The federal wiretap act: the permissible scope of eavesdropping in the family home.I. INTRODUCTION
Few, if any, courts find a violation of the Federal Wiretap wiretap n. using an electronic device to listen in on telephone lines, which is illegal unless allowed by court order based upon a showing by law enforcement of "probable cause" to believe the communications are part of criminal activities. Act when a concerned parent eavesdrops or secretly records a minor child's telephone conversation in the family home. (1) This consensus emerged among the Federal circuits, notwithstanding the statutory language of the Federal Wiretap Act, which prohibits "any person" from intercepting oral, wire, or electronic communications. (2) While courts have agreed on the narrow proposition that wiretapping A form of eavesdropping involving physical connection to the communications channels to breach the confidentiality of communications. For example, many poorly-secured buildings have unprotected telephone wiring closets where intruders may connect unauthorized wires to listen in on phone in the parent-child context generally falls outside of statutory prohibitions, the general applicability of the Wiretap Act in the domestic realm remains unclear. (3) The Supreme Court has provided little guidance on the issue and has repeatedly declined requests to squarely square·ly
1. Mathematics At right angles: sawed the beam squarely.
2. In a square shape.
3. address the reach of the Act inside the family home. (4) As a result, the extent to which the Act exempts family members remains unsettled unclear.
This note addresses wiretapping in the family home and explores the myriad factual scenarios addressed by courts in order to determine when wiretapping in the domestic realm transgresses from lawful Licit; legally warranted or authorized.
The terms lawful and legal differ in that the former contemplates the substance of law, whereas the latter alludes to the form of law. A lawful act is authorized, sanctioned, or not forbidden by law. and benign to possible criminal or civil liability. Part II addresses the Federal Wiretap Act's general prohibitions, including both the statutory and common law exceptions relied upon by courts in applying the Act in the domestic context. Part II will also discuss the relevant legislative history. Part III addresses the scope of the Act in the family home and analyzes the proffered justifications for permitting or restricting domestic eavesdropping Secretly gaining unauthorized access to confidential communications. Examples include listening to radio transmissions or using laser interferometers to reconstitute conversations by reflecting laser beams off windows that are vibrating in synchrony to the sound in the room. . In conclusion, Part IV discusses the effect of the development and proliferation proliferation /pro·lif·er·a·tion/ (pro-lif?er-a´shun) the reproduction or multiplication of similar forms, especially of cells.prolif´erativeprolif´erous
n. of sophisticated surveillance technologies on wiretapping in the family home.
A. Title III Title III Program is a U.S. Federal Grant Program to improve education History
The Title III Program began as part of the Higher Education Act of 1965, which sought to provide support to strengthen various aspects of the schools through a formula grant program to accredited, General Statutory Prohibitions
Congress enacted the Federal Wiretap Act as part of the Omnibus omnibus: see bus. Crime Control and Safe Streets Act of 1968 (Title III) in an effort to better articulate a balance between the privacy rights of individuals and the legitimate needs of law enforcement. (5) The Act seeks to safeguard privacy in oral and wire communications while simultaneously articulating when law enforcement officials may intercept intercept
in mathematical terms the points at which a curve cuts the two axes of a graph. such communications. (6) Title III prohibits the intentional in·ten·tion·al
1. Done deliberately; intended: an intentional slight. See Synonyms at voluntary.
2. Having to do with intention. interception of wire, oral or electronic communications, unless specifically provided for in the statute. (7) Under the Act, an interception occurs by the "aural aural /au·ral/ (aw´r'l)
1. auditory (1).
2. pertaining to an aura.
Relating to or perceived by the ear. or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." (8) Pursuant to the Act, a wire communication includes "any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other connection." (9) Unlike wire communications, federal law protects oral communications only where there is a reasonable expectation of privacy. (10)
The original Wiretap Act prohibited pro·hib·it
tr.v. pro·hib·it·ed, pro·hib·it·ing, pro·hib·its
1. To forbid by authority: Smoking is prohibited in most theaters. See Synonyms at forbid.
2. only the intentional interception of wire or oral communications. (11) As other methods of communication became increasingly commonplace, such as cellular phones, cordless phones A wireless telephone that transmits to and receives signals from a base station within a range of a few hundred feet. Cordless phones are for local use and cannot travel long distances as can cellphones and satellite phones. See DECT and multihandset cordless. and electronic communications transmitted in digital form, Congress amended the Wiretap Act with the Electronic Communications and Privacy Act of 1986 (ECPA (Electronic Communications Privacy Act of 1986) Signed into law in 1986, the ECPA extends legal protection against wiretapping and other forms of unauthorized interception to e-mail, cellular telephones, pagers, computer transmissions and communications ) to also prohibit pro·hib·it
tr.v. pro·hib·it·ed, pro·hib·it·ing, pro·hib·its
1. To forbid by authority: Smoking is prohibited in most theaters. See Synonyms at forbid.
2. the intentional interception of electronic communications. (12) Title I of the ECPA defines electronic communications as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic electromagnetic /elec·tro·mag·net·ic/ (-mag-net´ik) involving both electricity and magnetism.
pertaining to or emanating from electromagnetism. , photoelectronic or photooptical system...." (13) The ECPA not only prohibits the interception of electronic communications, but also the unauthorized access to these communications while in storage pursuant to the Stored Communications Act The establishment of the Federal Communications Commission (FCC) in 1934, the regulatory body for interstate and foreign telecommunications. Its mission is to provide high-quality services at reasonable cost to everyone in the U.S. on a nondiscriminatory basis. created under Title II of the ECPA. (14) The ECPA also bars the use and disclosure of an illegally obtained communication, although such liability requires more than proof of intentional conduct. (15)
States may also enact statues regulating wiretapping. (16) All states, with the exception of Vermont, have enacted wiretap statutes The Wiretap Statute et seq is title III of the Omnibus Crime Control and Safe Streets Act of 1968. It makes it illegal for anyone to intercept or disclose intercepted telephone communications, unless so ordered by a court of competent jurisdiction. . (17) To avoid preemption preemption
U.S. policy that allowed the first settlers, or squatters, on public land to buy the land they had improved. Since improved land, coveted by speculators, was often priced too high for squatters to buy at auction, temporary preemptive laws allowed them to acquire , states may adopt more stringent standards than required under Federal law, but not less restrictive. (18) Thus, States cannot admit evidence that would be suppressed in Federal Court, yet could exclude evidence admissible (algorithm) admissible - A description of a search algorithm that is guaranteed to find a minimal solution path before any other solution paths, if a solution exists. An example of an admissible search algorithm is A* search. in Federal court. (19)
B. Enumerated This term is often used in law as equivalent to mentioned specifically, designated, or expressly named or granted; as in speaking of enumerated governmental powers, items of property, or articles in a tariff schedule. Statutory Exceptions
Title III expressly excludes certain classes of individuals from the operation of the statute, but contains no explicit exception for spouses or family members. (20) For example, switchboard operators, agents of communications service providers A Communications Service Provider or CSP is a company that transports information electronically. The term encompasses public and private companies in the wireline, wireless, Internet, cable, satellite, and managed services businesses. engaged in service related activities and certain government employees operating in the normal course of business are exempt from liability under Title III. (21)
Additionally, as provided in the Act, one party to the communication may consent to the interception, and in limited circumstances may lawfully law·ful
1. Being within the law; allowed by law: lawful methods of dissent.
2. Established, sanctioned, or recognized by the law: the lawful heir. authorize To empower another with the legal right to perform an action.
The Constitution authorizes Congress to regulate interstate commerce.
authorize v. to officially empower someone to act. (See: authority) a third party interception. (22) The consent exception permits interception of "a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception" (23) Absent such consent, only a court of competent jurisdiction may authorize interception." (24) Some courts rely on the one-party consent exception in the context of parent-child wiretapping suggesting that a parent may vicariously vi·car·i·ous
1. Felt or undergone as if one were taking part in the experience or feelings of another: read about mountain climbing and experienced vicarious thrills.
2. consent to the interception based on genuine concern for the child's welfare. (25)
Moreover, the Wiretap Act carves out an exception for the use of extension telephones. (26) The exception applies to "standard" telephonic instruments furnished fur·nish
tr.v. fur·nished, fur·nish·ing, fur·nish·es
1. To equip with what is needed, especially to provide furniture for.
2. to a subscriber or user by a communication carrier and used by the subscriber in his or her "ordinary course of business." (27) The statutory definition neglects to elaborate on what conduct falls within the ordinary course of business and the Supreme Court has yet to address the scope of the exception. (28) Federal and State courts have interpreted the phrase "in the ordinary course of business" differently depending on the context. (29) In the commercial context, courts interpret the phrase narrowly. (30) Businesses may avoid Title III liability if the interception is for a legitimate business purpose, routine and with notice. (31) In the domestic relations domestic relations. For psychological and sociological aspects, see marriage. For legal aspects, see divorce; husband and wife; parent and child. context, however, courts broadly interpret the phrase "in the ordinary course of business" permitting family members to intercept each other's telephone conversations by listening on another phone extension in the family home. (32)
C. Interspousal Wiretapping Common Law Exception
The Supreme Court has not yet addressed the split in the federal circuits on the issue of interspousal wiretapping. (33) The issue generally arises where one spouse conducts a wiretap of the conversations engaged in by the other spouse by attaching a recording device to an extension phone in the family home. (34) In Simpson v. Simpson, (35) the Fifth Circuit created an implied exception for interspousal wiretapping in order to promote tranquility in the home. (36) The Simpson court reasoned that issues relating to relating to relate prep → concernant
relating to relate prep → bezüglich +gen, mit Bezug auf +acc marital disputes and domestic conflicts are generally matters of state law and as such fall outside the purview The part of a statute or a law that delineates its purpose and scope.
Purview refers to the enacting part of a statute. It generally begins with the words be it enacted and continues as far as the repealing clause. of the federal wiretap statute. (37)
The majority of federal appellate courts A court having jurisdiction to review decisions of a trial-level or other lower court.
An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. have rejected Simpson, holding Title III applicable to interspousal wiretapping in the marital home. (38) Courts rejected the logic of Simpson arguing that Title III is a criminal statute with little justification for exempting spouses. (39) Moreover, even the few states retaining the doctrine of interspousal tort tort, in law, the violation of some duty clearly set by law, not by a specific agreement between two parties, as in breach of contract. When such a duty is breached, the injured party has the right to institute suit for compensatory damages. immunity would be unable to shield criminal prosecutions resulting under Title III. (40) Courts have criticized the Simpson court's statutory analysis and interpretation of legislative history. (41)
Title III prohibits "any person" from intercepting oral, wire, or electronic communications unless "specifically" authorized au·thor·ize
tr.v. au·thor·ized, au·thor·iz·ing, au·thor·iz·es
1. To grant authority or power to.
2. To give permission for; sanction: by statute. (42) Thus, because spouses are not specifically exempted, the statute unambiguously applies to wiretapping within the marital home. (43) Though Title III originated as a crime control statute, the legislative history reveals congressional awareness of electronic eavesdropping in the domestic realm. (44) At a congressional hearing Congressional hearings are the principal formal method by which committees collect and analyze information in the early stages of legislative policymaking. Whether confirmation hearings — a procedure unique to the Senate — legislative, oversight, investigative, or a on invasions of privacy held prior to the enactment of Title III, Senator Long noted that in the non-governmental arena "[t]he three large areas of snooping ... are (1) industrial (2) divorce cases (3) [and] politics." (45) Additionally, Robert Blakey, a drafter of Title III, testified that "private bugging ... can be divided into two broad categories, commercial espionage espionage (ĕs`pēənäzh'), the act of obtaining information clandestinely. The term applies particularly to the act of collecting military, industrial, and political data about one nation for the benefit of another. and marital litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. ." (46) Most significantly, Congress could have codified cod·i·fy
tr.v. cod·i·fied, cod·i·fy·ing, cod·i·fies
1. To reduce to a code: codify laws.
2. To arrange or systematize. the Simpson exception when it subsequently amended Title III. (47)
Title III provides for both criminal and civil liability for a violation of the Federal Wiretap Act. (48) Title III states in pertinent part: "whoever violates subsection subsection
any of the smaller parts into which a section may be divided
Noun 1. subsection - a section of a section; a part of a part; i.e. (1) of this section shall be fined under this title or imprisoned im·pris·on
tr.v. im·pris·oned, im·pris·on·ing, im·pris·ons
To put in or as if in prison; confine.
[Middle English emprisonen, from Old French emprisoner : en- not more than five years, or both." (49) A civil cause of action is available to "any person" whose wire or oral communication is intercepted, disclosed, or used, and may be brought against "any person" who "intercepts, discloses, or uses, or procures any other person to intercept, disclose or use such communication." (50) The victim may recover compensatory and punitive damages Monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer. , as well as any reasonable attorney's fees attorney's fee n. the payment for legal services. It can take several forms: 1) hourly charge, 2) flat fee for the performance of a particular service (like $250 to write a will), 3) contingent fee (such as one-third of the gross recovery, and nothing if there is no and costs. (51) Moreover, Title III authorizes the suppression of information obtained by means of an illegal interception and its fruits. (52)
In the domestic context, the Federal circuits are split as to whether they must suppress illegal recordings made by private parties. (53) In United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. v. Murdock, (54) the Sixth Circuit interpreted Title III to imply a "clean hands freedom from guilt, esp. from the guilt of dishonesty in money matters, or of bribe taking.
See also: Hand " exception that does not require suppression of an illegally obtained recording made by a private party. (55) The court reasoned that suppression is a remedy relied upon to deter law enforcement personnel. (56) Consequently, where law enforcement is not involved in the initial illegal interception, subsequent suppression fails to operate as a deterrent de·ter·rent
Tending to deter: deterrent weapons.
1. Something that deters: a deterrent to theft.
2. . (57) In contrast, the First Circuit ruled that allowing the government to use a recording illegally obtained by a private party would undermine the privacy interests Title III aims to protect. (58)
III. THE SCOPE OF THE FEDERAL WIRETAP ACT IN THE MARITAL HOME
A. Application of the Wiretap Act to Interspousal Wiretapping
Title III has no express exception for interspousal wiretapping. (59) Congressional awareness of wiretapping in domestic conflicts and divorce litigation suggests Congress intended wiretapping occurring in the marital home to fall within the purview of Title III. (60) In the past, the doctrine of interspousal tort immunity recognized by some states influenced courts to imply interspousal immunity under Title III. (61) In recent years support for the immunity doctrine in the tort context has declined. (62) Interspousal tort immunity would not bar criminal prosecutions because Title III is a criminal statute. (63) Title III aims at protecting individual privacy of communication, "the fact that one party to a taped conversation is a spouse should have no bearing whatsoever on the availability of criminal penalties." (64)
The majority of Federal courts addressing the issue consistently reject an implied exception for electronic surveillance between spouses. (65) In United States v. Jones, (66) the court asserted that the legislative history of Title III "leaves no doubt" that the operation of Title III reaches private electronic surveillance and that Congress was cognizant cog·ni·zant
Fully informed; conscious. See Synonyms at aware.
Adj. 1. of the use of such surveillance in divorce litigation. (67) Notwithstanding the express language of the statute and legislative intent, a small number of courts imply an interspousal exception on the theory that Congress did not intend to reach conflicts in the marital home. (68) Consequently, certain Federal circuits effectively deny spouses civil recovery under Title III in such circumstances. (69)
Courts generally agree with Simpson's narrow proposition that state courts, rather than federal courts, are better suited to handle domestic conflicts. This assertion, however, does not necessarily imply Congressional intent to create an exception for interspousal wiretapping. (70) In the context of interspousal wiretapping, the proposition seems less relevant since permitting electronic surveillance between spouses does little, if anything, to promote domestic tranquility. (71) On the contrary, the very act of surreptitiously sur·rep·ti·tious
1. Obtained, done, or made by clandestine or stealthy means.
2. Acting with or marked by stealth. See Synonyms at secret. wiretapping a spouse in the family home frustrates domestic tranquility. (72) Accordingly, there is little logic in excepting from the operation of Title III "willful Intentional; not accidental; voluntary; designed.
There is no precise definition of the term willful because its meaning largely depends on the context in which it appears. , unconsented to electronic surveillance between spouses." (73)
Courts following Simpson draw erroneous erroneous adj. 1) in error, wrong. 2) not according to established law, particularly in a legal decision or court ruling. distinctions between third-party surveillance that occurs in the marital home at the request of a spouse and unaided un·aid·ed
Carried out or functioning without aid or assistance: made an unaided attempt to climb the sheer cliff. surveillance by a spouse. (74) These courts assert that the former is a more poignant invasion of privacy invasion of privacy n. the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. , while the latter is consistent with the parties' expectations of privacy toward each other in the home. (75) Courts sharply criticize crit·i·cize
v. crit·i·cized, crit·i·ciz·ing, crit·i·ciz·es
1. To find fault with: criticized the decision as unrealistic. See Usage Note at critique. this distinction opining o·pine
v. o·pined, o·pin·ing, o·pines
To state as an opinion.
To express an opinion: opined on the defendant's testimony. that the relevant inquiry is whether the privacy of the non-consenting party has been invaded in a manner unauthorized by Title III. (76) Whether a third party or a spouse installs the recording device is irrelevant. (77) Not only is the privacy of the non-consenting spouse violated vi·o·late
tr.v. vi·o·lat·ed, vi·o·lat·ing, vi·o·lates
1. To break or disregard (a law or promise, for example).
2. To assault (a person) sexually.
3. , but also the privacy of third parties to the conversation. (78) While it may make little difference whether a spouse or a third party installs the recording device, a court may analyze the complexity of the unit and the sophistication so·phis·ti·cate
v. so·phis·ti·cat·ed, so·phis·ti·cat·ing, so·phis·ti·cates
1. To cause to become less natural, especially to make less naive and more worldly.
2. and intrusiveness in·tru·sive
1. Intruding or tending to intrude.
2. Geology Of or relating to igneous rock that is forced while molten into cracks or between other layers of rock.
3. Linguistics Epenthetic. of the listening device in evaluating whether the activity violates Title III. (79)
Unlike in the parent-child context, courts have been reluctant to apply the telephone extension exemption to interspousal wiretapping in divorce litigation. (80) Listening on a telephone extension in the family home, while undoubtedly an invasion of privacy, is a less intrusive in·tru·sive
1. Intruding or tending to intrude.
2. Geology Of or relating to igneous rock that is forced while molten into cracks or between other layers of rock.
3. Linguistics Epenthetic. method of eavesdropping. Such use requires the listener to be physically present in the home, at the time of the conversation, and limits eavesdropping to the length of the single call. (81) On the contrary, a recording or wiretapping device invades the privacy at both ends of the telephone line. It is also unlimited in scope, recording all calls made to and from the residence on all subjects. (82) While in some contexts such a distinction might prove significant, courts hearing divorce litigation apply Title III to forbid for·bid
tr.v. for·bade or for·bad , for·bid·den or for·bid, for·bid·ding, for·bids
1. To command (someone) not to do something: I forbid you to go.
2. the use of even a residential phone by one spouse to make recordings of the other spouse's private conversations. (83) Unlike the justification for wiretapping in the parent-child to protect a child's welfare, the motivation for interspousal wiretapping is rarely benign, but rather a calculated endeavor to gather incriminating in·crim·i·nate
tr.v. in·crim·i·nat·ed, in·crim·i·nat·ing, in·crim·i·nates
1. To accuse of a crime or other wrongful act.
2. evidence during divorce litigation. (84) It is likely the extension phone exemption is also applicable where a family member listens to a conversation to protect another family member against harm. (85)
B. Reluctance to Apply Title III to the Parent-Child Context
The majority of courts that have addressed the issue acknowledge that wiretapping in the marital home is within the purview of Title III. Courts have been reluctant, however, to extend the reach of Title III to the parent-child context. (86) Courts excepting parental eavesdropping or wiretapping of minor children in the family home from the operation of Title III have focused on the legislative history and Congressional intent of Title III. (87) Courts have noted that Congressional concern about evidence from wiretaps being used in marital disputes is "qualitatively different" than electronic eavesdropping on minor children. (88) In exempting parental taping, courts have relied on the doctrine of vicarious vicarious /vi·car·i·ous/ (vi-kar´e-us)
1. acting in the place of another or of something else.
2. occurring at an abnormal site.
1. consent or have been willing to interpret the telephone extension exception broadly.
1. Vicarious Consent
Some federal courts have applied Title III's one party consent requirement to situations involving a parent intercepting a minor child's conversation. (89) The courts have found the consent requirement satisfied where the parent intercepting the communication vicariously consents on behalf of his or her minor child motivated by a genuine, good faith, concern for the child's welfare. (90) In Pollock v. Pollock, (91) the Court held that a custodial parent's taping of a minor child's conversations with a non-custodial parent was legitimate upon a showing of "a good faith objectively reasonable basis for believing such consent was necessary for the welfare of the child." (92) The doctrine not only applies to situations involving a parent intercepting a child's communication with another family member, but also to a child's communications with third parties. (93)
2. Extension Phone Exemption
Other courts, reluctant to find vicarious consent, have focused instead on Congress's "intention to abjure from deciding a very intimate question of familial familial /fa·mil·i·al/ (fah-mil´e-il) occurring in more members of a family than would be expected by chance.
adj. relations." (94) In Newcomb v. Ingles This article is about an American supermarket chain. For a town in Gran Canaria, see Playa del Inglés.
Ingles (NYSE: IMKTA) is a regional supermarket chain based in Asheville, North Carolina, where Robert "Bob" Ingle opened the first store in Asheville, NC in , (95) upon reaching majority, a child brought an action alleging his mother and grandfather violated Title II by installing a wiretap device in order to record his conversations with his father. (96) The court applied the telephone extension exemption and found that "listening on an extension and tapping the line within the home in the context here is not material." (97) Likewise, courts extended this theory to the taping of a child's conversations with third parties. (98) In Commonwealth v. Barboza, (99) the Massachusetts Appeals Court The Massachusetts Appeals Court is the intermediate appellate court of Massachusetts. It was created in 1972 as a court of general appellate jurisdiction, and hears most appeals from the departments of the Trial Courts of Massachusetts (including the Massachusetts Land Court), the held that parents who recorded the conversations of their minor son fearing he was sexually involved with a fifty-seven year old man did not violate Title III. (100) In the parent-child context, courts reason that wiretapping arising out of parental concern for a child is not "so close a question as one that fell within the scope of Congress's concern about evidence from wiretaps being used in marital disputes." (101)
While courts consistently recognize a parent's legitimate right to eavesdrop eaves·drop
intr.v. eaves·dropped, eaves·drop·ping, eaves·drops
To listen secretly to the private conversation of others. on a child in the family home the justification courts rely on is less clear. (102) Applying the theory of vicarious consent in the parent-child context produces the most consistent result while respecting Congressional intent. (103) This theory is applicable regardless of whether the intercepted communication is that of another family member or a third party. If courts require a finding of a good faith objectively reasonable basis for believing consent is necessary to protect a child, the concern that parties would intercept communications solely to gain an advantage in a divorce or custody proceeding diminishes. (104) Additionally, if the court satisfied the objectively reasonable standard and admitted the recorded conversation in a proceeding, concern for the child's welfare overrides any other detrimental det·ri·men·tal
Causing damage or harm; injurious.
detri·men effect resulting from admitting the evidence. (105)
The extension phone exception, on the other hand, is more difficult to reconcile with the parent-child cases. While it is arguably ar·gu·a·ble
1. Open to argument: an arguable question, still unresolved.
2. That can be argued plausibly; defensible in argument: three arguable points of law. consistent with Title III to permit listening in on an extension phone in the family home, most courts considered cases involving conduct that exceeds the mere use of an extension phone or other standard equipment. (106) Courts have tried to avoid the plain language of the telephone extension exemption by asserting that listening in on a telephone extension, recording a call, or installing a wiretapping device is a "distinction without a difference." (107) Yet, courts have recognized precisely such differences in other contexts. (108) Listening in on a telephone extension requires a party's physical presence in the house and is limited to the length of the conversation. In contrast, recording or tapping device is virtually unlimited and considerably more intrusive. (109)
Thus, while the extension phone exemption theoretically exempts a parent from Title III liability, the exception, as expressly provided for in the statute, has not proven highly relevant or logically sound in this context. (110) Rather than expanding the extension phone exemption to include recording devices or advanced wiretapping equipment not contemplated by the statutory exception, the court should apply vicarious consent to provide consistency. (111)
C. Sophisticated Surveillance Technology in the Family Home
Another problem presented in the context of domestic wiretapping is the use of sophisticated surveillance technology in the family home. Sophisticated surveillance equipment permits individuals to intrude intrude,
v to move a tooth apically. , with greater ease, into protected communications. (112) The sophistication of the listening device will not likely affect wiretapping in the parent-child context, as courts have emphasized concern for the child's welfare and whether the intrusion was objectively reasonable conduct. (113) In other domestic contexts, the sophistication of the listening equipment and the degree of intrusiveness will arguably influence the court's determination of whether such wiretapping constitutes reasonable activity. (114)
1. Electronic Mail
With respect to electronic mail, courts have held, by analogy to interspousal wiretapping, that there is no implied exception enabling one spouse to intercept the electronic communications or access a stored communication of the other spouse. (115) While this proposition makes sense logically, in practice it requires an understanding of how an electronic communication passes through cyberspace Coined by William Gibson in his 1984 novel "Neuromancer," it is a futuristic computer network that people use by plugging their minds into it! The term now refers to the Internet or to the online or digital world in general. See Internet and virtual reality. Contrast with meatspace. . (116) In White v. White, (117) the wife hired a private investigator to retrieve her husband's stored e-mail from the hard drive of the family computer. She intended to be use this information in a contested custody dispute. (118) The plaintiff mistakenly believed that his AOL (A division of Time Warner, Inc., New York, NY, www.aol.com) The world's largest online information service with access to the Internet, e-mail, chat rooms and a variety of databases and services. password completely restricted access his e-mail. (119) The White court found that the wife did not violate the New Jersey Wiretap Act because the Act was not meant to extend to e-mail retrieved by the recipient and then stored. (120) Moreover, because it was a family computer the wife was authorized to access the computer and did not use the husband's password. (121) The husband had no reasonable expectation of privacy in the stored communications. (122) Consequently, there is an expectation of privacy in electronic communications while in transit, but that expectation diminishes once the transmission is complete and the communication is stored. (123)
2. Video Surveillance
Family members and spouses are also likely to use video surveillance with greater frequency. Video surveillance, however, is not within the purview of Title III. (124) The legislative history of Title III indicates that Congress intended to prevent only the interception of oral, wire or electronic communications. (125) Congress defined interception to include only aural interception. (126) Courts have generally exempted silent television and video surveillance is exempted from the operation of Title III but video surveillance containing an audio portion may be within the operation of Title III. (127)
Courts have grappled with the applicability of Title III, a crime control statute, in the domestic realm. It is imperative that courts provide clear guidelines guidelines,
n.pl a set of standards, criteria, or specifications to be used or followed in the performance of certain tasks. with respect to wiretapping in the domestic context because, as one commentator noted, "nearly 80 percent of reported wiretapping matters involve wiretaps within the family context." (128) In the context of interspousal wiretapping, courts have emphasized the clear and unambiguous language of the statute to bring interspousal wiretapping within the operation of Title III. In the parent-child context, however, courts have been willing to read the statute's express language broadly to protect the welfare of minor children and to protect parents from potential liability for eavesdropping out of concern for their children.
The legislative history of Title III emphasizes that one of the primary concerns of the drafters was to protect privacy. By emphasizing when such an expectation of privacy is reasonable courts might be better equipped to apply the Wiretap Act in the family home. Title III aims to prohibit only unreasonable intrusions, not all intrusions. Courts will face considerable challenge in articulating an objectively reasonable standard as technologies develop and are used with greater frequency in the family home.
(1.) Schieb v. Grant, 22 F.3d 149, 154 (7th Cir. 1994) (acknowledging father's use of an extension phone to record minor son's conversations with mother permissible per·mis·si·ble
Permitted; allowable: permissible tax deductions; permissible behavior in school.
per·mis under the Wiretap Act); Newcomb v. Ingle in·gle
1. An open fire in a fireplace.
2. A fireplace.
[Perhaps Scottish Gaelic aingeal, fire, light. , 944 F.2d 1534, 1536 (10th Cir. 1991) (holding interception by custodial parent of minor son's conversations with father outside the scope of the Wiretap Act); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir. 1977) (stating husband's recording of wife's conversations with minor child excepted under Wiretap Act).
(2.) 18 U.S.C. [sections] 2511(1) (2000).
(3.) See Simpson v. Simpson, 490 F.2d 803, 805-06 (5th Cir. 1974) (contending Congress did not intend for the Wiretap Act to reach domestic conflicts in the marital home). But see United States v. Jones, 542 F.2d 661, 673 (6th Cir. 1976) (stating Congress intended Title III to prohibit electronic surveillance in marital litigation).
(4.) See, e.g., United States v. Ojeda Rios, 495 U.S. 257 (1990) (addressing Title III requirement of a seal on recordings of intercepted communications); Dalia v. United States, 441 U.S. 238 (1979) (stating government agents entitled en·ti·tle
tr.v. en·ti·tled, en·ti·tling, en·ti·tles
1. To give a name or title to.
2. To furnish with a right or claim to something: to enter private premise covertly cov·ert
1. Not openly practiced, avowed, engaged in, accumulated, or shown: covert military operations; covert funding for the rebels. See Synonyms at secret.
2. pursuant to Title III order); United States v. Giordano, 416 U.S. 505 (1974) (addressing procedure for obtaining judicial authority to intercept wire communications in investigation of serious offense).
(5.) See Dalia, 441 U.S. at 250 n.9, 252.
(6.) See Gelbard v. United States, 408 U.S. 41, 48 (1972).
(7.) 18 U.S.C. [sections] 2511(1) (2000) which states in relevant part: "Except as otherwise specifically provided in this chapter any person who--(a) Intentionally in·ten·tion·al
1. Done deliberately; intended: an intentional slight. See Synonyms at voluntary.
2. Having to do with intention. intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication ... shall be punished...." A violation of the Act required that the interception occur contemporaneously con·tem·po·ra·ne·ous
Originating, existing, or happening during the same period of time: the contemporaneous reigns of two monarchs. See Synonyms at contemporary. during transmission. United States v. Turk, 526 F.2d 654, 658 (5th Cir. 1976).
(8.) 18 U.S.C. [sections] 2510(4) (2000).
(9.) 18 U.S.C. [sections] 2510(1) (2000).
(10.) 18 U.S.C. [sections] 2510(2) (2000).
(11.) 18 U.S.C. [sections] 2511(1)(a) (2000).
(12.) Id. (adding "electronic communication" to the definition of intercept). The definition of electronic communication includes the transfer of signals not the storage. Id. The 1986 Act amended the scienter [Latin, Knowingly.] Guilty knowledge that is sufficient to charge a person with the consequences of his or her acts.
The term scienter refers to a state of mind often required to hold a person legally accountable for her acts. requirement from "willful" to "intentional," acknowledging that an individual using a radio scanner might unintentionally tune into a cellular conversation. Carol M. Bast Bast, in Egyptian religion
Bast (băst), ancient Egyptian cat goddess. At first a goddess of the home, she later became known as a goddess of war. The center of her cult was at Bubastis. Her name also appears as Ubast. , What's Bugging You? Inconsistencies and Irrationalities of the Law of Eavesdropping, 47 DEPAUL L. REV. 837, 842-43 (1998).
(13.) 18 U.S.C. [sections] 2510(12) (2000).
(14.) 18 U.S.C. [sections] 2701 (2000).
(15.) 18 U.S.C. [sections] 2511(1)(b)-(d) (2000). The plaintiff must demonstrate that the defendant acted with knowledge that the information used or disclosed came from the intercepted communication and knew or could determine that such interception was prohibited. Id.
(16.) Commonwealth v. Vitello, 327 N.E.2d 819, 834 (1975).
(17.) See generally Stacy L. Mills, He Wouldn't Listen to Me Before, But Now ... : Interspousal Wiretapping and an Analysis of State Wiretapping Statutes, 37 BRANDEIS L.J. 415, 429 (1998) (discussing differences among state wiretapping statutes generally).
(18.) Vitello, 327 N.E.2d at 833-34. By adopting more stringent standards than required under Federal law, states may exclude evidence that would be admissible in Federal courts. Id.
(20.) Gelbard v. United States, 408 U.S. 41, 46 (1972).
(21.) See 18 U.S.C. [sections] 2511(2)(b) (2000). See Allan H. Zerman & Cary J. Mogerman, Wiretapping and Divorce: A Survey and Analysis of the Federal and State Laws Relating to Electronic Eavesdropping and Their Application in Matrimonial mat·ri·mo·ny
n. pl. mat·ri·mo·nies
The act or state of being married; marriage.
[Middle English, from Old French matrimoine, from Latin m Cases, 12 J. AM. ACAD ACAD Academy
ACAD AutoCAD (design/drafting development software by Autodesk)
ACAD Acadia National Park (US National Park Service)
ACAD Atherosclerotic Coronary Artery Disease . MATRIM. LAW. 227, 230-31 (1994) (discussing persons exempted from liability under Title III).
(22.) 18 U.S.C. [sections] 2511(2)(d) (2000). Some states require that both parties to the communication consent or that a third party intercepting the communication obtain the consent of both parties. See Mills, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. note 17, at 429.
(23.) 18 U.S.C. [sections] 2511(2)(d) (2000).
(24.) S. REP. NO. 1097, 90th Cong., 2d Sess., 89 (1968).
(25.) Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir. 1998) (upholding parental vicarious consent on behalf of minor child where parent demonstrates "good faith, objectively reasonable basis" for believing consent was necessary for the child's protection); see also Commonwealth v. Barboza, 763 N.E.2d 547 (Mass. App. Ct. 2002) (discussing Federal courts application of one party consent requirement where consent comes from parent vicariously).
(26.) 18 U.S.C. [sections] 2510(5)(a) (2000).
(27.) The telephone extension exception applies to "(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business...." 18 U.S.C. [sections] 2510(5)(a)(i) (2000).
(28.) Vieux v. Pepe, 184 F.3d 59, 65 (1st Cir. 1999) (stating Supreme Court declined to address the scope of the ordinary course of business exception).
(29.) Id. at 66 (acknowledging scope of ordinary course of business exception resulted in a "significant split in authority").
(30.) See Adams v. City of Battle Creek Battle Creek, city (1990 pop. 53,540), Calhoun co., S Mich., at the confluence of the Kalamazoo and Battle Creek rivers; settled 1831, inc. as a city 1859. It is an agricultural trade center known for its cereals. , 250 F.3d 980, 984 (6th Cir. 2001).
(31.) The statute does not require actual consent on the part of the employee, but rather suggests implicit notice. Id.
(32.) See Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991). The Newcomb Court asserted "there is no persuasive reason why Congress would exempt a business exemption and not one in the home." Id. But see Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir. 1989) (holding husband's taping of wife's phone conversations in the marital home is not protected under Title III).
(33.) See Simpson v. Simpson, 490 F.2d 803, 805 (5th Cir. 1974). But see, e.g., Kempf, 868 F.2d at 973 (holding Title III applicable to interspousal wiretapping); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984); United States v. Jones, 542 F.2d 661, 673 (6th Cir. 1976).
(34.) See Simpson, 490 F.2d at 804.
(35.) 490 F.2d 803 (5th Cir. 1974).
(36.) Simpson, 490 F.2d at 803; see also Anonymous v. Anonymous, 558 F.2d 677 (2d Cir. 1977) (holding Title III not applicable to interspousal wiretapping).
(37.) See Simpson, 490 F.2d at 805.
(38.) See, e.g., Heggy v. Heggy, 944 F.2d 1537, 1541 (10th Cir. 1991) (rejecting the Simpson view); Kempf v. Kempf, 868 F.2d 970 (8th Cir. 1989); Pritchard, 732 F.2d at 372; Jones, 542 F.2d at 661.
(39.) United States v. Jones, 542 F.2d 661, 672 (6th Cir. 1976).
(42.) 18 U.S.C. [sections] 2511(1) (2000).
(43.) Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir. 1991).
(44.) United States v. Jones, 542 F.2d 661, 668 (6th Cir. 1976).
(45.) Id. at n.12 (quoting remarks of Sen. Long Hearings on Invasions of Privacy Before the Subcommittee sub·com·mit·tee
A subordinate committee composed of members appointed from a main committee.
Noun on Admin. Practice and Procedure of the Sen Comm See comms. . on the Judiciary, 89th Cong. 1st Sess., pt. 5 at 2261 (1965-66)).
(46.) Hearings on the Right to Privacy Act of 1967 Before the Subcomm. on Admin Practice and Procedure of the Sen. Comm. on the Judiciary, 90th Cong., 1st Sess., pt. 2 at 413 (1967).
(47.) See Heggy v. Heggy, 944 F.2d 1537, 1541 (10th Cir. 1991) (highlighting Congressional awareness of the circuit split on interspousal wiretapping prior to subsequent Title III amendments).
(48.) 18 U.S.C. [sections] 2511(2000).
(49.) 18 U.S.C. [sections] 2511(4) (2000).
(50.) 18 U.S.C. [sections] 2520 (2000).
(52.) 18 U.S.C. [sections] 2518(10) (2000). Title III permits suppression as a result of an illegal interception, an interception pursuant to a facially invalid court order, or an interception obtained that failed to comply with the order of authorization. See United States v. Ojeda Rios, 495 U.S. 257, 260 n.1 (1990). The federal suppression statute states in relevant part: "Whenever any wire or oral communication has been intercepted, no part of the content of such communication and no evidence derived therefrom there·from
From that place, time, or thing.
Adv. 1. therefrom - from that circumstance or source; "atomic formulas and all compounds thence constructible"- W.V. may be received in evidence in any trial ... before any court ... of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter." 18 U.S.C. [sections] 2515 (2000).
(53.) See Commonwealth v. Barboza, 763 N.E.2d 547, 555 n.6 (Mass. App. Ct. 2002) (noting the split among Federal circuits as to whether suppression is required where recording is made absent state action).
(54.) United States v. Murdock, 63 F.3d 1391, 1404 (6th Cir. 1995).
(55.) See id. The Second and Fifth Circuits have also adopted the "clean hands" exception.
(56.) Id. at 1402.
(58.) See United States v. Vest 813 F.2d 477, 481 (1st Cir. 1987).
(59.) See 18 U.S.C. [sections] 2511(2)(d) (2000).
(60.) See supra notes 44 and 45 and accompanying text.
(61.) See United States v. Jones, 542 F.2d 661, 672 (6th Cir. 1976).
(62.) See id.(acknowledging states have abandoned antiquated doctrine of interspousal tort immunity). Title III is a criminal statute and even in states that support interspousal tort immunity, the doctrine is not applicable to criminal prosecutions. Id.
(63.) See id.
(64.) See Jones, 542 F.2d at 672.
(65.) See supra note 38 and accompanying text.
(66.) 542 F.2d 661 (6th Cir. 1976).
(67.) See United States v. Jones, 542 F.2d 661, 668 (6th Cir. 1976).
(68.) See Simpson v. Simpson, 490 F.2d 803, 805-06 (5th Cir. 1974) (noting Congress did not indicate a "positive intent" to bring domestic conflicts within the operation of Title III).
(69.) See id.
(70.) Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984) (agreeing with Simpson court that domestic matters are best left to the states).
(71.) Kratz v. Kratz, 477 F.Supp. 463, 476 (E.D.Pa. 1979) (noting Title III regulates electronic eavesdropping not marital relations). Title III prohibits one method of obtaining evidence and "there is no more reason to permit husbands and wives to perpetuate per·pet·u·ate
tr.v. per·pet·u·at·ed, per·pet·u·at·ing, per·pet·u·ates
1. To cause to continue indefinitely; make perpetual.
2. these evils upon each other with impunity IMPUNITY. Not being punished for a crime or misdemeanor committed. The impunity of crimes is one of the most prolific sources whence they arise. lmpunitas continuum affectum tribuit delinquenti. 4 Co. 45, a; 5 Co. 109, a. than there is to permit them legally to commit other crimes against each other." Id.
(73.) Pritchard, 732 F.2d at 374.
(74.) See Simpson v. Simpson, 490 F.2d 803, 808-09 (5th Cir. 1974).
(75.) See id. The Simpson Court noted that "third-party intrusion into the marital home, even if instigated by one spouse, is an offense against a spouse's privacy of a much greater magnitude that is personal surveillance by the other spouse." Id. at 809.
(76.) United States v. Jones, 542 F.2d 661, 670 (6th Cir. 1976).
(78.) See id.
(79.) See id.
(80.) See Commonwealth v. Vieux, 671 N.E.2d 989, 992 (Mass. App. Ct. 1996); see also Kempf v. Kempf, 868 F.2d 970 (8th Cir. 1989) (holding no interspousal exception where husband attached tape recorder tape recorder, device for recording information on strips of plastic tape (usually polyester) that are coated with fine particles of a magnetic substance, usually an oxide of iron, cobalt, or chromium. The coating is normally held on the tape with a special binder. to extension phone in the family home). Contra contra
Member of a counterrevolutionary force that sought to overthrow Nicaragua's left-wing Sandinista government. The original contras had been National Guardsmen during the regime of Anastasio Somoza (see Somoza family). The U.S. Scheib v. Grant, 22 F.3d 149 (7th Cir. 1994) (holding no Title III violation where parent attached a recording device to extension phone in family home to obtain information concerning child's welfare).
(81.) See Vieux, 671 N.E.2d at 993 (asserting Title III aimed at deterring the use of sophisticated surveillance equipment to eavesdrop of telephone conversations). "A person who listens in on a residential phone simply does not pose the same threat to telecommunications security as a high-tech snooper." Id.
(82.) See Jones, 542 F.2d at 670.
(83.) See Vieux, 671 N.E.2d at 992.
(84.) See id.
(85.) See id. at 993 (holding no violation of Title III where daughter listened in on conversation between mother and defendant using an extension phone in family home out of concern for her sister).
(86.) See Newcomb v. Ingle, 944 F.2d 1534 (10th Cir. 1991).
(87.) See supra notes 44 and 45 and accompanying text.
(88.) The Scheib court acknowledged that Congress could not have intended to subject parents to criminal and civil penalties for recording their minor child's phone conversations. Scheib v. Grant, 22 F.3d 149, 154 (7th Cir. 1994).
(89.) See Commonwealth v. Barboza, 763 N.E.2d 547, 552 (Mass. App. Ct. 2002).
(90.) See Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir. 1998).
(91.) Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998).
(92.) See id.
(93.) See New Jersey v. Diaz, 706 A.2d 264, 270 (1998). The Diaz Court admitted, under the vicarious consent exception, the audio portion of a secretly made videotape videotape
Magnetic tape used to record visual images and sound, or the recording itself. There are two types of videotape recorders, the transverse (or quad) and the helical. of a nanny nanny
mature goat doe. assaulting and verbally abusing an infant in her care. Id.; see also Barboza, 763 N.E.2d at 552 (recording by parents of minor son's phone conversations not violative vi·o·late
tr.v. vi·o·lat·ed, vi·o·lat·ing, vi·o·lates
1. To break or disregard (a law or promise, for example).
2. To assault (a person) sexually.
3. of Title III where parents believed son was being sexually exploited).
(94.) Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991).
(95.) Newcomb v. Ingle, 944 F.2d 1534 (10th Cir. 1991).
(96.) Id. at 1536.
(97.) See id. While Newcomb involved a custodial parent, later decisions have downplayed the significance of the distinction between custodial and non-custodial parents. In Grant, the Court read Newcomb and Anonymous as not making the parent's custodial status a factor, much less outcome determinative. Scheib v. Grant, 22 F.3d 149, 153 (7th Cir. 1994).
(98.) Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir. 1998).
(99.) Commonwealth v. Barboza, 763 N.E.2d 547 (Mass. App. Ct. 2002).
(100.) Barboza, 763 N.E.2d at 552; see also Pollock, 154 F.3d at 610.
(101.) Vieux v. Pepe, 184 F.3d 59, 67 n.5 (1st Cir. 1999).
(102.) See Newcomb v. Ingle, 944 F.2d 1534 (10th Cir. 1991) (applying telephone extension exception to parent taping line in marital home to record child's conversation).
(103.) See Pollock, 154 F.3d at 610.
(104.) But see Scheib v. Grant, 22 F.3d 149, 153 (7th Cir. 1994). The court found that the non-custodial father's use of an extension phone to record his minor son's phone conversation was permitted where "on more than one occasion" the son "became upset and emotional after speaking with his mother." Id. at 151.
(105.) Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir. 1998).
(106.) See Newcomb, 944 F.2d at 1536 (stating that intercepting family member's phone conversation by use of extension phone in family home is "arguably permitted by a broad reading of 18 U.S.C. [sections] 2510(5)(a)(i) (2000)").
(107.) Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir. 1977).
(108.) See supra note 81 and accompanying text (noting in the context of interspousal wiretapping the degree of sophistication of listening device may be an appropriate inquiry in assessing whether there has been a Title III violation).
(109.) See supra notes 83 and 85 and accompanying text (acknowledging difference between listening on an extension phone and sophisticated recording devices).
(110.) See supra note 102, 104 and 106 and accompanying text.
(111.) See supra note 106 and accompanying text.
(112.) See supra note 81 and accompanying text (noting in the context of interspousal wiretapping the degree of sophistication of listening device may be an appropriate inquiry in assessing whether there has been a Title III violation).
(113.) See supra note 88 and accompanying text.
(114.) See supra note 81 and accompanying text.
(115.) White v. White, 781 A.2d 85 (N.J.Super. 2001).
(116.) Id. In the course of transmission, an electronic communication passes through intermediate and back up protection storage. Transmission is completed when the recipient retrieves the message from intermediate storage. The retrieved message passes to post-transmission storage where it may remain indefinitely in·def·i·nite
Not definite, especially:
a. Unclear; vague.
b. Lacking precise limits: an indefinite leave of absence.
c. . Id.
(121.) White v. White, 781 A.2d 85 (N.J.Super. 2001).
(124.) United States v. Haimowitz, 725 F.2d 1561, 1581 (11th Cir. 1984) (concluding when videotape includes audio portion, Title III applies).
(125.) State v. Diaz, 706 A.2d 264, 267-68 (N.J. Super. Ct. App. Div. 1998) (discussing legislative intent to exclude silent video surveillance from operation of Title III).
(126.) See Haimowitz, 725 F.2d at 1581.
(127.) See Diaz, 706 A.2d at 268 (asserting Title III not intended to apply to recorded silent video surveillance).
(128.) Allan H. Zerman & Cary J. Mogerman, Wiretapping and Divorce: A Survey and Analysis of the Federal and State Laws Relating to Electronic Eavesdropping and Their Application in Matrimonial Cases, 12 J. AM. ACAD. MATRIM. LAW 227, 228 (1994).