WIRETAPPING & ELECTRONIC SURVEILLANCE; AND RELATED MATTERS SUMMARY At a time when individual privacy is fast becoming an illusion, electronic meddlers and eavesdroppers bent on industrial or political eavesdropping seem to have become more prevalent. The Electronic Communications Privacy Act (ECPA) and its equivalents at state law outlaw such misconduct. Subject to a few exceptions, it is a federal crime to use a device to intentionally: secretly eavesdrop upon or record the telephone conversations of others; secretly eavesdrop upon or record the private face-to-face conversations use information that is the fruit of criminal eavesdropping, use a scanner to capture cellular phone conversations (but the secretly gain access to the e-mail messages of others; gain unauthorized access to computer stored communications; or secure the telephone numbers called from a particular phone or called into a particular phone. Although the conduct may be prosecuted as a state crime in some jurisdictions, it is generally not a federal crime to use a device to: record your own telephone conversation or to hear or record someoneelse's telephone conversation with the permission of one of the parties; "monitor" someone else's telephone conversation over a regular extension phone for business purposes; record your own face-to-face conversations or to hear or record someone else's conversation with the permission of one of the parties; hear or record any public conversation or other discussion occurring under circumstances where the speakers should reasonably have anticipated that they would have been overheard; use everyday radio equipment to capture conversations or other radio communications; use or disclose the fruits of lawful eavesdropping. The telephone company and others who provide communication service, and the police and government intelligence agents acting under court supervision, enjoy greater latitude to intercept communications. WIRETAPPING AND ELECTRONIC SURVEILLANCE: INTRODUCTION At a time when individual privacy is fast becoming an illusion, electronic meddlers and eavesdroppers bent on industrial or political espionage seem to have become particularly prevalent. The Electronic Communications Privacy Act (ECPA) and its equivalents at state law outlaw such misconduct. This is a quick look at their provisions with a primary focus upon intrusions other than those conducted for law enforcement purposes.' ECPA and its state counterparts outlaw wiretapping, electronic eavesdropping, and other forms of using a machine or device to secretly capture the communications of others.2 They also condemn the use or disclosure of the fruits of wiretapping or electronic eavesdropping and even the possesson of 1 For a more extensive examination of wiretapping and electronic surveillance as law enforcement tools, see Carr, The Law of Electronic Surveillance (1989), and Fishman, Wiretapping and Eavesdropping (1989). Since its focus is not the protection afforded the commercial exploitation of words or ideas, this report skirts the related mysteries of the copyright law, patent law, and trade secrets; for a discussion of those areas see, Nimmer, Nimmer on Copyright (1992); Lipscomb, Walker on Patents (1989); Chisum, Patents; Jager, Trade Secrets Law (1992); Milgrim, Milgrim on Trade Secrets (1990). 2 Here and elsewhere the forms of eavesdropping are divided into three types of interceptions: wire, oral and electronic; that is, eavesdropping accomplished by wiretapping or intercepting wire communications; that accomplished by secretly listening in on face-to-face conversations or intercepting oral communications; and secretly capturing other forms of communications such as telex messages or electronic mail messages stored in a computer or intercepting electronic communications. For citations to state statutes outlawing interception, see Appendix A. For citations to state statutes see Appendix D. CRS-2 interception equipment. Offenders invite federal and state civil as well as criminal liability. Subject to a few exceptions, it is a federal crime to use a device to intentionally: - secretly eavesdrop upon or record the telephone conversations of others; - secretly eavesdrop upon or record the private face-to-face conversations of others; use information that is the fruit of criminal eavesdropping, - disclose information that is the fruit of criminal eavesdropping; - possess equipment primarily designed to secretly capture conversation; - capture a telephone conversation involving a cordless phone; - use a scanner to capture cellular phone conversations (but the penalties may be minor if the use is relatively innocent); - intercept nonverbal communications such as telex; - secretly gain access to the e-mail messages of others; - gain unauthorized access to computer stored communications; or secure the telephone numbers called from a particular phone or called into a particular phone. Although the conduct may be prosecuted as a state crime in some jurisdictions, it is generally not a federal crime to use a device to: - record your own telephone conversation or to hear or record someone else's telephone conversation with the permission of one of the parties; - "monitor" someone else's telephone conversation over a regular extension phone for business purposes; 4 For citations to state statutes see Appendix E. B Attorneys who wiretap or eavesdrop may be acting contrary to the ethical standards of their profession, see Undisclosed Recording of Conversations by Private Attorneys, 42 South Carolina Law Review 995 (1991) and the cases and bar association advisory opinions which it cites. For citations to state civil liability statutes see Appendix F. CRS-3 - record your own face-to-face conversations or to hear or record someone else's conversation with the permission of one of the parties; - hear or record any public conversation or other discussions occurring under circumstances where the speakers should reasonably have anticipated that they would have been overheard; - use everyday radio equipment to capture conversations or other radio communications; The telephone company and others who provide communication service, and the police and government intelligence agents acting under court supervision, enjoy greater latitude to intercept communications. BACKGROUND At common law, "eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet; or are indictable at the sessions, and punishable by fine and finding of sureties for [their] good behavior." Although early American law proscribed common law eavesdropping as well, it was little prosecuted and by the late nineteenth century had "nearly faded from the legal horizon." Instead, state wiretap laws and statutes outlawing indiscretion by telephone and telegraph operators preserved the spirit of the common law prohibition in this country. By the time of the landmark Supreme Court decision in Olmstead in 1928, at least forty-one of the forty-eight states had passed laws forbidding telephone and telegraph employees and officers from disclosing the content of telephone or telegraph messages or prohibiting wiretapping or both. On the federal level, 6 4 Blackstone, Commentaries on the Laws of England, 169 (1769). 7 "Eavesdropping is indictable at the common law, not only in England but in our states. It is seldom brought to the attention of the courts, and our books contain too few decisions upon it to enable an author to define it with confidence.... It never occupied much space in the law, and it has nearly faded from the legal horizon." 1 Bishop, Commentaries on the Criminal Law, 670 (1882). • Olmstead v. United States, 277 U.S. 438, 479-80 n.13 (1928)(Brandeis, J., dissenting). Olmstead is remembered most today for the dissents of Holmes and Brandeis, but for four decades it stood for the view that the Fourth Amendment's search and seizure commands did not apply to government |