Electronic eavesdropping (e.g., recording phone calls) is a serious issue, and those who abuse it carelessly may find themselves civilly or even criminally liable.
Are There Laws Regulating the Use of Electronic Eavesdropping?
Federal law makes some forms of wiretapping illegal. There may also be state laws prohibiting such acts. Federal law imposes criminal penalties, and creates civil liability against anyone who:
- Intentionally intercepts any wire, oral or electronic communication
- Discloses the contents of any wire, oral, or electronic communication, knowing… that the information was obtained through the interception of a wire, oral or electronic communication
- Manufactures, assembles, possesses, or sells any electronic, mechanical, or other device knowing that the device will be used for unlawful purposes
What Type of Communications are Protected?
Telephone conversations and oral communications are protected against electronic eavesdropping. Oral communications are only protected if there is a reasonable expectation of privacy. Some people are not subject to liability for wiretapping at all. These people include:
- Switchboard operators and agents of wire or electronic communication services engaged in activities necessary to their service
- Employees of the Federal Communications Commission operating in the normal course of their employment
- Certain foreign intelligence officials
It should also be noted that anyone who intercepts a communication through the use of an extension telephone line used in the ordinary course of business is also excluded from liability. The interception of communications made readily accessible to the general public also is excepted from wiretapping laws.
Is There an Interspousal Exception?
Most courts have found no interspousal exception to the law. If a court finds that there is no such interspousal exception, the wiretapping spouse may not use any of the electronic evidence in the divorce proceedings, and may face a civil lawsuit or criminal charges.
Do I Need a Lawyer for My Wiretapping Issue?
As more and more courts prohibit wiretapping it is increasingly necessary to be aware of the law. An experienced divorce lawyer can advise you on whether you should use evidence gathered through electronic eavesdropping. An attorney also can help you avoid civil liability and criminal charges.