Posted on 22nd September, 2009 | Tags : keylogger, procedures, spyware, wiretapping | No Comment
We are occasionally approached to assist with the gathering of evidence via keyloggers (usually incorrectly referred to as Spyware) by individuals hoping to gather information about a spouse’s activity.
We always decline these offers, as it is illegal to do so.
Refer to the following excerpts from the Texas Penal Code:
TPC § 16.02. Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications
Text of section effective until Sept. 1, 2005
(a) In this section, “covert entry,” “communication common carrier,” “contents,” “electronic, mechanical, or other device,” “intercept,” “investigative or law enforcement officer,” “oral communication,” “electronic communication,” “readily accessible to the general public,” and “wire communication” have the meanings given those terms in Article 18.20, Code of Criminal Procedure.
(b) A person commits an offense if he:
(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 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.
(c) It is an affirmative defense to prosecution under Subsection (b) that:
(1) an operator of a switchboard or an officer, employee, or agent of a communication common carrier whose facilities are used in the transmission of a wire or electronic communication intercepts a communication or discloses or uses an intercepted communication in the normal course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property
of the carrier of the communication, unless the interception results from the communication common carrier’s use of service observing or random monitoring for purposes other than mechanical or service quality control checks;
(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:
(A) oral or written consent for the interception is given by a magistrate before the interception;
(B) an immediate life-threatening situation exists;
(C) the person is a member of a law enforcement unit specially trained to:
(i) respond to and deal with life-threatening situations; or
(ii) install electronic, mechanical, or other devices; and
(D) the interception ceases immediately on termination of the life-threatening situation;
(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:
(A) by a station for the use of the general public;
(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.
(d)(1) A person commits an offense if he:
(A) intentionally manufactures, assembles, possesses, or sells an electronic, mechanical, or other device knowing or having reason to know that the device is designed primarily for nonconsensual interception of wire, electronic, or oral communications and that the device or a component of the device has been or will be used for an unlawful purpose; or
(B) places in a newspaper, magazine, handbill, or other publication an advertisement of an electronic, mechanical, or other device:
(i) knowing or having reason to know that the device is designed primarily for nonconsensual interception of wire, electronic, or oral communications;
(ii) promoting the use of the device for the purpose of nonconsensual interception of wire, electronic, or oral communications; or
(iii) knowing or having reason to know that the advertisement will promote the use of the device for the purpose of nonconsensual interception of wire, electronic, or oral communications.
(2) An offense under Subdivision (1) is a state jail felony.
(e) It is an affirmative defense to prosecution under Subsection (d) that the manufacture, assembly, possession, or sale of an electronic, mechanical, or other device that is designed primarily for the purpose of nonconsensual interception of wire, electronic, or oral communication is by:
(1) a communication common carrier or a provider of wire or electronic communications service or an officer, agent, or employee of or a person under contract with a communication common carrier or provider acting in the normal course of the provider’s or communication carrier’s business;
(2) an officer, agent, or employee of a person under contract with, bidding on contracts with, or doing business with the United States or this state acting in the normal course of the activities of the United States or this state; or
(3) a law enforcement agency that has an established unit specifically designated to respond to and deal with life-threatening situations or specifically trained to install wire, oral, or electronic communications intercept equipment.
(f) Except as provided by Subsections (d) and (h), an offense under this section is a felony of the second degree.
(g) For purposes of this section:
(1) An immediate life-threatening situation exists when human life is directly threatened in either a hostage or barricade situation.
(2) “Member of a law enforcement unit specially trained to respond to and deal with life-threatening situations” means a peace officer who has received a minimum of 40 hours a year of training in hostage and barricade suspect situations. This training must be evidenced by the submission of appropriate documentation to the Commission on Law Enforcement Officer Standards and Education.
(h)(1) A person commits an offense if, knowing that a government attorney or an investigative or law enforcement officer has been authorized or has applied for authorization to intercept wire, electronic, or oral communications, the person obstructs, impedes, prevents, gives notice to another of, or attempts to give notice to another of the interception.
(2) An offense under this subsection is a state jail felony.
TPC § 16.04. Unlawful Access to Stored Communications
(a) In this section, “electronic communication,” “electronic storage,” “user,” and “wire communication” have the meanings assigned to those terms in Article 18.21, Code of Criminal Procedure.
(b) A person commits an offense if the 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.
(c) Except as provided by Subsection (d), an offense under Subsection (b) is a Class A misdemeanor.
(d) If committed to obtain a benefit or to harm another, an offense is a state jail felony.
(e) It is an affirmative defense to prosecution under Subsection (b) that the conduct was authorized by:
(1) the provider of the wire or electronic communications service;
(2) the user of the wire or electronic communications service;
(3) the addressee or intended recipient of the wire or electronic communication; or
(4) Article 18.21, Code of Criminal Procedure.
