Claire E. James was invited to write an article for the Family Law spotlight in the September 2026 edition of the Dallas Bar Association’s Headnotes publication. We are sharing the article here, with permission from the DBA.
Divorce and custody cases are ground zero for the collision between modern technology and personal privacy. Surveillance no longer requires a private investigator because it is built into devices and apps families use daily. Smartphones track location, cloud accounts sync automatically, and cameras record everything. These tools raise questions about privacy, admissibility, and the line between evidence-gathering and intrusion that are not confined to family law cases.
Privacy-Sensitive Data
Location monitoring through smartphones or AirTags is an issue raised in many family law disputes. Password misuse — when one party uses the other’s credentials to access data after the relationship dissolves — is not uncommon in divorce. Digital snooping also occurs when spouses share a cloud storage account and one spouse continues to access the other’s data and communications post-breakup.
Audio and video recordings are another form of privacy-sensitive data common in family litigation. Smart home devices can add a layer of complexity, particularly when parties have remote access to the same home systems post-separation. A spouse who moved out but still has access to a video doorbell or indoor camera, for instance, can continue monitoring activity in the home long after separation.
When Intrusion Becomes Criminal
Location surveillance can cross the line into criminal territory. Under Texas Penal Code § 16.06, installing an electronic tracking device on a vehicle owned or leased by another person without consent is a crime. Similarly, Texas Penal Code § 42.07 characterizes certain digital monitoring as harassment.
Obtaining access to a spouse or coparent’s electronic data without consent can also give rise to criminal liability. The federal Stored Communications Act and its Texas analog prohibit unauthorized access to, or exceeding authorized access to, stored electronic communications. Similarly, both federal and Texas statutes criminalize the interception of wire, oral, or electronic communications, though each contains a one-party consent exception.
In family cases, parties may not realize their conduct could constitute illegal wiretapping. For example, suppose a child uses Parent A’s Apple ID to login to an iPad and brings the iPad to Parent B’s home. Parent B notices Parent A’s iMessages coming through the iPad, reads them, and sends screenshots to his attorney. Not only could Parent B’s conduct violate the wiretap acts, but under Taylor v. Tolbert, 644 S.W.3d 637 (Tex. 2022), if his attorney uses or discloses the messages, attorney immunity may not protect him or her from civil liability.
Admissibility Issues
Texas has no general rule excluding illegally obtained evidence in civil cases. However, both the federal and Texas Wiretap Acts contain exclusionary rules, and courts have applied them in civil cases. By contrast, the Stored Communications Act creates criminal penalties and a civil cause of action for damages, but a violation does not automatically bar the evidence at trial.
Even when the method of obtaining surveillance data does not result in automatic exclusion, it often gives rise to valid evidentiary objections. A recording of an illegally intercepted call may be excluded automatically, while a screenshot of a conversation obtained by logging into an old shared account may be difficult to authenticate or subject to exclusion based on hearsay, relevance, or Rule 403.
Blurred Lines and Best Practices
The law provides some bright-line rules around electronic surveillance, but the issues aren’t always black and white. For example, can a parent hide an AirTag in the child’s backpack to track their coparent’s whereabouts with the child? Can a party continue watching the nanny cam after moving out of the marital residence? Is it illegal for a client to login to their spouse’s email account if they know the password?
In some cases, these gray areas are addressed by standing orders. For example, Dallas County, Collin County, and Denton County prohibit parties in a divorce from using any password to gain access to the other party’s accounts. When there is no clear rule, temporary orders limiting electronic surveillance are often worth requesting.
While electronic surveillance issues arise frequently in family law, similar issues can arise in any civil case. Litigators should consider a three-pronged approach: first, identify potential surveillance issues early on by asking targeted questions about shared accounts, recording devices, cloud access, and spyware. Second, advise clients to preserve relevant evidence without engaging in self-help monitoring. Finally, before using electronic evidence in litigation, determine exactly how it was obtained. Careful attention to privacy expectations is increasingly important, not just in family law, but across civil litigation.
