privacy texas evidence civil-procedure non-compete
Admissibility of screenshots of personal accounts on company computers
<p>There is a case in which employees of a company, all in Texas, engaged in skype conversations on their company laptops through personal skype accounts.  The employees discussed starting a competing business, and were fired as soon as management was made aware of the situation.</p>

<p>After the employees were fired, the firm obtained screenshots of the conversations using the logged-in skype account on one of the company laptops.</p>

<p>During these chats they also mentioned a former employee who was under a non-compete as being involved.  The firm sued the former employee for breach of contract and the screenshots of the chat were entered as evidence.</p>

<p>The defendants have asserted that the screenshots are not admissible since they were obtained from a private skype account without the user's consent.</p>

<p>Assuming the firm had no explicit use policy for the company laptops: Is there any case law that might inform the admissibility of the screenshots as evidence in civil litigation?</p>

<p>The answer is rather complex. There are three legal concerns. First, was the evidence obtained illegally? If so, it might not be admissible given the "exclusionary rule". The second is whether the evidence is authentic; the third is whether it is hearsay. </p>

<p>I mainly address the legality issue, since it is the most complex. Two things could make obtaining such evidence illegal (which is possibly relevant to whether the evidence is admissible). One would be if it was obtained by gaining unauthorized access to a computer (in violation of the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-121" rel="nofollow noreferrer">Stored Communications Act</a>). Since the computers were not personal property of the employees and the accounts were not hacked into, there seems to be no violation of that law. The other way is that it might constitute “illegal recording” i.e. wiretapping. I will mostly cite <a href="http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.16.htm#16.02" rel="nofollow noreferrer">Texas wiretapping laws</a>, which are quite similar to federal laws.</p>

<p>The basic prohibition (16.02(b)) states</p>

<blockquote>
  <p>A person commits an offense if the person:</p>
  
  <p>(1)  intentionally <em>intercepts</em>, endeavors to intercept, or procures
  another person to intercept or endeavor to intercept a <em>wire, oral, or
  electronic communication</em>;</p>
</blockquote>

<p>The word “intercept” is defined to mean</p>

<blockquote>
  <p>the aural or <em>other acquisition</em> of the contents of a wire, oral, or
  <em>electronic communication</em> through the use of an electronic, mechanical, or other device.</p>
</blockquote>

<p>Taking a screen shot of a message is acquisition of the content of a communication; it uses a device (a computer). So the message was intercepted, under a plain reading of the statute. (I will leave open the question of whether the “interception” has to be contemporaneous with the act of communicating: there is case law about this issue alluded to in <a href="http://openjurist.org/155/f3d/1051/united-states-v-smith" rel="nofollow noreferrer">United States v. Smith</a>, 155 F.3d 1051, but TMI).</p>

<p>The nature of the communication is important. A Skype text (but not a Skype voice transmission) is an electronic communication, defined as</p>

<blockquote>
  <p>a 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 photo-optical system</p>
</blockquote>

<p>A Skype text is not an oral communication. This distinction is important, because the definition of “oral communication” includes an escape clause that may allow recording. An “oral communication” is defined as:</p>

<blockquote>
  <p>an oral communication uttered by a person exhibiting an expectation
  that the communication is not subject to interception under
  circumstances justifying that expectation.  The term does not include
  an electronic communication.</p>
</blockquote>

<p>(where in the second instance i.e. the start of the block quote, “oral communication” has its plain meaning). So even though the law generally forbids intercepting communication, in the case of <em>oral</em> communications, and <em>only</em> oral communications, the communication has to be made under circumstances where you would reasonably expect the communication to be private. By contrast, there is no such limit on what constitutes an electronic communication (nor a wire communication).</p>

<p>As noted in <a href="http://www.emilymiskel.com/blog/illegal-evidence-wiretapping-hacking-and-data-interception-laws" rel="nofollow noreferrer">this article</a>, “Wire communications are protected against interception <em>regardless of the speaker’s expectation of privacy</em>”, citing <a href="http://openjurist.org/630/f2d/414/briggs-v-american-air-filter-co-inc-f-c-roby" rel="nofollow noreferrer">Briggs v. American Air Filter</a>, 630 F.2d 414. That court reasoned that</p>

<blockquote>
  <p>Wire communications, unlike oral communications, are protected against
  interception by electronic, mechanical, and other devices regardless
  of the speaker's expectation of privacy. Compare 18 U.S.C. § 2510(1)
  with 18 U.S.C. § 2510(2)</p>
</blockquote>

<p>It is important to notice what <a href="https://www.law.cornell.edu/uscode/text/18/2510" rel="nofollow noreferrer">18 U.S.C. § 2510(1)</a> actually says:</p>

<blockquote>
  <p>“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 between the point
  of origin and the point of reception (including the use of such
  connection in a switching station) furnished or operated by any person
  engaged in providing or operating such facilities for the transmission
  of interstate or foreign communications or communications affecting
  interstate or foreign commerce.</p>
</blockquote>

<p>The court’s conclusion that “wire communications, unlike oral communications, are protected against interception” doesn’t mean that there is an <em>express</em> statement within the law saying effectively “even if you don’t have a reasonable expectation of privacy, it’s still not okay to intercept”. Rather, that conclusion follows from the fact that there is a general prohibition against interception, plus there is no “expectation of privacy” escape attached to the definition of wire communication, as there is in the case of oral communication. </p>

<p>So there is some merit to the argument that the message was illegally intercepted. But now we come to the “so what” part. There is an “exclusionary rule”, that evidence obtained illegally can’t be used as evidence, but (quoting the article <em>supra</em>) “normal Texas law only prohibits the introduction of illegally-obtained evidence in criminal trials”: per <a href="http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.38.htm" rel="nofollow noreferrer">Texas Code Crim. Proc. art. 38.23</a>.</p>

<blockquote>
  <p>(a)  No evidence obtained by an officer or other person in violation
  of any provisions of the Constitution or laws of the State of Texas,
  or of the Constitution or laws of the United States of America, shall
  be admitted in evidence against the accused on the trial <em>of any
  criminal case</em>.</p>
</blockquote>

<p>You can use illegally-obtained evidence in civil trials (<a href="https://www.courtlistener.com/opinion/2437193/baxter-v-tex-dept-of-human-resources/" rel="nofollow noreferrer">Baxter v. Tex. Dept. of Human Resources</a>, 678 S.W.2d 265, 267):</p>

<blockquote>
  <p>The exclusionary rule codified in Tex.Code Cr.P. art. 38.23
  (Supp.1984) is inapplicable to the present case because the Code of
  Criminal Procedure applies only to criminal actions, and this is a
  civil action arising under the Texas Family Code. Tex. Code Cr.P.Ann.
  art. 1.02 (1977)</p>
</blockquote>

<p>Although illegally-obtained evidence might admissible in a Texas civil trial, there is also an overriding exception at the federal level, whereby illegal evidence is excluded from <em>all</em> proceedings comes from the Wiretap Act, per <a href="https://www.law.cornell.edu/uscode/text/18/2515" rel="nofollow noreferrer">18 USC 2515</a>. This states that intercepted wire or oral communications are broadly excluded:</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>If an oral or wire communication is intercepted, it cannot be used in a civil case (or in any other official action). But this provision does not apply to electronic communications. The reason for the omission of electronic communication from this law is that <a href="http://uscode.house.gov/statviewer.htm?volume=82&amp;page=216" rel="nofollow noreferrer">this particular section was enacted</a> in 1968, when there was no such thing as electronic communication, but §2511 was amended subsequently.</p>

<p>So, the bottom line is, the evidence is probably admissible, if it doesn't fail on authenticity or hearsay grounds. </p>

<p>This evidence would probably be admissible.</p>

<p>The general rule is that relevant evidence is admissible and this evidence appears to be relevant. See, e.g., Federal Rule of Evidence 402.</p>

<p>It also appears that there is a witness who could authenticate the evidence by testifying how the pictures of the screens came to be taken and the chain of custody of those pictures.</p>

<p>This would not constitute hearsay, because the definition of hearsay excludes a statement of a party-opponent. See, e.g., Federal Rule of Evidence 801(d)(2).</p>

<p>The closest question presented by this fact pattern is whether this evidence was obtained illegally and should therefore be excluded from evidence on that basis.</p>

<p>In a criminal case, illegally obtained evidence must generally be excluded pursuant to the 4th Amendment (as applied to the states through the 14th Amendment in state courts in addition to state constitutional language parallel to the 4th Amendment). But, the exclusionary rule of the 4th Amendment only applies in criminal cases.</p>

<p>In a civil case, such as this one, however, a balancing test is applied to evidence that is illegally obtained (assuming for the sake of argument that it is illegally obtained). And, usually, when the risk of systemic harm of privacy interests is modest and the probative value of the evidence is high, as in this case, the evidence would be admissible under this balancing test.</p>

<p>Moreover, it isn't at all obvious that taking pictures of the screen shots was illegal. No passwords or hacking was involved, the computers being used were company property that the employer had a right to demand that the employees cease using that was not seriously contested, and the information was basically in "plain view." Also, the employer was (presumably) not a government and hence the state action requirement that triggers generalized 4th Amendment protections from unlawful searches and seizures without probable cause by law enforcement agents don't apply.</p>

<p>Finally, there are no plausible evidentiary privileges that apply in this case.</p>

<p>Therefore, the evidence is probably admissible.</p>
