Eavesdropping is considered a crime in many states when one party secretly records, overhears, or shares the private communications of another person without their consent or a court order, or when an enhanced listening device is used. This is so even if the communication occurs in a public setting.

For example, you are the plaintiff and you stand behind the defendants and their lawyer in a coffee shop while they are preparing their coffee beverages so you can overhear them. You hear them discussing their legal strategy and hear them confess their guilt.

Even though the discussion occurred in a public setting, you knew that the conversation was intended to be private. Nonetheless, you use the information you gathered from that conversation to press your case. Under these circumstances, you may be charged with a criminal offense relating to your eavesdropping activities.

What is Wiretapping?

Wiretapping laws also overlap with the crime of eavesdropping. Depending on your jurisdiction, private citizens may be able to record another person without their consent so long as one of the parties who is being recorded has given their consent.

In a law enforcement scenario, the police are required to obtain a court order or legal authorization to record the criminal activities or communications of a suspect. Law enforcement authorities will present to a judge their probable cause for the wiretap.

The judge may also require that law enforcement show that they have exhausted other less intrusive means of getting the information, or that the other methods they have considered would be too dangerous.

What Will an Order to Eavesdrop Look Like?

If law enforcement is successful in presenting their request for a warrant based on sufficient probable cause, the judge will issue the order allowing the wiretapping to proceed. The court’s order may include limitations for law enforcement to conduct the wiretapping.  It may include restrictions on the type of information to be gathered, such as:

  • How long the wiretapping may continue;
  • When and where the wiretapping may occur; and
  • Whether law enforcement must exclude any parties from the wiretapping activities.

Are there Non-Law Enforcement Eavesdropping Scenarios?

For various reasons, people may place hidden cameras in their home to record certain activities. For example, concerned parents may install a “nanny cam” to observe the actions of a caretaker whom they believe may be abusing their child. These cameras can record visuals as well as sounds. Whether or not this is legal depends on your state.

Although it is generally permissible to record what happens in your own home, some  consider it a crime if the camera records the communications of persons in your home who are unaware that their communications are being recorded.

It also may depend where in the home the recording occurs. For example, it may be perfectly fine to record your unsuspecting caretaker in the kitchen but not in the bathroom where there is a greater expectation of privacy. The court also will consider whether the recording was made for a legal purpose.

As well, it is generally not considered a crime to record people out and about in public, such as at the mall or on the street. However, if the recording is being conducted for harassing or voyeuristic purposes, for example, you may be arrested for committing a criminal offense.

Another possible scenario occurs in the workplace when an employer records its employees. Employers may record employees when they suspect the employee of theft of office equipment, to protect proprietary information, to limit liability, or  for other job-related purposes.

Whether an employer may record an employee’s activities — and by what methods, such as via telephone, computer key strokes, electronic mail, or key access — depends on federal laws (such as the Electronic Communication Privacy Act) and the laws of your state.

If you are concerned about workplace monitoring by your employer, you may consider consulting with an attorney to better understand your rights.

Are Eavesdroppers Allowed to Testify in Court?

Whether or not an eavesdropper can testify in court will depend on the method by which they obtained the information about which they wish to testify and on the nature of the conversation they overheard. For example, some conversations are considered privileged — such as, attorney/client, doctor/patient, marital communications — and are allowed into evidence in court under very limited circumstances.

If law enforcement have obtained recordings of the activities or communications of criminal suspect under the authority of a court order, that testimony will be allowed in court. Also, a court may permit evidence from a “nanny cam” if there is no sound recording or if the video is muted.

Should I Hire an Attorney If I Have Issues Regarding Eavesdropping Evidence?

It can be very upsetting to find out your conversation has been overheard or you have been filmed secretly. If you have been recorded without your consent, regardless of the setting, you should consider consulting with a criminal attorney.

The attorney can help you understand what crimes have been committed against you and what recourse you have against the parties who eavesdropped on you.