Our lawyers advise clients in cases that involve federal wiretapping and eavesdropping, as well as civil litigation regarding unlawful recordings and the interception of electronic communications.
Below, we will discuss:
- the laws associated with wiretapping and data interception;
- the penalties of violating these laws;
- and possible defenses to charges of wiretapping and eavesdropping.
If you are concerned about potential liability regarding the issues discussed below, contact us for a consultation.
What you need to know about recording phone calls and face-to-face conversations
Years ago, “wiretapping” meant connecting a listening device to someone’s phone and intercepting conversation as they ran through a landline wire.
Today, “wiretap” laws include much more than listening to phone calls.
“Wiretapping” today is more accurately described as “eavesdropping.”
Things, like drones, smartphones, and “nanny cams,” forced Congress to expand the federal wiretap laws that were put in place in the 1960’s.
The Wiretap Act, codified by 18 U.S.C. § 2511 and amended by the Electronic Communications Privacy Act in 1986, is a federal law that makes it illegal to secretly record any face-to-face conversation, telephone call, email, text, or “electronic communication” that is “reasonably expected to be private.”
So, for example, recording someone where they have a “reasonable expectation of privacy”—like their bedroom—without them knowing, you may be found liable under federal wiretap laws.
However, there are many exceptions to this rule—which we will discuss below.
These rules say that you can secretly record someone if at least one person in the conversation consents to the recording.
Federal “One-Party Consent” Rule
Federal wiretap statutes permit private citizens to record any conversation in which “one of the parties has given prior consent.”
This means that, you can record your conversations with other people, as long as “one person”—you—consents to it.
18 U.S.C. § 2511(2)(d) states that it is not unlawful for a private citizen to intercept a wire, oral, or electronic communication “where such person is a party to the communication.”
It is not unlawful to record yourself having a conversation with someone because, technically, you are a party to the conversation and you have consented to the recording.
On the other hand, “two-party consent” states would require you to disclose the fact that you were recording someone to them, or even have everyone in the room consent to the recording.
Here’s the catch…
You actually have to take part in the conversation.
Secretly recording two other people, without taking part in the conversation, and without consent from at least one of them, is considered a felony under the federal wiretap laws.
The Argument in Favor of the Federal One-Party Consent Rule
The argument in favor of allowing a person to record other people through the one-party consent rule is basically that the non-consenting party is taking the risk of the indiscretion of his listener when he speaks.
According to the Supreme Court in Lopez v. United States, 373 U.S. 427, 439 (1963), nothing can justify excluding an accurate version of a conversation that someone could ultimately testify to from memory.
Since nothing would prevent a listener from testifying to what they heard or immediately reproducing what they heard, nothing should prevent a listener from lawfully recording that statement.
Intercepting Emails and Electronic Communications
In 1986, Congress passed the Electronic Communications Privacy Act (“ECPA”).
The ECPA extended government restrictions on wiretapping from telephone calls to include transmissions of electronic data by computer and other digital devices.
It also added new provisions prohibiting interception of stored electronic communications[1] and the use of tracking devices.[2]
ECPA Prohibitions
The ECPA makes it a federal crime to:
- engage in;
- possess;
- use; or
- disclose
- information obtained through illegal wiretapping or electronic eavesdropping.
Who does ECPA apply to?
The ECPA applies to:
- any person who
- intentionally
- intercepts
- or endeavors to intercept
- wire, oral, or electronic communications
- by using an electronic, mechanical, or other devices
- unless the conduct is authorized or one person consents
What are “Wire,” “Oral,” and “Electronic Communications”?
The first two are pretty straightforward:
- A “wire communication” is any communication that includes the human voice—like a phone call.[3] Although a phone call may be transferred digitally at some point, it is not thought of as an electronic communication.
- An “oral communication” is a face-to-face conversation made with a reasonable expectation of privacy.[4]
On the other hand, “electronic communications” is defined very broadly.
The best example of an “electronic communications” is an email, but under the Wiretap Act, an electronic communication can include any transfer of data of any nature that does not contain a human voice. Instead, electronic communications contain things like words and pictures.[5]
Intent to Wiretap
18 U.S.C. § 2511 of the ECPA, makes it a felony to “intentionally intercept” wire, oral, or electronic communications.
The ECPA also outlaws “endeavoring to intercept” a communication—which is essentially attempted wiretapping and eavesdropping.
Consequences for violating 18 U.S.C. § 2511 for intentional use of wiretapping and eavesdropping equipment or endeavoring to intercept communications include:
- Imprisonment for not more than five years; or
- a fine of not more than $250,000 for individuals
- a fine of not more than $500,000 for organizations
Possession of Unlawful Wiretapping Equipment
18 U.S.C. § 2512 makes it a felony to “manufacture, distribute, possess, [or] advertise” wire, oral, or electronic intercepting devices.
Like the act of wiretapping, in order to be found guilty of possession of wiretapping equipment, the prosecution must prove that you intentionally manufactured, distributed, possessed, or advertised these types of devices.
Consequences for violating 18 U.S.C. § 2512 for unlawful possession of wiretapping and eavesdropping equipment include:
- Imprisonment for not more than five years; or
- A fine of not more than $250,000 for individuals
- A fine of not more than $500,000 for organizations
Disclosure of Information Obtained by Unlawful Wiretapping
18 U.S.C. § 2511 makes it a felony to use or disclose information obtained through illegal wiretapping or electronic eavesdropping.
Consequences for violating 18 U.S.C. § 2511 for illegal use of information obtained by unlawful wiretapping include:
- Imprisonment for not more than five years; or
- a fine of not more than $250,000 for individuals
- a fine of not more than $500,000 for organizations
Alternative Punishments
- Forfeiture of Your Equipment: 18 U.S.C. § 2520 permits the seizure and forfeiture of any device “used, sent, carried, manufactured, assembled, possessed, sold or advertised” in violation of § 2511 or § 2512.
- Alternative Fine: If there is a monetary loss or gain associated with the offense, 18 U.S.C § 2511(4)(a) permits making an offender pay an alternative fine “not more than twice the amount of the loss or gain.”[6]
Additional Consequences
Facing Multiple Charges of Wiretapping
Intent to commit wiretapping, possession of wiretapping equipment, and the unlawful disclosure of information obtained through wiretapping are all charged as separate offenses.
Prosecutors add up these counts and use the fact that they require separate punishments to intimidate defendants with lengthy sentences.
When faced with these lengthy sentences, defendants are more likely to plead guilty in exchange for a reduced sentence.
This is known as “overcharging” and is a common practice for prosecutors.
By accepting reduced sentenced through plea bargaining, defendants allow prosecutors to avoid the responsibility of having to prove they actually did what they are accusing you of.
Facing Both Civil and Criminal Penalties
Not only may you face multiple charges of criminal wiretapping, but charges of wiretapping and eavesdropping can also carry civil liability.
Criminal penalties for violating federal wiretap statutes are brought by the Department of Justice (“DOJ”).
Civil penalties are brought against you personally by the person accusing you of intercepting their data or recording them without their consent.
Civil penalties are limited to money damages, which are to be paid to your accuser.
If you find yourself to be a defendant in both civil and criminal proceedings, you must respond separately to each jurisdiction.
Our lawyers have experience working with clients in both civil and criminal cases of federal wiretapping. We strive to ensure that our clients receive the best defense to crimes like wiretapping and tactics like overcharging. If you are facing multiple charges of violating federal wiretap laws, contact us for a consultation.
Recording and Eavesdropping in the News
Things like drones, dashboard and helmet cameras, “nanny cams,” smartphones and other recording devices are a way to combat illegal and discriminatory behavior.
When used properly, these recordings have been used to prove cases against employers who discriminate, law enforcement who abuse their power, and cheating spouses.
- In 2018, Sean Donis, charged with eavesdropping and burglary after he used the “Find My iPhone” app to track down his cheating wife. After suspecting his wife had been cheating, Donis used the “Find My iPhone” app to track down the family iPad, which his wife had taken with her. He then filmed her in bed with her lover. Prosecutors argued that Donis broke into the home, invaded their privacy, and recorded them without their consent. Thanks to the work of his attorney, the court cleared Donis of all charges.
- In 2015, Soloman Shah’s was awarded $500,000—$100,000 for defamation, $200,000 for medical malpractice and $200,000 in punitive damages—after his doctor made comments about Mr. Shah having syphilis and tuberculosis during an operation. Since he was going to be fully anesthetized, Mr. Shah turned on the audio recorder on his cell phone before the procedure.
- Due to the “one-party consent” rule, Mr. Shah’s attorneys were able to successfully argue that only one party (Mr. Shah) needed to consent to the recording. The court agreed.
- In December of 2015, the National Labor Relations Board (“NLRB”) struck down a Whole Foods policy regarding the recording of conversations in the workplace. The policy prohibited employees from recording conversations in the workplace and required employees to seek permission from managers to make recordings on non-work time. The NLRB concluded that these policies were unfair labor practices in violation of the National Labor Relations Act (“NLRA”) because they infringed on employee’s right to engage in “concerted activity,” which is protected by Section 7 of the NLRA.
- According to Section 7 of the NLRA, audio and video recordings and social media postings can be considered protected activity if the employees are “acting in concert for their aid and protection,” and there is “no overriding employer interest.”
- In 2011, on the other hand, the NLRB upheld a hospital’s policy banning recordings in the workplace because it was determined that the employer had an interest in protecting patient’s health information and privacy.
- The NLRB applies to all employers, unionized or not and all employees have the right to file a charges with the NLRB if they believe a company policy interferes with their protected rights or constitutes an unfair labor practice.
Establishing a Defense
Not every recording can be considered incontrovertible evidence of guilt.
Below, we outline some of the common defenses to charges of unlawful wiretapping and eavesdropping.
If you are concerned about potential liability and would like to learn more about the defenses discussed below, contact us for a consultation.
One-Party Consent Rule
Prosecutors cannot prove the element of “intent to intercept a communication” if one of the parties to the communication consents.
- Even if the other party does not consent, federal “one-party consent” laws permit you to record a conversation, which you are a party to.
- 18 U.S.C. § 2511(2)(d) states that it is not unlawful for a private citizen to intercept a wire, oral, or electronic communication “where such person is a party to the communication.”
- “One-party consent” laws allow individuals to record incidents of discrimination without having to face federal prosecution.
- As long as you are one of the parties to the conversation, your consent to your own recording is enough to make it legal.
- Consent can be given implicitly or explicitly.
- Consent to record does not require explicit approval.
- Someone who has been given notice that a conversation will be recorded is thought to have implicitly consented to that recording.
- Implicit consent is viable defense to an alleged unlawful recording.
- The consent must be freely given and cannot be coerced.
- The consent exception to the federal wiretapping laws may be available to you as long as the communication was not coerced.
Inoperable Equipment
United States v. Simels, 654 F.3d 161, 171 (2d Cir. 2011), held that possession of an inoperable wiretap device did not violate § 2512.
In Simels, the government argued that § 2512 covered inoperable devices because it punished possession of a “device” whose “design” rendered it useful for interception of wire, oral, or electronic communications.
The Court disagreed with this argument.
According to the court, even if the “design” of a device would render it useful for intercepting a communication, the statutory definition of “electronic, mechanical, or another device” is “any device or apparatus which can be used to intercept a communication.”
Since the wiretapping equipment the defendant had in his possession was inoperable, the court accepted his defense and did not consider his equipment to be a “device” which was capable of being used within the meaning of § 2512(1)(a)(b).
Lack of Intent
In order to be found guilty of violating the prohibitions described in the ECPA, prosecutors must prove that you intentionally intercepted a communication.
You don’t need to know that your conduct is unlawful.
If prosecutors can prove that you intended to intercept the communication—regardless of your knowledge of the law—you may be found liable.
Likewise, if you unintentionally intercept a conversation, there is no crime.
The “purpose” of the recording was not criminal.
In order to be convicted of wiretapping under the ECPA, you must intend to commit a crime or tort independent of the act of recording itself.[7]
If prosecutors cannot prove that the reason for your recording someone else was to carry out a separate crime or tort, there is no cause of action against you under the ECPA.
This is true, even if the means by which you intercept a communication is criminal or tortious. However, you may face other penalties.
For example, suppose you enter a private area under—without permission—with the intent to make a secret recording.
In this scenario, you could be facing civil and criminal liability for trespassing, as well as eavesdropping, because you intended to carry out a secret recording while committing the independent criminal act of trespassing.
This type of context-based liability takes into account the purpose of making the secret recording.
Work with an Experienced Criminal Defense Attorney
If you receive a subpoena in relation to federal wiretapping charges or you are concerned about potential liability regarding the issues discussed above, contact us for a consultation.
