Texas CoA Addresses Electronic Community Property and Invasion of Privacy

Reference:

Miller v. Talley Dunn Gallery LLC, 2016 Tex. App. LEXIS 2280

(Tex. App. – Dallas March 3, 2016) (mem. opinion)

(Cause No. 05-15-00444-CV)

Relevant Documents:

Memorandum Opinion:  March 3, 2016, Cause No. 05-15-00444-CV

Texas Penal Code 33

In this case, part of the original trial court’s decision determined that Talley Dunn and the Tally Dunn Gallery LLC had “established a probable right to recover on their claims under the HACA. [Harmful Access to Computers Act]”  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 19]

In his appeal, Bradley B. Miller argues that, while he admits that he took screenshots of information contained on the phone, the screenshots do not qualify as “access” and that he had effective consent to do so because the cell phone was community property.  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 21-22]

Texas Penal Code § 33.01(1) defines access as:

“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.”

Neither party disputes that a cell phone is a computer, and the appellate court found that in order to take the screen shots Miller necessarily HAD to access the the computing device, within the definition of the penal code.  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 22]

Regarding his argument that he had effective consent to access the cell phone because it was community property, the CoA relied upon the penal code definition of ‘owner’ as:

“a person who:

(A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor;

(B) has the right to restrict access to the property; or

(C) is the licensee of data or computer software.”

Dunn used the cell phone on a daily basis, had the right to place a password on it (and had), and the court determined Dunn had a ‘greater right to possession of the cell phone’.[March 3, 2016, Cause No. 05-15-00444-CV, pg. 23]  Further, the CoA notes earlier in the opinion that “[N]othing in the Texas Constitution or our common law suggests that the right of privacy is limited to unmarried individuals.”  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 20]

Interestingly, the court does not address the multiple licenses that are part of the software and operating system that users have to acknowledge and accept to use a modern cell phone.  I would expect that will start coming up as another layer to the definition of ‘owner’, though.

Accordingly, the CoA concludes that “the trial court did not abuse its discretion by determining appellees established a probable right to recover on their claims under the HACA.”  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 23]

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