The "Wiretap Act" (the "Act") is a federal law that is aimed at protecting your privacy in your communications with other persons. Typically, when you think of a "wiretap," the first thing that comes to mind is someone listening to your telephone calls. But, the Act protects more than that.
Under the Act, it is illegal to:
- Intentionally, or purposefully,
- Intercept, disclose, or use the contents of
- Any wire, oral, or electronic communication
- Through the use of a "device"
The Act provides criminal and civil penalties for violations, and it has various exceptions to when interceptions and disclosures are not illegal.
Although the Act defines most of these terms, federal cases that interpret the Act play a large role in understanding their meaning and how they apply to any particular case or situation. In addition, most states have laws similar to or based on the Act.
What Is "Intentional" Wiretapping
"Intentional" means that you intercepted a communication deliberately or on purpose. A mistake of law or "ignorance of the law" will not be a defense. So, for example, if you misunderstand the Act and think that it's not illegal for you to intercept another person's telephone call, but the tap was in fact illegal, you can be liable under the Act because you intentionally intercepted the call.
Interception, Disclosure, and Use
"Interception" is the acquisition of the contents of a communication, or, in other words, listening to another person's telephone conversation or reading another person's e-mail messages.
Generally, to be in violation of the Act, the interception has to take place at the same time the communication is made. So, for example, listening-in on a live telephone conversation is an "interception," but accessing stored e-mail messages is not.
"Disclosing" includes telling another person the contents of the communication, as well telling the general nature or "gist" of it. Disclosure is illegal if you know, or if you suspect, that the communication was intercepted in violation of the Act. So, if you illegally intercept a telephone communication in which the participants discuss their involvement in a crime, and you give that information to a newspaper reporter, you can be liable for violating the Act.
"Use" requires more than disclosure. The idea here is that the communication is being "used" for some type of gain. For example, if you illegally record a conversation by your ex-wife and later use it to help your case in a child-custody dispute, you can be liable under the Act.
Wire, Oral or Electronic Communication
"Wire" communications are made through the use of wire, cable or similar connection between the point of origin and the point of reception: it's the classic telephone call. In order for a communication to be by "wire," it must contain a human voice. So, an e-mail message doesn't qualify.
"Oral" communications are uttered or spoken, and the speaker has an expectation that it's private and will not be intercepted. For example, there is no violation of the Act when agents intercept and record a prisoner's conversations with other inmates because the prisoner has no reasonable expectation of privacy in prison.
An "electronic" communication is one that does not contain the human voice, but contains things like words or pictures. E-mail messages are the best example of such communications.
Under the Electronic Communications Privacy Act (ECPA), which protects e-mail messages from interception and disclosure to third parties, an exception allows employers to monitor employee email in the ordinary course of business. Although the meaning of that exception is not yet settled, it may permit an employer to monitor "business-related," but not personal, communications, or courts may look to whether the employer had a legitimate business reason for monitoring employee communications.
Use of a "Device"
The communication has to be intercepted by use of a "device," that is, some mechanical or electrical tool or apparatus, such as a tape recorder.
There are two exceptions for "devices" that can be used without violating the Act:
- Telephones and related equipment that are used by a subscriber in the ordinary course of business, including "extension" telephones. The idea here is to allow employers to listen-in on employee conversations with customers, and
- Hearing aids used to correct or improve subnormal hearing, but not to the point where one's hearing becomes better than normal. So, if your hearing is normal, you can't use a hearing aid for the purpose of intercepting communications
Exceptions to Liability under the Act
There are two primary exceptions that allow communications to be intercepted without violating the Act:
- The "provider" exception allows telephone service providers to listen to or monitor your telephone calls when they are directed to by law enforcement officers with a valid court order ("search warrant") or when it's necessary to provide you with service, to inspect the equipment, or to protect the provider's property or rights, such as when its network is being used without being paid for, and
- Law enforcement officials can intercept communications when one party consents to it, so, if you're suspected in illegal activities and a government informant consents, agents can listen to and record your conversations with the informant
Many state laws allow one-party consent to record telephone conversations, but some states require the consent of everyone on the telephone. So, if you're thinking of recording phone calls - even your own - be sure to check the laws in your area before you do so.
Questions for Your Attorney
- I think my phone is being tapped. Should I call the telephone company or the police?
- My ex-wife had been threatening to stop letting me visit my children unless I pay some more support. Can I tape our next phone conversation and use it against her in court?
- I think my husband is having an affair. Can I listen to and record his phone conversations on our home phone?