Everyone's a spy these days.
With the advent of smart phones, GPS and emails, texts and recordings, even the most non-tech-savvy person can record, intercept, follow or hack almost anyone. Jimmy Vaught talks about how this has impacted family law. Leigh de la Reza discusses the pros and cons of using these in family law cases. Our guest article this month is from David Sheppard. David is a long-time Austin criminal lawyer. His article is about the recent events at Penn State - what are the responsibilities that we all have when we know something isn't right.
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 | | Jimmy Vaught |
Elvis sang about it. Suspicion Minds. If any of you have seen Rear Window, with Jimmy Stewart and Grace Kelly, it was evident to Alfred Hitchcock, as a director, that voyeurism is something that few people can resist.  Watching drama unfold in front of us is ... exciting and somewhat illicit. When someone comes to meet with me and has spied on their spouse, their ex, or on their children, it feels invasive.
I grew up in the era of the cold war. Spy devices were unattainable by most normal people. Now anyone can be a spy.  Pick up a copy of Sky Mall, or search your smart phone for apps. Anyone (not me) can install programs on someone else's phone that gives the ability to see the call log, contact list, applications and more. The user is able to read all texts, emails and listen to voice messages. Not only are they are able to see the phone's location in real time, but even watch as a photo is being taken. There are even apps that record when the device is in the standby mode.
In my mind, hacking, videoing, recording and stalking all move past suspicious into the CREEPY zone. As Leigh de la Reza notes below, in Texas, recording only requires the knowledge of one of the parties. However, hacking and stalking elevate to criminal penalties. There are very few cases in which the results of spying are helpful to a case. |
 | | David Sheppard. |
The Lessons of Joe Paterno
When I wrote this article in November 2011, the Penn State scandal was just past the frenzy of who knew what and when. Since then, Joe Paterno's death has rekindled the subject.
What are the legal requirements to report abuse of children to the proper authorities? These vary from state to state, but in Texas, IF A PERSON ACTUALLY OBSERVES a situation in which a reasonable person would believe than an offense of a sexual or assaultive nature is being committed or is about to be committed against a child, the person is obligated to assist the child and immediately report the matter to a LAW ENFORCEMENT AGENCY. Failure to do so is a Class "A" misdemeanor offense, punishable by up to a year in jail.
But what about the situation where a person DOES NOT ACTUALLY OBSERVE THE ABUSE? Chapter 261 of the Texas Family Code mandates that any person who has cause to believe a child's physical or mental health or welfare has been adversely affected by abuse or neglect that has already occurred must immediately make a report. For those professionals who work with children, such as teachers and daycare workers, that reporting obligation exists whenever there is a reason to believe that the child has been or MAY BE abused or neglected. Those professionals must PERSONALLY make the report with 48 hours. In all cases, the report must be to either a law enforcement agency or one of several agencies, such as the Department of Family and Protective Services. Violations of these requirements are also a Class "A" misdemeanor.
The duty to report overrides the normal confidentiality privileges of clergy, attorneys, and medical providers. All Reports are, by law, confidential and those who report in good faith are protected from employer retaliation based upon the report.
So where would that leave Joe Paterno, if he were in Texas? Would he fall into the category of those that work with children? Probably, since almost all universities have similar sports camps for children and teens. Did his reporting of the alleged incident fulfill his duty? Probably not. In Texas, reporting must be made IN PERSON to a law enforcement agency, not to higher officials. 
David Sheppard
(512) 478-9483
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 | | Leigh de la Reza. |
Just because you can do something, doesn't mean that you should.
Texas, unlike many states, allows for "one party consent" when it comes to recording conversations. In other words, as long as one person consents to the recording it's lawful. However, if neither person in the conversation consents, it's wiretapping.
We've all heard the explosive argument between Mel Gibson and Oksana as they were divorcing and the angry rant by Alec Baldwin on his daughter's voice mail. Yet, is it really a good idea to record your spouse or child?
It depends. There may be an occasional worthy recording. However, most recordings are not as good as the recorder thinks they are. Either the person who is doing the recording sounds like they've staged and rehearsed their part or both people sound unreasonable and argumentative. Plus, at some point, multiple recordings become just plain creepy. Who in their right mind records day to day conversations? And I stress, "in their right mind."
Recording your children is even worse. No one wants to hear a recording of a parent asking their child, "What do you really think of daddy's new wife?" Leave the kids out of it.
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