Surveillance of Telephone: Federal Law Restrictions Attorney Joseph & Herzfeld Lawyer

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Restrictions on Nonconsensual Recording or Surveillance of Telephone Conversations

Introduction
The disclosure of President Clinton's relationship with Monica Lewinsky as a result of Linda Tripp's taping of telephone conversations with Lewinsky focused national attention on the laws regulating the recording and monitoring of telephone conversations. Constitutional and statutory laws limiting the electronic surveillance of telephone conversations have existed for more than 30 years, yet, as Tripp's subsequent legal problems indicate, those laws are not fully appreciated or understood. While law enforcement agencies have long had the capacity to monitor and record wire transmissions, the technology is now easily accessible to private individuals and businesses. But before that technology is employed, persons and businesses should have an understanding of the legal restrictions imposed by federal and state law upon taping telephone conversations and the consequences of violating those restrictions.

Federal Law Restrictions
In 1967, the United States Supreme Court decided that the federal Constitution prohibits government agents from secretly monitoring and taping telephone conversations. Finding that persons have a reasonable expectation of privacy in telephone conversations they seek to keep confidential, the Court ruled that the taping or monitoring of telephonic communications without any consent violates the constitutional prohibition on unreasonable searches and seizures. However, this decision had limited effect because restrictions imposed by the United States Constitution apply only to persons who are agents of the state or the federal government. Private individuals were not forbidden by federal law from taping telephone conversations.

Congress changed this in 1968 when it passed the Omnibus Crime Control and Safe Streets Act of 1968. This Act prohibits any interception of electronic or wire communications by either government agents or private individuals or entities. An "interception" occurs whenever an electronic or mechanical device is used to acquire the contents of an electronic communication. Any person who intentionally intercepts an electronic or wire communication or discloses or uses the content of a wire communication he or she knows was intercepted in violation of the Act is guilty of a crime punishable by up to five years' imprisonment and a fine. The Act also allows a person whose privacy has been invaded by an illegal interception to recover money damages in a civil action against the offender, and it prohibits the content of any illegally intercepted wire communication to be used in court proceedings.

There are several significant exceptions to the general prohibition on the interception of wire communications. The most significant is the "one-party consent" exception, which allows government agents to record telephone conversations when they have obtained the consent of one party to the conversation, such as a cooperating police informant. Private individuals may also record telephone conversations when one party consents to the taping, even if the one party is the individual doing the taping, as long as the taping is not for the purpose of committing a crime or committing a legal wrong against another person. Interception and recording by law enforcement agents also are allowed if they are pursuant to a court order.

Another exception allows the use of business extension lines to monitor and intercept telephonic communications. This exception allows a business to record telephone conversations over lines it controls if the interception is accomplished using equipment supplied by the telephone company and is done in the ordinary course of business. Thus, a business may record the telephone conversations of its employees if it is done for a legitimate business reason. Courts have decided, however, that employers must limit monitoring and taping to the business-related telephone conversations of the employees and may violate the Act if they intercept personal calls, especially where employees have been allowed to use business telephones to make and receive personal calls. Some decisions recognize that even personal calls may be monitored under the one-party consent exception if employees are made aware that all calls may be subject to monitoring and recording.

Some courts have ruled that taping by one family member of the telephone conversations of another family member on a telephone within the home is not a violation of the Act. This situation often arises where one spouse attempts to determine infidelity on the part of the other spouse. However, this exception is not recognized by all courts and has been rejected by some. An individual would be wise to obtain clear legal advice before relying upon a supposed intrafamily exception.

The Act prohibits not only interception of wire transmissions but also the interception of "over-the-air" telephonic transmissions. Thus, the interception of cellular telephone conversations is illegal unless within an exception to the Act. Monitoring and recording of conversations on cordless telephones are similarly covered by the Act.

Conclusion
Intercepting and monitoring telephone conversations, even if done with the best of intentions, can have serious legal consequences. State and federal law provide criminal penalties for the unauthorized recording of telephone conversations, and the person whose conversations have been intercepted may seek to recover money from the responsible parties as well. Before embarking on any course which might violate state or federal laws regulating the interception of telephone conversations, it is imperative that advice be obtained from experienced, competent legal counsel.