The Wiretap Act, codified by 18 U.S. Code § 2511, is a federal law aimed at protecting privacy in communications with other persons. Typically, when you think of a “wiretap,” the first thing that comes to mind is someone listening to your telephone calls. But the Act protects more than that. Under the Act, it is illegal to:

• intentionally or purposefully
• intercept, disclose, or use the contents of
  1. any wire, oral, or electronic communication
  2. through the use of a “device.”

The Act provides criminal and civil penalties for violations, although it creates various exceptions to when interceptions and disclosures are illegal.

Although the Act defines most of the above terms, federal cases that interpret the Act play a large role in understanding their meaning and how they apply to any particular case or situation. In addition, most states have laws similar to or based on the Act, also meant to protect individuals’ privacy.

What Is “Intentional” Wiretapping?

“Intentional” means that someone has intercepted a communication deliberately. A mistake of law or “ignorance of the law” will not be a defense. So, for example, if someone misunderstands the Act and think that it is not illegal to intercept another person’s telephone call or hack into their email, but the tap was in fact illegal, the person will still be liable under the Act, having intentionally intercepted the call.

What the Wiretap Act Means by Interception, Disclosure, and Use

“Interception” is the acquisition of the contents of a communication, or, in other words, listening to another person’s telephone conversation or reading another person’s email, text, or other messages.

Generally, to be in violation of the Act, the interception has to take place at the same time the communication is made. So, for example, listening in on a live telephone conversation is an “interception,” but accessing stored files on a computer is not. (Often, however, such activity is separately illegal.)

“Disclosing” includes telling another person the contents of the communication, as well as telling the general nature or “gist” of it. Disclosure is illegal if someone knows or suspects that the communication was intercepted in violation of the Act.

So, if someone illegally intercepts a telephone communication in which the participants discuss their involvement in a crime, and give that information to a newspaper reporter, the wiretapper can be liable for violating the Act. This might seem strange, since the person was attempting to publicize a crime. But the conduct is nevertheless illegal.

“Use” requires more than disclosure. The idea here is that the communication is being utilized for some type of gain. For example, someone who illegally records a conversation by an ex-wife and later uses it to bolster a child-custody dispute case could be liable under the Act.

What the Wiretap Act Means by Wire, Oral, or Electronic Communication

“Wire” communications are made through the use of wire, cable, or similar connection between the point of origin and the point of reception. A telephone call is the classic example.

An “electronic” communication is one that does not contain the human voice, but contains things like words or pictures. Email messages are the best example of such communications.

Under the Electronic Communications Privacy Act (ECPA), codified as 18 U.S. Code § 2510, which protects email messages from interception and disclosure to third parties, an exception allows employers to monitor employee email in the ordinary course of business. Although the meaning of that exception is not yet settled, it may permit an employer to monitor “business-related,” but not personal, communications. Courts may also look to whether the employer had a legitimate business reason for monitoring employee communications.

What the Wiretap Act Means by Use of a “Device”

The communication has to be intercepted by use of a “device,” that is, some mechanical or electrical tool or apparatus, such as a tape recorder, in order to fall under the Wiretap Act.

There are two exceptions for “devices” that can be used without violating the Act:

• Telephones and related equipment that are used by a subscriber in the ordinary course of business, including “extension” telephones. The idea here is to allow employers to listen in on employee conversations with customers.
• Hearing aids used to correct or improve subnormal hearing, but not to the point where one’s hearing becomes better than normal. So, someone whose hearing is normal cannot legally use a hearing aid for the purpose of intercepting communications.

Exceptions to Liability Under the Wiretap Act

There are two primary exceptions that allow communications to be intercepted without violating the Wiretap Act:

• The “provider” exception, which allows telephone service providers to listen to or monitor telephone calls once they have been directed to do so by law enforcement officers with a valid court order (“search warrant”) or when it is necessary to provide a customer with service, to inspect the equipment, or to protect the provider’s property or rights, such as when its network is being used without being paid for.
• Use by law enforcement officials, who can legally intercept communications when one party consents to it. So, if someone is suspected of illegal activities and a government informant consents, agents can listen to and record conversations with the informant.

Many state laws allow one-party consent to record telephone conversations, but some states require the consent of everyone on the telephone. So, if you are thinking of recording phone calls, even your own, be sure to check the laws in your area before you do so.