"Wiretapping" technically refers to a process where one party secretly listens to the conversation of another party over a telephone line, fax machine, computer or other communication device. Before the 1960s, police were not required to obtain a warrant before eavesdropping on a conversation. However, the Supreme Court determined that individuals have a reasonable expectation of privacy in their phone conversations and that police must obtain a search warrant before wiretapping.
During recent years, police have used many state’s wiretapping laws in unique ways to arrest individuals who are “secretly” recording someone with a video camera that record audio as well. “Secretly” in this context may simply mean without the other individual’s consent.
Yes, police can use a wiretap to secretly record you, but not without a search warrant. Generally, a search warrant requires an officer to articulate facts and circumstances that point to probable cause that there is, has been or will be criminal activity. Additionally, the places to be searched must be described with particularity.
For wiretapping, the warrant requirement is a little steeper. In additional to a sworn statement supporting probable cause and describing the places to be search with reasonable particularity, police officers must identify those whose communications will be tapped (including third parties), a complete statement about previous applications for wiretaps of this person or place, and a statement explaining that all other, less intrusive investigatory means have been exhausted.
The reason for this heightened requirement for the government to secretly listen to you is two fold. First, your privacy is must clearly be protected, and this type of “search and seizure” is more invasive than most. Second, the privacy of other, potentially innocent third parties is paramount and should not be intruded upon unless the government can meet this high burden.
Yes. As alluded to above, if you are recording an individual’s voice without their consent, you may likely be held liable under your states wiretapping statute.
Some states, such as Illinois, have deemed their wiretapping laws unconstitutional as criminalizing wholly innocent (perhaps protected) conduct. Some states only require one-party consent, meaning if the individual doing the recording consents, and they appear on the recording, wiretapping rules simply do not apply. Other states, such as California, have specified that wiretapping only applies to confidential communications, and therefore recording someone in public who does not have a reasonable expectation of privacy makes the law in applicable.
Most states require only one-party to consent to wiretapping, meaning that so long as one party consents to their voice appearing on a recording, wiretapping does not apply. However, some states require both parties to consent. These states include:
- New Hampshire
If your state is not listed, it is because the law is unclear as to whether one or both parties must consent to recording.
If you are facing wiretapping charges, you should consult a criminal attorney immediately as this may be an infringement of your First Amendment rights. Also, if you are being wiretapped, seeking the advice of an experienced attorney can help ensure the police are abiding by the law and your rights are protected.