Wiretapping refers to the process where one individual or party secretly listens to the conversation of another party over a:
- Telephone line;
- Fax machine;
- Computer; or
- Other communication devices.
Prior to the 1960s, law enforcement was not required to obtain a warrant before eavesdropping on a conversation. The United States Supreme Court later determined that individuals have a reasonable expectation of privacy in their phone conversations and that law enforcement must obtain a search warrant before wiretapping.
In recent years, law enforcement has used many state wiretapping laws in unique ways to arrest individuals who are secretly recording other individuals with video cameras that also record audio. In this context, secretly may simply mean recording the individual without their consent.
Wiretapping laws may vary by state so it may be helpful to consult with a local attorney to determine what laws apply in an individual’s specific location.
Can the Police Legally Wiretap Me?
Yes, law enforcement may use a wiretap to secretly record an individual. However, as noted above, they must have a search warrant.
In general, a search warrant requires that a law enforcement officer articulate facts and circumstances which demonstrate probable cause that there is, has been, or will be criminal activity. In addition, the locations to be searched must be described with particularity.
In order to obtain a wiretapping warrant, the requirements are more stringent. In addition to providing a sworn statement that supports probable cause and describing the locations to be searched with reasonable particularity, the law enforcement officer must:
- Identify those individuals whose communications will be tapped, including third parties;
- Provide a complete statement about previous applications for wiretaps of this individual or location, and
- Provide a statement explaining that all other, less intrusive investigatory means have been exhausted.
The reason for these strict requirements on police use of wiretaps is two fold. One, an individual’s privacy must be protected and this form of search and seizure is more invasive than most.
Two, the privacy of another, potentially innocent third party is paramount and should not be intruded upon unless the government can meet this high burden.
Is a Warrant Needed for Wiretapping?
Wiretapping by law enforcement is actually a relatively rare phenomenon, contrary to what movies and television would have the public believe. Law enforcement can use wiretaps in certain circumstances and they are a useful tool for law enforcement.
When most individuals think of wiretapping, they think of an intercepted phone call or a recorded, in person-conversation. Wiretapping laws, however, actually apply to any and all oral, wire, and electronic communications that are intercepted by law enforcement.
Federal laws regulate wiretapping by law enforcement. Intercepting or disclosing wire, oral and electronic communications is banned by the federal Wiretap Act.
This act also prohibits the manufacture, possession, and distribution of interception devices. The act also authorizes federal and state government agencies to intercept, use, and disclose records of the communications in legal proceedings if they are made in certain criminal investigations.
The types of communications that may be intercepted, disclosed, and used include:
- Pager numbers; and
- Telephone calls.
Prosecutors can use communications that are obtained from wiretapping as evidence in court under certain strictly regulated conditions. Wiretaps may be used by law enforcement to investigate:
However, it is most often used to investigate and prosecute cases involving controlled substances. The act outlines the types of criminal investigations in which a wiretap may be used.
Under the act, state officials may apply to investigate a variety of crimes, including:
- Drug dealing; and
- Other crimes that are dangerous to life, limb, or property and are punishable by more than one year in prison.
Federal law enforcement is permitted to use a wiretap for investigations of felonies. However, for wire or oral intercepts, they are limited to investigations that are specifically listed in a statute that is part of the Act.
Wiretap warrant requirements provide that law enforcement officers must complete a series of procedural steps in order to obtain a warrant for wiretapping. If these steps are not followed, a criminal case may be dismissed because the prosecution would not be able to use the wiretap evidence that was obtained at trial.
What Must the Police Show in Order to Get a Wiretap Warrant?
In order to obtain a court order for a wiretap, law enforcement must show that probable cause for a search warrant exists. Probable cause is the reason to believe that a crime is being committed and that the suspect being targeted is the perpetrator.
As noted above, law enforcement is required to show that they have exhausted all other less intrusive means of investigation or that those other means of investigation are too dangerous to undertake.
- A court order will essentially allow and, at the same time, limit the use of the wiretap. Typically, these types of court orders orders do the following:
- Put restrictions on how the information gathered can be used;
- Specify a limited period of time during which law enforcement is permitted to listen to conversations; and
- Limit the types of conversations the police are allowed to listen to.
The court may add any number of other restrictions to a wiretap warrant, including who is permitted to listen to the conversations and what kind of records law enforcement must keep.
Can I Be Liable for Wiretapping?
Yes, an individual may be held liable for wiretapping. If they are recording another individual’s voice without their consent, the individual recording may be held liable under their state’s wiretapping statute.
Certain states, for example, Illinois, have deemed their wiretapping laws unconstitutional as criminalizing wholly innocent, and perhaps protected, conduct. In some states, only the consent of one party is required.
This means that if the individual who is recording consents to the recording and appears on the recording, the wiretapping rules will not apply. In other states, such as California, wiretapping only applies to confidential communications.
Therefore, recording an individual in public who does not have a reasonable expectation of privacy will make the law inapplicable. The majority of states only require one party to consent to the wiretapping.
As previously noted, however, that individual must also appear on the recording. There are, however, some states that require both parties to consent, including:
- New Hampshire;
- Pennsylvania; and
If an individual’s state is not listed, this is because the laws are unclear regarding whether one or both of the parties must consent to the recording. Whether or not eavesdropper testimony will be allowed in court will depend largely on the method that was used to obtain the information and the nature of the conversation that was overheard.
There are certain conversations that are considered privileged, including:
A court may allow evidence from a nanny cam type recording device if there is no sound recording or if the video is muted.
Should I Contact an Attorney?
If you have any issues, questions, or concerns related to wiretapping in your state, it may be helpful to consult with a local attorney. If you are facing charges of wiretapping, you should consult a criminal attorney as soon as possible.
If you are being wiretapped, your attorney can provide you advice regarding whether law enforcement is abiding by the law and ensure your rights are protected.