The homeowner had a recording device installed, which recorded all calls. The recording of the conversation with the TV host showed that the officers had previously contacted the host and revealed the fact that they would be searching the residence for stolen goods. In Wisconsin, it was against the law to disclose the issuance of a search warrant prior to its execution. The homeowner gave the recordings to his attorney. During the attorney’s representation, the attorney disclosed the contents of the police officers’ taped telephone conversations on at least four occasions, including to the district attorney, the Internal Affairs Division, and in a document filed in connection with sentencing in the underlying case. The police officers sued the attorney in federal court, under the civil cause of action contained in the Wiretap Act. The attorney stipulated that the wire communication was unauthorized under the Act and that it was disclosed without permission. However, he argued that his disclosures were protected by common law privileges attaching to persons reporting criminal activity and by an attorney-client privilege. The court rejected the defenses, granted the officers’ motion for summary judgment, and imposed statutory damages of $20,000 against the attorney.
Federal Example – Bess v. Bess
Bess v. Bess, 929 F.2d 1332, 1335 (8th Cir. 1991). Husband and wife separated after 26 years of marriage. Several months prior to separation, Husband attached a hidden tape recorder to the basement telephone line of the marital residence, which operated intermittently until Wife found and removed it. After the divorce was final, ex-Wife filed suit against ex-Husband for wiretap violations. At trial ex-Wife introduced 12 tapes containing her intercepted phone conversations, with an average of 2.5 conversations each, and representing one day of interception per tape. Ex-Wife further introduced transcripts from the divorce trial in which ex-Husband used information derived from the intercepted conversations. The trial judge granted the Wiretap claim, found 12 days of interception, and awarded statutory damages of $1,200 ($100 for each day of violation) plus attorney’s fees. The appellate court added one additional day of violation for the use and disclosure at the divorce trial.
Federal Example – Leach v. Byram
Leach v. Byram, 68 F.Supp.2d 1072, 1075 (D.Minn. 1999). There was a civil case between family members regarding the dissolution of a business partnership. The father had recorded the son’s phone calls by using a police scanner tuned to the frequency of his portable phone. The father’s attorney sent a letter to the son’s attorney stating that he had reviewed the tapes, would provide copies, and that the tapes contained significant admissions and impeachment material regarding misuse of partnership funds, insurance fraud, and other illegal activity. The attorney stated “it will be interesting to see how your client’s and witness’ credibility stand up after discussing some of these past statements.” The letter then went on to discuss settlement options. The parties settled the case, and the son and his wife agreed not to pursue interception claims against the father. The son and his wife then sued the father’s attorney for a Wiretap Act violation. The court held that the attorney intentionally used the contents of an intercepted communication provided to him by his client, in violation of the Wiretap Act. The court found that the letter from the father’s attorney to the son’s attorney contained a veiled threat to use the information for impeachment at trial and that sufficed as a “use” under the statute. The attorney argued that the use was not intentional and that he did not know that the information came from a prohibited interception. The court found that the evidence showed that the attorney knew of the interceptions before sending the letter, and that he deliberately used that knowledge to procure a settlement. The court found that it had discretion in the amount of statutory damages and that it would be unjust to require the attorney to pay damages. However, the attorney was ordered to pay attorney’s fees.
Wiretap Act claims are subject to a two-year statute of limitations. The statute of limitations begins to run when the claimant first has a reasonable opportunity to discover the violation. It does not require the claimant to have actual knowledge of the violation; only that the claimant have had a reasonable opportunity to discover it. However, even if the statute of limitations has run for the original interception, each “use” or “disclosure” is a separate offense and is subject to a separate two-year limitations period.
The Wiretap Act contains a strict exclusionary rule, prohibiting intercepted communications from being used in any proceeding:
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.
Criminal lawyers are familiar with exclusionary rules. However, Texas law only prohibits the introduction of illegally-obtained evidence in criminal trials. Generally, illegally-obtained evidence is admissible in civil trials. The Wiretap Act overrides this practice and specifically provides that evidence obtained in violation of the Act may not be used in any proceeding—civil, criminal, administrative, or otherwise. By excluding “evidence derived therefrom,” the Wiretap Act also excludes “fruits of the poisonous tree”—any evidence obtained as a result of the intercepted communication. Unlike the Fourth Amendment, the Wiretap Act applies to private conduct as well as to governmental agents.
Note: the exclusionary rule applies to “wire” or “oral” communications—not “electronic” communications. For example, this means that intercepted text messages would not be covered by the exclusionary rule. This example underscores the importance of a close reading of the statute and all defined terms.
Currently, as long as the communication is a voice communication, it will be subject to the stronger protections accorded to “wire” communications. That means that the exclusionary rule would apply to landline calls, cellular calls, and VoIP or internet calls (Skype, etc.).
The Wiretap Act contains an explicit exception for communications “intercepted” by one of the parties to the communication. The Act provides:
(d) It shall not be unlawful under this chapter 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….
In other words, any person may record any conversation to which he or she is a party. This is known as “one-party consent.” Federal law and the laws of 38 states (including Texas) provide that only one person’s consent to a recording is needed. Additionally, any further use or disclosure of such a recording is permissible and is not a violation of the Wiretap Act.
Twelve states, however, require that all parties must consent to a recording. Those states include California, Connecticut, Florida, Hawaii (under some circumstances), Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. In an all-party consent state, there may be criminal and civil penalties for recording or intercepting a communication without the consent of every party. Further, any subsequent use or disclosure of communications recorded without the consent of all parties may be additional violations under the law of those states (but not under federal law). If a call is conducted across state lines, the law of the stricter state applies. Therefore, it is best to advise clients not to record conversations if any party is outside Texas.
Early in the history of the Wiretap Act, some courts held that there was an implied exception for spouses, meaning there was no violation for one spouse intercepting communications of the other spouse. Those opinions were widely criticized. A Texas case explicitly held that there is no exemption for spouses under the Wiretap Act, and that a spouse can be in violation for intercepting the other spouse’s communications.
Texas Example – Collins v. Collins
Collins v. Collins, 904 S.W.2d 792 (Tex.App.-Houston [1st Dist.] 1995, writ denied). The following is from the holding of the Collins court. Two Texas courts of appeals have held that the interception of a telephone conversation by a spouse is illegal. Neither the state nor the federal wiretap statutes contain any exception for wiretaps between spouses. Texas courts have long recognized both a common law and a constitutional right of privacy. Nothing in the Texas Constitution or our common law suggests that the right of privacy is limited to unmarried individuals. Further, the legislative history of the federal wiretap statute indicates that Congress anticipated it would restrict the use of wiretap evidence in divorce cases. Two senators specifically stated that the “three major areas in which private electronic surveillance was widespread were (1) industrial, (2) divorce cases, and (3) politics;” and “[a] broad prohibition is imposed on private use of electronic surveillance, particularly in domestic relations and industrial espionage situations.”
A common fact pattern involves one parent who intercepts communications between the child and the other parent. Because parents generally have the ability to provide legal consent on behalf of minor children, there is lots of case law interpreting the circumstances under which one parent can consent to recording communications between the child and others.
Some federal courts have found that where the parent has a good faith, objectively reasonable belief that the recording is necessary for the welfare of the child, a vicarious consent exception to the Wiretap Act will make such recordings permissible. Texas state courts have followed this interpretation.
Texas Example – Alameda v. State
Alameda v. State, 235 S.W.3d 218, 223 (Tex.Crim.App.2007). While the defendant was going through a divorce, he moved in with a woman and her 12-year-old daughter. After he moved out, the mother became suspicious that he and her daughter were communicating. She installed a recording device on the home phone. Over a two-week period, she recorded almost 20 hours of calls between the then 13-year-old daughter and the defendant, showing that they were having a sexual relationship. The mother took the tapes to the police, and the defendant was charged. The defendant moved to suppress the tapes, claiming they were recorded in violation of Tex. Penal Code § 16.02 [Texas wiretap law] and were therefore inadmissible under Code Crim. Proc. art. 38.23 [Texas exclusionary rule]. The trial judge held that the mother could vicariously consent to recordings of her daughter’s conversations. The Texas Court of Criminal Appeals held that it was not error for the trial court to admit the tapes and that vicarious-consent is acceptable if a parent has an objectively reasonable, good-faith belief that consenting for the child was in the child’s best interest. The court stated that this did not amount to adding a new exception to the wiretap statute. The court held that vicarious-consent, which is a type of consent recognized in many contexts in the law regarding the parent-child relationship, also applies to the existing consent exception to the wiretap statute.
Texas Example – Allen v. Mancini
Allen v. Mancini, 170 S.W.3d 167 (Tex.App.-Eastland 2005, pet. denied). In a custody modification case, a father recorded conversations between his child and the mother. The mother appealed the admission of the recordings at trial under the Wiretap Act. The appellate court held that since the father was a managing conservator with authority to consent to various decisions regarding the child, he had the authority to consent on behalf of child to the tape recording of conversations between the child and the mother. The appellate court stated that a parent may vicariously consent to the tape-recording of a minor child as long as the parent has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the tape recording.
Texas has its own state wiretapping law, contained in the Penal Code. The Texas law is designed to closely parallel the federal law, although it differs in some respects.
Under the Texas wiretapping law, it is an offense if a person:
(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;
(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person 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 the person 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….
The offenses and definitions generally parallel the federal Act, although Texas added an offense for effecting a covert entry for the purpose of intercepting communications. The defined terms, including “wire,” “oral,” and “electronic” communications, also parallel the federal Act. The Texas law also specifically enumerates a variety of affirmative defenses, including the one-party consent requirement.
One key difference is the knowledge requirement for a “use” offense. Under the federal Wiretap Act, a person commits an offense if the person uses the contents of an intercepted communication “knowing or having reason to know” that the information was obtained through interception. Under the Texas law, a person commits an offense if the person uses the contents of an intercepted communication if the person “knows or is reckless about” whether the information was obtained through interception. This is a broader definition and includes more conduct than the federal Act.
A violation of the Texas wiretap law is a 2nd degree felony.
The Texas Civil Practice and Remedies Code contains a civil cause of action for interception of communication:
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….
For the purpose of the civil claim, a 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.” This definition likely parallels “oral” communications and “wire” communications under the state and federal wiretap laws, so case law interpreting those terms would provide some guidance. Like the federal Wiretap Act, a person must be a party to the communication to have standing to sue under this law.
Under the federal Wiretap Act, most courts have interpreted the statutory damages provision to be discretionary, because the statute uses the term “may.” The Texas cause of action differs, and provides that a person 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 $10,000 for each occurrence;
(3) all actual damages in excess of $10,000;
(4) punitive damages in an amount determined by the court or jury; and
(5) reasonable attorney’s fees and costs.
While courts have held that the federal Wiretap Act provides total statutory damages of $10,000, the Texas civil claim allows statutory damages for “each occurrence.” It is yet to be determined whether Texas courts will define “occurrence” to mean each interception or follow the federal meaning of a “closely-related course of conduct over a relatively short period of time.” Additionally, one court has held that the punitive damages are not subject to any statutory cap. However, the relevant statute has been amended since that decision.
The Stored Communications Act is discussed below, but the two laws overlap in confusing ways. Although the Wiretap Act is generally thought to apply to voice communications, it can also apply to interception of data. However, the Wiretap Act applies only to data intercepted contemporaneously with transmission. Stored e-mail cannot be intercepted under the Wiretap Act. Very few seizures of electronic communications from computers will constitute interceptions under the Wiretap Act:
[T]here is only a narrow window during which an E-mail interception may occur — the seconds or mili-seconds before which a newly composed message is saved to any temporary location following a send command. Therefore, unless some type of automatic routing software is used (for example, a duplicate of all of an employee’s messages are automatically sent to the employee’s boss), interception of E-mail within the prohibition of [the Wiretap Act] is virtually impossible.
However, there are spyware programs that automatically forward electronic communications contemporaneous with transmission, and the use of such programs may constitute a violation of the Wiretap Act
The Stored Communications Act applies to data in electronic storage and thus provides broader protection against data interception. However, the Stored Communications Act does not contain an exclusionary rule or create a suppression remedy. It may benefit a client to argue that a particular interception is a breach of the Wiretap Act:
[t]he level of protection provided stored communications under the SCA is considerably less than that provided by communications covered by the Wiretap Act…. [If] acquisition of a stored communication were an interception under the Wiretap Act, the government would have to comply with the more burdensome, more restrictive procedures of the Wiretap Act to do exactly what Congress apparently authorized it to do under the less burdensome procedures of the SCA. Congress could not have intended this result.
The Stored Communications Act has been amended several times, with the last substantive changes occurring in 2002. While it overlaps the Wiretap Act, it differs from it in key respects.
The Stored Communications Act makes it an offense to:
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system….
While the Wiretap Act focuses on interceptions that happen contemporaneously with transmission, the Stored Communications Act focuses on accessing communications in electronic storage, as that term is statutorily defined.
The Stored Communications Act adopts by reference the statutory definitions of the Wiretap Act. The Stored Communications Act refers solely to “wire” and “electronic” communications, omitting the “oral” communication coverage of the Wiretap Act.
A threshold issue for the Stored Communications Act is whether a communication is in “electronic storage.” The term is statutorily defined to mean:
(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and
(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;
Courts have struggled to define “temporary, intermediate storage” in the context of how data is stored and transmitted over the internet. For example, it is not a violation to obtain answering machine messages located on a physical recorder, but it is a violation to access voicemail messages stored on a telecommunications system. Similarly, the Stored Communications Act is not violated when someone access emails that are stored locally on a computer, but it can be a violation to access webmail that is stored on the internet. There is some disagreement about whether e-mail that is intercepted after it has been received and read is in “temporary, intermediate storage,” “backup storage,” or “post-transmission storage.” The first two categories would be protected under the Stored Communications Act, while the third would not.
Federal Example – Fraser v. Nationwide
Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 114 (3d Cir.2003). Nationwide, Fraser’s employer, thought he was communicating with competitors, so the company searched his e-mail that was stored on its main file server. Fraser alleged violations of the Wiretap Act, the Stored Communications Act, and state law. The District Court granted summary judgment in favor of Nationwide on the Stored Communications Act claim, holding that the law did not apply to the e-mails at issue because the transmissions were neither in “temporary, intermediate storage” nor in “backup” storage. Rather, according to the District Court, the e-mail was in a state it described as “post-transmission storage.” The appellate court agreed that Fraser’s e-mail was not in temporary, intermediate storage. But the court stated that it seems questionable that the transmissions were not in backup storage — a term that neither the statute nor the legislative history defines. The appellate court affirmed through a different analytical path, assuming without deciding that the e-mails were in backup storage. The court applied an exception in the law for communications service providers, and held that since the e-mail was stored on Nationwide’s system, which Nationwide administered, that the e-mails were not protected.
Federal Example – U.S. v. Steiger
An anonymous source installed a Trojan horse virus on Steiger’s computer, accessed his files, and found child pornography, which the hacker reported by e-mail to the police in Montgomery, Alabama. The hacker was a self-appointed vigilante in Turkey whose hobby was to post the disguised virus on child pornography news groups, access the computers of users who downloaded it, and then report them. On appeal, the court held that the Wiretap Act did not exclude the evidence because it was not intercepted contemporaneously with transmission. The court also held that the Stored Communications Act did not apply because the hacker accessed Steiger’s computer directly, and did not access the files while they were in storage with an electronic communication service. The court held that the Stored Communications Act does not apply to hacking into personal computers to retrieve information stored therein.
Criminal penalties vary with the purpose of the offense and whether or not it is a first offense:
|Purpose||First Offense||Subsequent Offense|
|commercial advan-tage, malicious des-truction or damage, or private commercial gain, or in furtherance of any criminal or tortious act||Fine or imprison-ment for not more than 5 years, or both||fine or imprison-ment for not more than 10 years, or both|
|Any other purpose||fine or imprison-ment for not more than 1 year or both||fine or imprison-ment for not more than 5 years, or both|
The Stored Communications Act permits a broader group of people to bring civil claims, compared to the Wiretap Act. While the Wiretap Act only permits a person whose communication was intercepted to sue, the Stored Communications Act permits:
…[any] person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.
Relief available in a civil claim under the Stored Communications Act includes:
· preliminary, equitable, or declaratory relief, including injunctions;
· actual damages including any profits made by the violator as a result of the violation;
· minimum statutory damages of $1,000;
· punitive damages if the violation is willful or intentional; and
· reasonable attorney’s fees and litigation costs.
Like the Wiretap Act, the Stored Communications Act is subject to a two-year statute of limitations. The statute of limitations begins to run when a claimant has “inquiry notice” that her rights might have been invaded.
Texas has its own law regarding unlawful access to stored communications. Under the Texas law, it is an offense if a person:
…obtains, alters, or prevents authorized access to a wire or electronic communication while the communication is in electronic storage by:
(1) intentionally obtaining access without authorization to a facility through which a wire or electronic communications service is provided; or
(2) intentionally exceeding an authorization for access to a facility through which a wire or electronic communications service is provided.
The Texas law is virtually identical to the federal law. If the offense is committed to obtain a benefit or to harm another, it is a state jail felony; otherwise, it is a class A misdemeanor.
Texas Example – State v. Harrison
State v. Harrison, No. 02-13-00255-CR (Tex.App.—Fort Worth May 30, 2014) (memo. op.). The recent Harrison case discusses when cell phone providers may provide information to law enforcement under the Stored Communications Act. In investigating a murder, a police detective and Texas Ranger obtained a suspect’s cell phone records without a warrant or court order. The appellate court upheld the trial court’s suppression of post-arrest verbal statements because police used cell phone location information obtained in violation of the SCA to locate and arrest appellee, and because the detective further used cell phone records obtained by the Texas Ranger in violation of the SCA to question appellee. The court’s decision contained the following analysis:
The Stored Communications Act provides limited circumstances under which law enforcement entities can compel providers to give them information regarding customer cell phone records: (1) by obtaining a valid warrant under federal or state law, (2) by obtaining a court order upon a showing of “specific and articulable facts showing that there are reasonable grounds to believe that . . . the records . . . are relevant and material to an ongoing criminal investigation,” (3) by obtaining the consent of the subscriber or customer, or (4) by obtaining an administrative subpoena. There is also an exception for when “the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” This exception, however, does not authorize law enforcement to access such data without a warrant in the course of routine criminal investigations. Although the SCA itself does not require exclusion of evidence as a remedy for its violation, article 38.23 of the code of criminal procedure provides that no evidence obtained by an officer in violation of the constitution or laws of the State of Texas, or the Constitution or laws of the United States, may be admitted in evidence against the accused in a criminal case.
Police have relied on wiretapping statutes to arrest citizens who film police in public. Courts have recently made it clear that there is a First Amendment exception to the Wiretap Act for recording police. See Appendix A for a summary of the caselaw regarding the First Amendment, the right to film police, and wiretap laws.
Federal Example – Gericke v. Begin
Gericke v. Begin, No. 12-2326, ___ F.3d ___ (1st Cir. 2014). Gericke was arrested and charged for a wiretap violation for attempting to film a traffic stop. The charges were dropped. She sued, claiming the officers violated her First Amendment right by filing the wiretapping charge without probable cause in retaliation for her attempted filming. The court held that First Amendment principles apply to the filming of a traffic stop –the subject of filming is “police carrying out their duties in public.” A traffic stop, no matter the additional circumstances, is inescapably a police duty carried out in public. Hence, a traffic stop does not extinguish an individual’s right to film. This is not to say, however, that an individual’s exercise of the right to film a traffic stop cannot be limited. Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them. The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure — for example, a command that bystanders disperse — that would incidentally impact an individual’s exercise of the First Amendment right to film. Such an order, even when directed at a person who is filming, may be appropriate for legitimate safety reasons. However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties. Importantly, an individual’s exercise of her First Amendment right to film police activity carried out in public, including a traffic stop, necessarily remains unfettered unless and until a reasonable restriction is imposed or in place.
In the Bartnicki case, the United States Supreme Court found a First Amendment exception to the wiretap laws where a person publishes communications relevant to matter of public concern that were illegally intercepted by a third party. During collective bargaining negotiations between a teachers’ union and a school board, the union’s chief negotiator held a cell phone call with the union president to discuss details of the negotiations. An unidentified person intercepted and recorded the call and sent the recording to the head of a local taxpayers’ organization. That person distributed the tape to radio, television, and newsprint media, who broadcast the contents. The two persons involved in the original call sued everyone for using and disclosing wiretapped communications. The defendants claimed their publication of truthful information of public importance was protected by the First Amendment. The Supreme Court refused to address the broader questions of whether truthful publication may ever be punished consistent with the First Amendment, or whether the government may punish the publication of information that was acquired unlawfully by media. Limiting the question to the case, where the media lawfully acquired an intercepted conversation, the Court permitted a First Amendment exception. The Court held that the underlying interest of the wiretap law was to protect privacy and deter invasions of privacy. However, punishing people for publishing the information would not effectively deter an anonymous wiretapper. The Court held that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”
The United States Supreme Court has just agreed to hear an appeal of a man sentenced to four years in federal prison for posting violent online rants against his estranged wife, law enforcement officials, and former co-workers. The man claimed that he was writing rap lyrics as a way of venting his emotions, and that his statements were protected by the First Amendment. The issue is which standard should apply: (1) an objective standard of whether a reasonable person would consider the statements threatening or (2) a subjective standard of whether the person making the statements intended them to be understood as threats. The side arguing for a subjective intent standard points out that a person cannot control how his content is reposted and distributed over the internet or what the audience for the statements will end up being. However, the other side focuses on the extreme and shocking content and the real effects on the target of the communications. The Supreme Court granted the petition for review on June 16, 2014, and requested briefing, so the outcome will not be known for several months.
Texas was one of the first states to implement a law prohibiting online impersonation when it passed Tex. Penal Code § 33.07 in 2009. The law creates two offenses:
(a) A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:
(1) create a web page on a commercial social networking site or other Internet website; or
(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.
(b) A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:
(1) without obtaining the other person’s consent;
(2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and
(3) with the intent to harm or defraud any person.
An offense under subsection (a) is a third-degree felony. An offense under subsection (b) is a Class A misdemeanor, unless the actor commits the offense with the intent to solicit a response by emergency personnel, in which case it is a third-degree felony. If the same conduct constitutes a violation of multiple sections of the Penal Code, the person may be prosecuted under any or all of the laws. The law carves out a defense for employees of social networking sites, internet service providers, etc.
Under this law, the defendant must have the intent to harm the victim. The penal code defines “harm” as “anything reasonably regarded as loss, disadvantage, or injury.” There is no requirement the harm be physical harm. Emotional distress can be sufficient to qualify as harm under the Penal Code.
Another crucial element of this offense is the impersonation. If a person merely uses the internet to harm someone, without impersonating, the conduct would not be covered by this section. Rather, it would likely be considered harassment under Tex. Penal Code § 42.07. It is interesting to note that harassment is a misdemeanor, while impersonation is a felony.
Texas Example – Taylor v. State
Taylor v. State, No. 02-11-00092-CR (Tex.App.—Fort Worth Mar. 22, 2012) (memo. op.). A woman provided psychic services through her website. She began to receive rude and obscene online chat messages from someone. She received a package in the mail containing what appeared to be a used condom (later found to contain soy milk). She then began to receive messages purportedly from her hairdresser. The “hairdresser” set up a meeting, and when no one showed up, the psychic contacted the hairdresser and found out the communications were not from her. The imposter hairdresser continued to send her messages. The psychic then received a second package containing what appeared to be soiled panties. The police tracked down the man responsible, and he admitted to everything. He was charged with online harassment under Tex. Penal Code § 33.07. That law requires, however, that a person have the intent to harm. The defendant claimed that his intent was not to harm, but rather to test the victim’s psychic abilities. The court upheld the conviction, finding that that the evidence could have shown an intent to harm.
The Penal Code contains a criminal offense for breach of computer security. The first level of offense does not require that the defendant have any intent to harm:
(a) A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.
The knowledge requirement applies to both the access and consent elements of the offense. An offense under subsection (a) is a Class B misdemeanor, except that the offense is a state jail felony if the defendant has been previously convicted two or more times or if the system is owned by the government or a critical infrastructure facility.
The second level of offense has more severe penalties, but requires that the defendant have intent to harm:
(b-1) A person commits an offense if with the intent to defraud or harm another or alter, damage, or delete property, the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.
The penalty for an offense under this subsection varies with the “amount involved:”
|Penalty||Aggregate Amount Involved|
|State jail felony||< $20,000|
|3rd degree felony||≥ $20,000< $100,000|
|2nd degree felony||≥ $100,000< $200,000|
|1st degree felony||> $200,000|
It is a second degree felony to obtain the identifying information of another by accessing only one computer, computer network, or computer system; or a third degree felony if more than one.
A person acts without effective consent if the consent was “used for a purpose other than that for which the consent was given.” Under the statute, “access” means “to approach, instruct, communicate with, store data in, retrieve or intercept data from, alter data or computer software in, or otherwise make use of any resource of a computer, computer network, computer program, or computer system.” A jury may infer knowledge or intent from the acts, conduct, and remarks of the accused, and from the surrounding circumstances. Direct evidence of the elements of the offense is not required. Proof of a culpable mental state almost invariably depends upon circumstantial evidence. Juries are permitted to make multiple reasonable inferences from the evidence presented at trial, and circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Circumstantial evidence alone can be sufficient to establish guilt.
Federal Example – U.S. v. Stanley
United States v. Stanley, No. 13-1910 (3d Cir. 2014), released June 11, 2014, involved whether a person has a reasonable expectation of privacy when he connects to another person’s unsecured wi-fi internet connection (he doesn’t). Importantly, the opinion contains dicta implying that accessing an unsecured, open wi-fi network may be a violation of state law:
A large number of states, including Pennsylvania, have criminalized unauthorized access to a computer network. A number of states have also passed statutes penalizing theft of services, which often explicitly include telephone, cable, or computer services. We need not decide here whether these statutes apply to wireless mooching….
Texas Example – Muhammed v. State
Muhammed v. State, 331 S.W.3d 187 (Tex.App.-Houston [14th Dist.] 2011, pet. ref’d). The victim and the defendant both attended the University of Houston. The victim began receiving emails to one of his UH accounts from an unknown Yahoo account, including one which contained his social security number and others about his personal life. His UH account was hacked, his password changed, and his schoolwork deleted. He received notice from the college that there had been a request to change his major. He began to notice a woman waiting for him outside his classrooms, observing him at the Metro bus stop, and following him around the UH campus. She sent him a “friend request” on Facebook. When other UH students reported similar problems, the police investigated. The police got information from UH’s information technology department which led them to the defendant. An officer observed her in the computer lab, walked behind her, and observed her accessing others’ information on the UH website. The defendant denied everything but was found guilty, sentenced to 180 days confinement, and placed on community supervision for two years.
Texas Example – Brackens v. State
Brackens v. State, 312 S.W.3d 831 (Tex.App.-Houston [1st Dist.] 2009, pet. ref’d). The defendant took his laptop to Circuit City to have his data backed up to an external hard drive. In the course of doing the work, the computer technician found child pornography and notified police. On appeal, the defendant argued that the trial court erred in denying his motion to suppress evidence because, among other things, the technician, by opening his computer file, committed the offense of breach of computer security under § 33.02 and therefore all of the files should be excluded from evidence. However, the defendant did not place any limitations on his request to back up his computer files. In order to fulfill the defendant’s request, the technician had to copy the defendant’s files onto a DVD to ultimately load the files into the store computer which had the external hard drive connected to it. Once he saw the suspect “Pedo” file, the technician had to open it to confirm that it was not illegal. The testimony supports an implied finding that the defendant’s computer files were accessed in the course of carrying out his work order. Therefore, the technician did not violate section 33.02.
Chapter 143 of the Civil Practice and Remedies Code creates a cause of action for a person who is injured or whose property is injured by an intentional or knowing violation of Chapter 33 of the Penal Code. This includes both the online impersonation and breach of computer security offenses described above. The civil cause of action permits a person to recover actual damages and reasonable attorney’s fees and costs.
These statutes form a technical and complex web of laws that affect criminal practices in potentially far-reaching ways. This paper is an overview of a field with significant depth, and interested practitioners should devote time to reading the statutes and the cases interpreting and applying them.
 Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507 (1962).
 Tafflin v. Levitt, 493 U.S. 455, 458 (1990).
 Id. at 459.
 Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 823 (1990).
 Williams v. Horvath (1976) 16 Cal.3d 834, 837, 129 Cal.Rptr. 453, 548 P.2d 1125.
 Bunnell v. Department of Corrections, (1998) 64 Cal.App.4th 1360, 1367, 76 Cal.Rptr.2d 58.
 Id.; see also Young v. Young (1995) 211 Mich.App. 446, 448, fn. 1, 536 N.W.2d 254, 255.
 See, e.g., Boehringer v. Konkel, No. 01-11-00702-CV (Tex.App.—Houston [1st Dist.] Apr. 4, 2013).
 United States v. Steiger, 318 F.3d 1039, 1047 (11th Cir.2003); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir.2002).
 18 U.S.C. § 2511(1)(a).
 See e.g., Tyler v. Berodt, 877 F.2d 705 (8th Cir.1989); Askin v. McNulty, 47 F.3d 100 (4th Cir.1995); United States v. Smith, 978 F.2d 171 (5th Cir.1992).
 See Communications Assistance for Law Enforcement Act, Pub. L. No. 103-414, 108 Stat. 4279 (1994). Available at: http://www.gpo.gov/fdsys/pkg/STATUTE-108/pdf/ STATUTE-108-Pg4279.pdf
 Bartnicki v. Vopper, 532 U.S. 514, 524 (2001).
 18 U.S.C. § 2511(1)(c), (d).
 18 U.S.C. § 2510(8).
 Goodspeed v. Harman, 39 F.Supp.2d 787, 790 (N.D. Tex. 1999).
 U.S. v. Wuliger, 981 F.2d 1497, 1501 (6th Cir. 1992).
 See, e.g., Nix v. O’Malley, 160 F.3d 343 (6th Cir.1998).
 18 U.S.C. § 2510 (1).
 18 U.S.C. § 2510(18).
 Briggs v. American Air Filter Co., Inc., 630 F.2d 414, 417 (5th Cir.1980).
 18 U.S.C. § 2510(2).
 Walker v. Darby, 911 F.2d 1573, 1578 (11th Cir.1990).
 18 U.S.C. § 2511(4)(a).
 18 U.S.C. § 2520(a).
 18 U.S.C. § 2520(b).
 18 U.S.C. § 2520(c).
 Dorris v. Absher, 179 F.3d 420, 428 (6th Cir.1999).
 See, e.g., Bess v. Bess, 929 F.2d 1332, 1335 (8th Cir. 1991).
 18 U.S.C. § 2520(e).
 Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir.1998).
 See, e.g., Fultz v. Gilliam, 942 F.2d 396, 404 (6th Cir.1991).
 18 U.S.C. § 2515.
 Code Crim. Proc. art. 38.23.
 See, e.g., Baxter v. Tex. Dept. of Human Resources, 678 S.W.2d 265, 267 (Tex.App.—Austin 1984, no writ).
 United States v. Smith, 155 F.3d 1051, 1059 (9th Cir.1998).
 United States v. Steiger, 318 F.3d 1039, 1046 (11th Cir. 2003).
 See, e.g., “What About Phone Calls Using the Internet?” Surveillance Self-Defense Project, Electronic Freedom Foundation, available at: https://ssd.eff.org/wire/protect/voip
 18 U.S.C. § 2511(2)(d).
 Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir. 1977); Simpson v. Simpson, 490 F.2d 803, 809 (5th Cir.1974).
 See, e.g., Platt v. Platt, 951 F.2d 159, 160 (8th Cir.1989); Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir. 1991); Kempf, 868 F.2d at 972-73; Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984); United States v. Jones, 542 F.2d 661, 667 (6th Cir.1976); Walker v. Carter, 820 F.Supp. 1095, 1097 (C.D.Ill.1993); Nations v. Nations, 670 F.Supp. 1432, 1434-35 (W.D.Ark.1987); Flynn v. Flynn, 560 F.Supp. 922, 924-25 (N.D.Ohio 1983); Heyman v. Heyman, 548 F.Supp. 1041, 1045-47 (N.D.Ill.1982); Gill v. Willer, 482 F.Supp. 776, 778 (W.D.N.Y.1980); Kratz v. Kratz, 477 F.Supp. 463, 467-72 (E.D.Pa.1979)
 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).
 See, e.g., Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir.1998).
 Alameda v. State, 235 S.W.3d 218 (Tex. Crim. App. 2007).
 Tex. Penal Code § 16.02.
 Tex. Penal Code § 16.02(b) (emph. added).
 Tex. Penal Code § 16.02(c).
 Tex. Penal Code § 16.02(f).
 Tex. Civ. Prac. & Rem. Code § 123.002(a).
 Tex. Civ. Prac. & Rem. Code § 123.004.
 Dorris v. Absher, 179 F.3d 420, 428 (6th Cir.1999).
 Parker v. Parker, 897 S.W.2d 918, 930 (Tex. App.—Fort Worth 1995, writ denied).
 United States v. Smith, 155 F.3d 1051, 1055 (9th Cir.1998) (the intersection of these two statutes “is a complex, often convoluted, area of the law”).
 Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir.2003); United States v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir.2003); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir.2002); Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457 (5th Cir.1994).
 Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir.2003).
 United States v. Steiger, 318 F.3d 1039, 1050 (11th Cir.2003).
 United States v. Steiger, 318 F.3d 1039, 1051 (11th Cir.2003).
 Konop, 302 F.3d at 879; see also Steve Jackson Games, 36 F.3d at 463.
 18 U.S.C. § 2701(a).
 See, e.g., U.S. v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998).
 See, e.g., Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874-880 (9th Cir. 2002).
 18 U.S.C. § 2701(b).
 18 U.S.C. § 2707(a).
 18 U.S.C. 2710(b), (c).
 18 U.S.C. § 2707(f).
 Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir.1998).
 Tex. Penal Code § 16.04(b).
 Tex. Penal Code § 16.04(c), (d).
 Bartnicki v. Vopper, 532 U.S. 514 (2001).
 Elonis v. United States, available at: http://www.scotusblog.com/case-files/cases/elonis-v-united-states/
 Tex. Penal Code § 33.07(c).
 Tex. Penal Code § 33.07(d).
 Tex. Penal Code § 33.07(e).
 Tex. Penal Code § 1.07(a)(25).
 Hudspeth v. State, 31 S.W.3d 409, 411 (Tex. App.-Amarillo 2000, pet. ref’d); see also Halay v. State, No. 03-07-00327-CR, 2008 WL 5424095, at *7 (Tex. App.-Austin Dec. 31, 2008, no pet.) (mem. op., not designated for publication) (“[E]ven emotional harm and aggravation . . . can reasonably be considered loss, disadvantage, or injury.”).
 White v. State, No. 14-05-00454-CR, 2006 WL 2771855, at *2 (Tex. App.-Houston [14th Dist.] Sept. 28, 2006, pet. ref’d) (mem. op.).
 Tex. Penal Code § 33.02(a).
 Muhammed v. State, 331 S.W.3d 187, 194 (Tex.App.-Houston [14th Dist.] 2011, pet. ref’d).
 Tex. Penal Code § 33.02(b).
 Tex. Penal Code § 33.02(b-2).
 Tex. Penal Code § 33.01(12)(E).
 Tex. Penal Code § 33.01(1).
 Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App.1991) overruled on other grounds by Fuller v. State, 829 S.W.2d 191 (Tex.Crim.App.1992).
 Hooper v. State, 214 S.W.3d 9, 14 (Tex.Crim.App.2007).
 Martin v. State, 246 S.W.3d 246, 263 (Tex.App.-Houston [14th Dist.] 2007, no pet.).
 Hooper, 214 S.W.3d at 14-16.
 Id. at 15.
 Tex. Civ. Prac. & Rem. Code § 143.001; see also Institutional Securities Corp. v. Hood, 390 S.W.3d 680, 684 (Tex.App.—Dallas 2012).
 Tex. Civ. Prac. & Rem. Code § 143.002.