FOR EDUCATIONAL USE ONLY
Page 1
18 U.S.C.A. § 2511
Effective: November 25, 2002
United States Code Annotated Currentness
Title 18. Crimes and Criminal Procedure (Refs & Annos)
Part I. Crimes (Refs & Annos)
Chapter 119. Wire and Electronic Communications Interception and Interception of Oral
Communications (Refs & Annos)
§ 2511. Interception and disclosure of wire, oral, or electronic communications
prohibited
(1) Except as otherwise specifically provided in this chapter any person who-(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or
endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use
any electronic, mechanical, or other device to intercept any oral communication when-(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other
like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission of
such communication; or
(iii) such person knows, or has reason to know, that such device or any component thereof
has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business or other
commercial establishment the operations of which affect interstate or foreign commerce; or
(B) obtains or is for the purpose of obtaining information relating to the operations of any
business or other commercial establishment the operations of which affect interstate or
foreign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any
territory or possession of the United States;
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any
wire, oral, or electronic communication, knowing or having reason to know that the
information was obtained through the interception of a wire, oral, or electronic communication
in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic
communication, knowing or having reason to know that the information was obtained through
the interception of a wire, oral, or electronic communication in violation of this subsection; or
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 2
18 U.S.C.A. § 2511
(e) (i) intentionally discloses, or endeavors to disclose, to any other person the contents of any
wire, oral, or electronic communication, intercepted by means authorized by sections
2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516, and 2518 of this chapter, (ii) knowing or
having reason to know that the information was obtained through the interception of such a
communication in connection with a criminal investigation, (iii) having obtained or received
the information in connection with a criminal investigation, and (iv) with intent to improperly
obstruct, impede, or interfere with a duly authorized criminal investigation,
shall be punished as provided in subsection (4) or shall be subject to suit as provided in
subsection (5).
(2)(a)(i) It shall not be unlawful under this chapter for an operator of a switchboard, or an
officer, employee, or agent of a provider of wire or electronic communication service, whose
facilities are used in the transmission of a wire or electronic communication, to intercept,
disclose, or use that communication in the normal course of his employment while engaged in
any activity which is a necessary incident to the rendition of his service or to the protection of the
rights or property of the provider of that service, except that a provider of wire communication
service to the public shall not utilize service observing or random monitoring except for
mechanical or service quality control checks.
(ii) Notwithstanding any other law, providers of wire or electronic communication service, their
officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide
information, facilities, or technical assistance to persons authorized by law to intercept wire, oral,
or electronic communications or to conduct electronic surveillance, as defined in section 101 of
the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or
agents, landlord, custodian, or other specified person, has been provided with-(A) a court order directing such assistance signed by the authorizing judge, or
(B) a certification in writing by a person specified in section 2518(7) of this title or the
Attorney General of the United States that no warrant or court order is required by law, that all
statutory requirements have been met, and that the specified assistance is required,
setting forth the period of time during which the provision of the information, facilities, or
technical assistance is authorized and specifying the information, facilities, or technical
assistance required. No provider of wire or electronic communication service, officer, employee,
or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of
any interception or surveillance or the device used to accomplish the interception or surveillance
with respect to which the person has been furnished a court order or certification under this
chapter, except as may otherwise be required by legal process and then only after prior
notification to the Attorney General or to the principal prosecuting attorney of a State or any
political subdivision of a State, as may be appropriate. Any such disclosure, shall render such
person liable for the civil damages provided for in section 2520. No cause of action shall lie in
any court against any provider of wire or electronic communication service, its officers,
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 3
18 U.S.C.A. § 2511
employees, or agents, landlord, custodian, or other specified person for providing information,
facilities, or assistance in accordance with the terms of a court order, statutory authorization, or
certification under this chapter.
(b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal
Communications Commission, in the normal course of his employment and in discharge of the
monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of title
47 of the United States Code, to intercept a wire or electronic communication, or oral
communication transmitted by radio, or to disclose or use the information thereby obtained.
(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a
wire, oral, or electronic communication, where such person is a party to the communication or
one of the parties to the communication has given prior consent to such interception.
(d) It shall not be unlawful under this chapter for a person not acting under color of law to
intercept 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 unless such communication is intercepted for the purpose of committing any
criminal or tortious act in violation of the Constitution or laws of the United States or of any
State.
(e) Notwithstanding any other provision of this title or section 705 or 706 of the
Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the
United States in the normal course of his official duty to conduct electronic surveillance, as
defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that
Act.
(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the
Communications Act of 1934, shall be deemed to affect the acquisition by the United States
Government of foreign intelligence information from international or foreign communications,
or foreign intelligence activities conducted in accordance with otherwise applicable Federal law
involving a foreign electronic communications system, utilizing a means other than electronic
surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and
procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978
shall be the exclusive means by which electronic surveillance, as defined in section 101 of such
Act, and the interception of domestic wire, oral, and electronic communications may be
conducted.
(g) It shall not be unlawful under this chapter or chapter 121 of this title for any person-(i) to intercept or access an electronic communication made through an electronic
communication system that is configured so that such electronic communication is readily
accessible to the general public;
(ii) to intercept any radio communication which is transmitted-© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 4
18 U.S.C.A. § 2511
(I) by any station for the use of the general public, or that relates to ships, aircraft, vehicles,
or persons in distress;
(II) by any governmental, law enforcement, civil defense, private land mobile, or public
safety communications system, including police and fire, readily accessible to the general
public;
(III) by a station operating on an authorized frequency within the bands allocated to the
amateur, citizens band, or general mobile radio services; or
(IV) by any marine or aeronautical communications system;
(iii) to engage in any conduct which-(I) is prohibited by section 633 of the Communications Act of 1934; or
(II) is excepted from the application of section 705(a) of the Communications Act of 1934 by
section 705(b) of that Act;
(iv) to intercept any wire or electronic communication the transmission of which is causing
harmful interference to any lawfully operating station or consumer electronic equipment, to the
extent necessary to identify the source of such interference; or
(v) for other users of the same frequency to intercept any radio communication made through a
system that utilizes frequencies monitored by individuals engaged in the provision or the use of
such system, if such communication is not scrambled or encrypted.
(h) It shall not be unlawful under this chapter-(i) to use a pen register or a trap and trace device (as those terms are defined for the purposes
of chapter 206 (relating to pen registers and trap and trace devices) of this title); or
(ii) for a provider of electronic communication service to record the fact that a wire or
electronic communication was initiated or completed in order to protect such provider, another
provider furnishing service toward the completion of the wire or electronic communication, or
a user of that service, from fraudulent, unlawful or abusive use of such service.
(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept
the wire or electronic communications of a computer trespasser transmitted to, through, or from
the protected computer, if-(I) the owner or operator of the protected computer authorizes the interception of the computer
trespasser's communications on the protected computer;
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 5
18 U.S.C.A. § 2511
(II) the person acting under color of law is lawfully engaged in an investigation;
(III) the person acting under color of law has reasonable grounds to believe that the contents of
the computer trespasser's communications will be relevant to the investigation; and
(IV) such interception does not acquire communications other than those transmitted to or from
the computer trespasser.
(3)(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an
electronic communication service to the public shall not intentionally divulge the contents of any
communication (other than one to such person or entity, or an agent thereof) while in
transmission on that service to any person or entity other than an addressee or intended recipient
of such communication or an agent of such addressee or intended recipient.
(b) A person or entity providing electronic communication service to the public may divulge the
contents of any such communication-(i) as otherwise authorized in section 2511(2)(a) or 2517 of this title;
(ii) with the lawful consent of the originator or any addressee or intended recipient of such
communication;
(iii) to a person employed or authorized, or whose facilities are used, to forward such
communication to its destination; or
(iv) which were inadvertently obtained by the service provider and which appear to pertain to
the commission of a crime, if such divulgence is made to a law enforcement agency.
(4)(a) Except as provided in paragraph (b) of this subsection or in subsection (5), whoever
violates subsection (1) of this section shall be fined under this title or imprisoned not more than
five years, or both.
(b) Conduct otherwise an offense under this subsection that consists of or relates to the
interception of a satellite transmission that is not encrypted or scrambled and that is transmitted-(i) to a broadcasting station for purposes of retransmission to the general public; or
(ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not
including data transmissions or telephone calls,
is not an offense under this subsection unless the conduct is for the purposes of direct or indirect
commercial advantage or private financial gain.
[(c) Redesignated (b)]
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 6
18 U.S.C.A. § 2511
(5)(a)(i) If the communication is-(A) a private satellite video communication that is not scrambled or encrypted and the conduct
in violation of this chapter is the private viewing of that communication and is not for a
tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private
commercial gain; or
(B) a radio communication that is transmitted on frequencies allocated under subpart D of part
74 of the rules of the Federal Communications Commission that is not scrambled or encrypted
and the conduct in violation of this chapter is not for a tortious or illegal purpose or for
purposes of direct or indirect commercial advantage or private commercial gain,
then the person who engages in such conduct shall be subject to suit by the Federal Government
in a court of competent jurisdiction.
(ii) In an action under this subsection-(A) if the violation of this chapter is a first offense for the person under paragraph (a) of
subsection (4) and such person has not been found liable in a civil action under section 2520 of
this title, the Federal Government shall be entitled to appropriate injunctive relief; and
(B) if the violation of this chapter is a second or subsequent offense under paragraph (a) of
subsection (4) or such person has been found liable in any prior civil action under section 2520,
the person shall be subject to a mandatory $500 civil fine.
(b) The court may use any means within its authority to enforce an injunction issued under
paragraph (ii)(A), and shall impose a civil fine of not less than $500 for each violation of such an
injunction.
CREDIT(S)
(Added Pub.L. 90-351, Title III, § 802, June 19, 1968, 82 Stat. 213, and amended Pub.L. 91358, Title II, § 211(a), July 29, 1970, 84 Stat. 654; Pub.L. 95-511, Title II, § 201(a) to (c), Oct.
25, 1978, 92 Stat. 1796, 1797; Pub.L. 98-549, § 6(b)(2), Oct. 30, 1984, 98 Stat. 2804; Pub.L.
99-508, Title I, § 101(b), (c)(1), (5), (6), (d), (f), 102, Oct. 21, 1986, 100 Stat. 1849 to 1853;
Pub.L. 103-322, Title XXXII, § 320901, Title XXXIII, § 330016(1)(G), Sept. 13, 1994, 108
Stat. 2123, 2147; Pub.L. 103- 414, Title II, § § 202(b), 204, 205, Oct. 25, 1994, 108 Stat. 4290,
4291; Pub.L. 104-294, Title VI, § 604(b)(42), Oct. 11, 1996, 110 Stat. 3509; Pub.L. 107-56,
Title II, § § 204, 217(2), Oct. 26, 2001, 115 Stat. 281, 291; Pub.L. 107-296, Title II, §
225(h)(2), (j)(1), Nov. 25, 2002, 116 Stat. 2158.)
HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 7
18 U.S.C.A. § 2511
1968 Acts. Senate Report No. 1097, see 1968 U.S. Code Cong. and Adm. News, p. 2112.
1978 Acts. Senate Report Nos. 95-604(Parts I and II), 95-701, and House Conference Report No.
95-1720, see 1978 U.S. Code Cong. and Adm. News, p. 3904.
1984 Acts. House Report No. 98-934 and Statements by Legislative Leaders, see 1984 U.S.
Code Cong. and Adm. News, p. 4655.
1986 Acts. Senate Report No. 99-541, see 1986 U.S. Code Cong. and Adm. News, p. 3555.
1994 Acts. House Report Nos. 103-324 and 103-489, and House Conference Report No. 103711, see 1994 U.S. Code Cong. and Adm. News, p. 1801.
House Report No. 103-827, see 1994 U.S. Code Cong. and Adm. News, p. 3489.
1996 Acts. House Report No. 104-788, see 1996 U.S. Code Cong. and Adm. News, p. 4021.
2002 Acts. House Report No. 107-609(Part I) and Statement by President, see 2002 U.S. Code
Cong. and Adm. News, p. 1352.
References in Text
Chapter 5 of title 47 of the United States Code, referred to in par. (2)(b), is chapter 5 of Title 47,
Telegraphs, Telephones, and Radiotelegraphs. Such chapter 5, set out as § 151 et seq. of Title
47, is the Communications Act of 1934.
Chapter 121 or 206 of this title, referred to in par. (2)(f), are 18 U.S.C.A. § 2701 et seq. or 3121
et seq.
Sections 705 and 706 of the Communications Act of 1934, referred to in par. (2)(e), (f), and (g),
are classified to sections 605 and 606 of Title 47, Telegraphs, Telephones, and Radiotelegraphs,
respectively.
The Foreign Intelligence Surveillance Act of 1978, referred to in pars. (2)(e) and (f), is Pub.L.
95-511, Oct. 25, 1978, 92 Stat. 1783, which is classified principally to chapter 36 (section 1801
et seq.) of Title 50, War and National Defense. Section 101 of the Foreign Intelligence
Surveillance Act of 1978, referred to in pars. (2)(a)(ii), (e), and (f), is classified to section 1801
of Title 50. For complete classification of this Act to the Code, see Short Title note set out under
section 1801 of Title 50 and Tables.
Section 633 of the Communications Act of 1934, referred to in par. (2)(g), is classified to section
553 of Title 47, Telegraphs, Telephones, and Radiotelegraphs.
Amendments
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 8
18 U.S.C.A. § 2511
2002 Amendments. Par. (2)(a)(ii). Pub.L. 107-296, § 225(h)(2), inserted ", statutory
authorization," following "in accordance with the terms of a court order" in the undesignated
material at the end of cl. (ii).
Par. (4)(b). Pub.L. 107-296, § 225(j)(1), struck out subpar. (b) and redesignated former subpar.
(c) as (b). Subpar. (b) formerly read: "If the offense is a first offense under paragraph (a) of this
subsection and is not for a tortious or illegal purpose or for purposes of direct or indirect
commercial advantage or private commercial gain, and the wire or electronic communication
with respect to which the offense under paragraph (a) is a radio communication that is not
scrambled, encrypted, or transmitted using modulation techniques the essential parameters of
which have been withheld from the public with the intention of preserving the privacy of such
communication, then-"(i) if the communication is not the radio portion of a cellular telephone communication, a
cordless telephone communication that is transmitted between the cordless telephone handset
and the base unit, a public land mobile radio service communication or a paging service
communication, and the conduct is not that described in subsection (5), the offender shall be
fined under this title or imprisoned not more than one year, or both; and
"(ii) if the communication is the radio portion of a cellular telephone communication, a cordless
telephone communication that is transmitted between the cordless telephone handset and the base
unit, a public land mobile radio service communication or a paging service communication, the
offender shall be fined under this title."
Par. (4)(c). Pub.L. 107-296, § 225(j)(1)(B), redesignated former subpar. (c) as subpar. (b).
2001 Amendments. Par. (2)(f). Pub.L. 107-56, § 204, temporarily struck out "this chapter or
chapter 121" and inserted "this chapter or chapter 121 or 206 of this title" and struck out "wire
and oral" and inserted "wire, oral, and electronic". See Sunset Provisions note set out under this
section.
Par. (2)(i). Pub.L. 107-56, § 217(2), temporarily added subpar. (i). See Sunset Provisions note
set out under this section.
1996 Amendments. Par. (1)(e)(i). Pub.L. 104-294, § 604(b)(42), substituted "sections
2511(2)(a)(ii), 2511(2)(b) to (c), 2511(2)(e), 2516, and 2518 of this chapter" for "sections
2511(2)(A)(ii), 2511(b) to (c), 2511(e), 2516, and 2518 of this subchapter."
1994 Amendments. Par. (1)(e). Pub.L. 103-322, § 320901, added par. (1)(e).
Par. (2)(a)(i). Pub.L. 103-414, § 205, added reference to the transmission of an electronic
communication.
Par. (4)(b). Pub.L. 103-414, § 204, added provisions relating to radio communications which
are not transmitted using modulation techniques whose essential parameters have been withheld
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 9
18 U.S.C.A. § 2511
from the public.
Par. (4)(b)(i). Pub.L. 103-414, § 202(b)(1), added provision relating to a cordless telephone
communication.
Par. (4)(b)(ii). Pub.L. 103-414, § 202(b)(2), added provision relating to a cordless telephone
communication.
Pub.L. 103-322, § 330016(1)(G), substituted "under this title" for "not more than $500".
1986 Amendments. Catchline. Pub.L. 99-508, § 101(c)(1)(A), substituted "wire, oral, or
electronic communications" for "wire or oral communications".
Par. (1). Pub.L. 99-508, § 101(d)(1), substituted "shall be punished as provided in subsection
(4) or shall be subject to suit as provided in subsection (5)" for "shall be fined not more than
$10,000 or imprisoned not more than five years, or both".
Par. (1)(a). Pub.L. 99-508, § 101(c)(1)(A), substituted "wire, oral, or electronic communication"
for "wire or oral communication".
Par. (1)(a). Pub.L. 99-508, § 101(f)(1), substituted "intentionally" for "willfully".
Par. (1)(b). Pub.L. 99-508, § 101(f)(1), substituted "intentionally" for "willfully".
Par. (1)(c). Pub.L. 99-508, § 101(c)(1)(A), substituted "wire, oral, or electronic communication"
for "wire or oral communication".
Par. (1)(c). Pub.L. 99-508, § 101(f)(1), substituted "intentionally" for "willfully".
Par. (1)(d).
Pub.L. 99-508, §
101(c)(1)(A), substituted "wire, oral, or electronic
communication" for "wire or oral communication".
Par. (1)(d). Pub.L. 99-508, § 101(f)(1), substituted "intentionally" for "willfully".
Par. (2)(a)(i). Pub.L. 99-508, § 101(c)(5), substituted "agent of a provider of wire or electronic
communication service" for "agent of any communication common carrier" and "property of the
provider of that service, except that a provider of wire communication service to the public shall"
for "property of the carrier of such communication: Provided, that said communication common
carriers shall".
Par. (2)(a)(ii). Pub.L. 99-508, § 101(b)(1), substituted "Any such disclosure shall" for "Any
violation of this subparagraph by a communication common carrier or an officer, employee, or
agent thereof, shall", "render such person liable" for "render the carrier liable", and "the terms of
a court order or certification under this chapter" for "the terms of an order or certification under
this subparagraph".
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 10
18 U.S.C.A. § 2511
Par. (2)(a)(ii). Pub.L. 99-508, § 101(c)(6), substituted "providers of wire or electronic
communication service" for "communication common carriers", "provider of wire or electronic
communication service" for "communication common carrier" wherever appearing in text, and
"if such provider" for "if the common carrier".
Par. (2)(a)(ii). Pub.L. 99-508, § 101(c)(1)(A), substituted "wire, oral, or electronic
communications" for "wire or oral communications".
Par. (2)(b). Pub.L. 99-508, § 101(c)(1)(B), substituted "wire or electronic communication" for
"wire communication".
Par. (2)(c). Pub.L. 99-508, § 101(c)(1)(A), substituted "wire, oral, or electronic communication"
for "wire or oral communication".
Par. (2)(d). Pub.L. 99-508, § 101(b)(2), substituted "of any State." for "of any State or for the
purpose of committing any other injurious act.".
Par. (2)(d).
Pub.L. 99-508, §
101(c)(1)(A), substituted "wire, oral, or electronic
communication" for "wire or oral communication".
Par. (2)(f). Pub.L. 99-508, § 101(b)(3), substituted "contained in this chapter or chapter 121, or
section" for "contained in this chapter, or section", "procedures in this chapter or chapter 121 and
the" for "procedures in this chapter and the", and "foreign communications, or foreign
intelligence activities conducted in accordance with otherwise applicable Federal law involving a
foreign electronic communications system, utilizing a means" for "foreign communications by a
means".
Par. (2)(f).
Pub.L. 99-508, §
101(c)(1)(A), substituted "wire, oral, or electronic
communications" for "wire or oral communications".
Par. (2)(g), (h). Pub.L. 99-508, § 101(b)(4), added subpars. (g) and (h).
Par. (3). Pub.L. 99-508, § 102, added par. (3).
Pars. (4), (5). Pub.L. 99-508, § 101(d)(2), added pars. (4) and (5).
1984 Amendments. Par. (2)(e). Pub.L. 98-549, § 6(b)(2)(A), substituted "section 705 or 706"
for "section 605 or 606".
Par. (2)(f). Pub.L. 98-549, § 6(b)(2)(B), substituted "section 705" for "section 605".
1978 Amendments. Par. (2)(a)(ii). Pub.L. 95-511, § 201(a), substituted provisions authorizing
communication common carriers etc., to provide information to designated persons, prohibiting
disclosure of intercepted information, and rendering violators civilly liable for provision
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 11
18 U.S.C.A. § 2511
exempting communication common carriers from criminality for giving information to
designated officers.
Par. (2)(e). Pub.L. 95-511, § 201(b), added par. (2)(e).
Par. (2)(f). Pub.L. 95-511, § 201(b), added par. (2)(f).
Par. (3). Pub.L. 95-511, § 201(c), struck out par. (3) which provided that nothing in this chapter
or section 605 of Title 47 limited the President's constitutional power to gather necessary
intelligence to protect the national security and stated the conditions necessary for the reception
into evidence and disclosure of communications intercepted by the President.
1970 Amendments. Subsec. (2)(a)(i). Pub.L. 91-358, § 211(a)(1), designated existing provisions
as subsec. (2)(a)(i).
Subsec. (2)(a)(ii). Pub.L. 91-358, § 211(a)(2), added subsec. (2)(a)(ii).
Effective and Applicability Provisions
2002 Acts. Amendment to this section by Pub.L. 107-296 effective 60 days after Nov. 25, 2002,
see Pub.L. 107-296, § 4, set out as a note under 6 U.S.C.A. § 101.
1996 Acts. Amendment by section 604 of Pub.L. 104-294 effective Sept. 13, 1994, see section
604(d) of Pub.L. 104-294, set out as a note under section 13 of this title.
1986 Acts. Except as otherwise provided in section 111 of Pub.L. 99-508, amendment by Pub.L.
99-508 effective 90 days after Oct. 21, 1986, see section 111 of Pub.L. 99-508 set out as a note
under section 2510 of this title.
1984 Acts. Amendment by Pub.L. 98-549 to take effect 60 days after Oct. 30, 1984, except
where otherwise expressly provided, see section 9(a) of Pub.L. 98-549, set out as a note under
section 521 of Title 47, Telegraphs, Telephones and Radiotelegraphs.
1978 Acts. Amendment by Pub.L. 95-511 effective Oct. 25, 1978, except as specifically
provided, see section 301 of Pub.L. 95-511, set out as an Effective Date note under section 1801
of Title 50, War and National Defense.
1970 Acts. Section 901(a) of Pub.L. 91-358 provided in part that the amendment of this section
by Pub.L. 91-358 shall take effect on the first day of the seventh calendar month which begins
after July 29, 1970.
Sunset Provisions
Provision that amendments by Pub.L. 107-56, Title II, Oct. 26, 2001, 115 Stat. 278, with certain
exclusions, shall cease to have effect on March 10, 2006, except with respect to any particular
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 12
18 U.S.C.A. § 2511
foreign intelligence investigation that began before that date, or with respect to any particular
offense or potential offense that began or occurred before that, such provisions to continue in
effect, was repealed by Pub.L. 109-177, § 102(a), see Pub.L. 107-56, § 224, as amended, set out
as a note under 18 U.S.C.A. § 2510.
FEDERAL SENTENCING GUIDELINES
See Federal Sentencing Guidelines § § 2B5.3, 2H3.1, 18 USCA.
LAW REVIEW COMMENTARIES
Attorneys, tape recorders and perfidy. Stanley S. Arkin, 211 N.Y.L.J. 3 (April 14, 1994).
Avoiding prosecutions. Thomas F. Liotti, 67 N.Y.St.B.J. 49 (Feb. 1995).
Bartnicki v. Vopper. Richard D. Shoop, 17 Berkeley Tech. L.J. 449 (2002).
Bartnicki V. Vopper: A public concern exception for the press and its disclosure of
unlawfully obtained information. Laura E. Zirkle, 11 Geo.Mason L.Rev. 441 (Winter,
2002).
Can parents vicariously consent to recording a telephone conversation on behalf of a minor
child?: An examination of the vicarious consent exception under Title III of the Omnibus
Crime Control and Safe Streets Act of 1968. Debra Bogosavljevic, 2000 U.Ill.L.Rev. 321.
Commercial Eavesdropping: A catch 22. Kirk W. Munroe, 63 Fla.B.J. 11 (Mar. 1989).
Communications assistance for Law Enforcement Act and protection of cordless telephone
communications: Use of technology as a guide to privacy. 44 Clev.St.L.Rev. 99 (1996).
Computer security and privacy: The third wave of property law. Leslie G. Berkowitz, 33FEB Colo.Law. 57 (2004).
Cordless telephones and the Fourth Amendment. 72 Ky.L.J. 1167.
Domestic relations and eighth circuit court of appeals. Robert E. Oliphant and Susan
Elizabeth Oliphant, 16 Wm.Mitchell L.Rev. 645 (1990).
Eavesdropping reform: The legality of roving surveillance. Michael Goldsmith, 1987
U.Ill.L.Rev. 401 (1987).
E-mail and voice mail: Employee privacy and the federal wiretap statute. 44 Am.U.L.Rev.
219 (1994).
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 13
18 U.S.C.A. § 2511
In God we trust; all others who enter this store are subject to surveillance.
Fed.Comm.L.J. 187 (1995).
48
Interspousal wiretapping: should state law or federal statute govern? Note, 10 Hamline
L.Rev. 255 (1987).
Is your spouse taping your telephone calls?: Title III and interspousal electronic
surveillance. Scott J. Glick, 41 Cath.U.L.Rev. 845 (1992).
Peek and spy: A proposal for federal regulation of electronic monitoring in the work place.
70 Wash.U.L.Q. 853 (1992).
Privacy and speech. Paul Gewirtz, 2001 Sup. Ct. Rev. 139 (2001).
Private matters in private employment. Thomas J. Barnes and Gregory M. Palmer, 1986
Det.C.L.Rev. 825 (1986).
Promoting the progress of science and the useful arts in the digital domain: Copyright,
computer bulletin boards, and liability for infringement by others. 45 Emory L.J. 1035
(1996).
Reasonable expectations in electronic communications: A critical perspective on the
Electronic Communications Privacy Act. Deirdre K. Mulligan, 72 Geo. Wash. L. Rev.
1557 (2004).
Reconstructing electronic surveillance law. Daniel J. Solove, 72 Geo. Wash. L. Rev. 1264
(2004).
Should it take a thief?: Rethinking the admission of illegally obtained evidence in civil
cases. David H. Taylor, 22 Rev. Litig. 625 (2003).
Spy vs. spouse: Regulating surveillance software on shared marital computers. Note, 105
Colum. L. Rev. 2097 (2005).
The Fourth Amendment and the Wiretap Act fail to protect against random ISP monitoring
of e-mails for the purpose of assisting law enforcement. Comment, 22 J. Marshall J.
Computer & Info. L. 493 (2004).
Using modern technology to communicate with clients: Proceed with caution and common
sense. Mary Frances Lapidus, 34 Hous.Law. 39 (Sep./Oct. 1996).
Walls (and wires) have ears: The background and first ten years of the Foreign Intelligence
Surveillance Act of 1978. Americo R. Cinquegrana, 137 U.Pa.L.Rev. 793 (1989).
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 14
18 U.S.C.A. § 2511
What victims of computer crime should know and do. Stephen Fishbein, 210 N.Y.L.J. 1
(Nov. 12, 1993).
Wiretapping in Nebraska. Richard E. Shugrue. 19 Creighton L.Rev. 194 (1985-1986).
LIBRARY REFERENCES
American Digest System
Telecommunications
491, 493, 494.
Key Number System Topic No. 372.
Corpus Juris Secundum
CJS Criminal Law § 793, Wiretapping Or Other Interception.
CJS Grand Juries § 172, Illegally Obtained Evidence.
CJS Telecommunications § 245, Communications Covered.
CJS Telecommunications § 247, What Constitutes Interception.
CJS Telecommunications § 250, Consent By Party To Communication.
CJS Telecommunications § 251, Consent By Party To Communication -- Interception Under
Color Of Law.
CJS Telecommunications § 256, Actions In General.
RESEARCH REFERENCES
ALR Library
7 ALR, Fed. 2nd Series 1, Validity, Construction, and Application of Federal Enactments
Proscribing Obscenity and Child Pornography or Access Thereto on the Internet.
174 ALR, Fed. 101, Validity, Construction, and Application of Computer Fraud and Abuse Act
(18 U.S.C.A. § 1030).
164 ALR, Fed. 139, Construction and Application of Provision of Omnibus Crime Control and
Safe Streets Act of 1968 (18 U.S.C.A. § 2520) Authorizing Civil Cause of Action by Person
Whose Wire, Oral, or Electronic Communication Is...
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 15
18 U.S.C.A. § 2511
159 ALR, Fed. 153, Waiver of Evidentiary Privilege by Inadvertent Disclosure--Federal Law.
139 ALR, Fed. 517, Applicability, in Civil Action, of Provisions of Omnibus Crime Control and
Safe Streets Act of 1968, Prohibiting Interception of Communications (18 U.S.C.A. § 2511(1)),
to Interceptions by Spouse, or Spouse's Agent...
138 ALR, Fed. 393, What Matters Not Contained in Pleadings May be Considered in Ruling on
a Motion to Dismiss Under Rule 12(B)(6) of the Federal Rules of Civil Procedure or Motion for
Judgment on the Pleadings Under Rule 12(C) Without...
129 ALR, Fed. 549, What Constitutes "Device Which is Primarily Useful for the Surreptitious
Interception of Wire, Oral, or Electronic Communications," Under 18 U.S.C.A. § 2512(1)(B),
Prohibiting Manufacture, Possession, Assembly, Sale...
122 ALR, Fed. 597, Construction and Application of 18 U.S.C.A. § 2511(1)(A) and (B),
Providing Criminal Penalty for Intercepting, Endeavoring to Intercept, or Procuring Another to
Intercept Wire, Oral, or Electronic...
103 ALR, Fed. 422, Propriety, Under 18 U.S.C.A. § 2517(5), of Interception or Use of
Communications Relating to Federal Offenses Which Were Not Specified in Original Wiretap
Order.
67 ALR, Fed. 429, Interception of Telecommunication by or With Consent of Party as
Exception, Under 18 U.S.C.A. § 2511(2)(C) and (D), to Federal Proscription of Such
Interceptions.
61 ALR, Fed. 825, Propriety of Monitoring of Telephone Calls to or from Prison Inmates Under
Title III of Omnibus Crime Control and Safe Streets Act (18 U.S.C.A. § § 2510 et seq.)
Prohibiting Judicially Unauthorized Interception Of...
58 ALR, Fed. 594, Application to Extension Telephones of Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 (18 U.S.C.A. § § 2510 et seq.), Pertaining to Interception
of Wire Communications.
47 ALR, Fed. 439, What Statutes Specifically Exempt Agency Records from Disclosure, Under
5 U.S.C.A. § 552(B)(3).
39 ALR, Fed. 646, Construction and Application of "National Security" Exception to Fourth
Amendment Search Warrant Requirement.
32 ALR, Fed. 155, Validity, Under Fourth Amendment, of Warrantless Search of Parolee or His
Property by Parole Officer.
34 ALR, Fed. 278, Federal Criminal Prosecutions Under Wire Fraud Statute (18 U.S.C.A. §
1343) for Use of "Blue Box" or Similar Device Permitting User to Make Long-Distance
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 16
18 U.S.C.A. § 2511
Telephone Calls Not Reflected on Company's Billing...
35 ALR, Fed. 727, Construction and Application of Provision of Rule 51 of Federal Rules of
Civil Procedure Requiring Party Objecting to Instructions or Failure to Give Instruction to Jury,
to State "Distinctly the Matter to Which He..."
84 ALR 5th 169, Liability of Internet Service Provider for Internet or E-Mail Defamation.
76 ALR 4th 536, Search and Seizure of Telephone Company Records Pertaining to Subscriber as
Violation of Subscriber's Constitutional Rights.
43 ALR 4th 991, Criminal Liability for Unauthorized Interference With or Reception of Radio or
Television Transmission.
44 ALR 4th 841, Propriety of Governmental Eavesdropping on Communications Between
Accused and His Attorney.
49 ALR 4th 430, Eavesdropping on Extension Telephone as Invasion of Privacy.
27 ALR 4th 449, Permissible Warrantless Surveillance, Under State Communications
Interception Statute, by State or Local Law Enforcement Officer or One Acting in Concert With
Officer.
78 ALR 3rd 449, Criminal Prosecutions for Use of "Blue Box" or Similar Device Permitting
User to Make Long-Distance Telephone Calls Without Incurring Charges.
43 ALR 3rd 385, Comment Note.--"Fruit of the Poisonous Tree" Doctrine Excluding Evidence
Derived from Information Gained in Illegal Search.
36 ALR 3rd 553, Admissibility, in Criminal Case, of Evidence Obtained by Search by Private
Individual.
11 ALR 3rd 1296, Eavesdropping as Violating Right of Privacy.
15 ALR 3rd 586, Defaulting Defendant's Right to Notice and Hearing as to Determination of
Amount of Damages.
9 ALR 3rd 423, What Constitutes an "Interception" of a Telephone or Similar Communication
Forbidden by the Federal Communications Act (47 U.S.C.A. § 605) or Similar State Statutes.
74 ALR 2nd 855, Validity, Construction, and Effect of State Legislation Making Wiretapping a
Criminal Offense.
58 ALR 2nd 1024, Admissibility of Sound Recordings in Evidence.
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 17
18 U.S.C.A. § 2511
175 ALR 438, Jurisdiction of Equity to Protect Personal Rights; Modern View.
134 ALR 614, Admissibility of Evidence Obtained by Government or Other Public Officer by
Intercepting Letter or Telegraph or Telephone Message.
105 ALR 326, Admissibility of Telephone Conversations in Evidence.
73 ALR 1260, Mistake as to Law of Another State or Country as One of Law or of Fact.
48 ALR 746, What Constitutes Offense of Obstructing or Resisting Officer.
Encyclopedias
2 Am. Jur. Proof of Facts 2d 545, Reliability of Scientific Devices-- Telephone Calling Line
Identification.
33 Am. Jur. Proof of Facts 3d 303, Proving Child Sexual Abuse in Custody or Visitation
Dispute.
49 Am. Jur. Proof of Facts 3d 277, Proof of Adultery as Grounds for Dissolution of Marriage.
67 Am. Jur. Proof of Facts 3d 249, Proof of Liability for Violation of Privacy of Internet User,
by Cookies or Other Means.
5 Am. Jur. Trials 331, Excluding Illegally Obtained Evidence.
15 Am. Jur. Trials 555, Police Misconduct Litigation--Plaintiff's Remedies.
49 Am. Jur. Trials 281, Liability for Mishandled Computer Information.
62 Am. Jur. Trials 547, Obtaining Damages in Federal Court for State and Local Police
Misconduct.
Am. Jur. 2d Administrative Law § 348, Illegally Obtained Evidence.
Am. Jur. 2d Constitutional Law § 459, Scope of Constitutional Guarantees of Free Speech and
Press; Generally -- Content-Neutral Regulations.
Am. Jur. 2d Evidence § 613, Interception by Private Party; Interspousal Interception.
Am. Jur. 2d Searches and Seizures § 328, Federal Statutes; Federal Wiretap Act.
Am. Jur. 2d Searches and Seizures § 349, Telephone Company Wiretaps.
Am. Jur. 2d Searches and Seizures § 358, Who May Consent -- Informers.
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 18
18 U.S.C.A. § 2511
Am. Jur. 2d Searches and Seizures § 440, Telephone Extension Exception; Monitoring by
Family Members.
Am. Jur. 2d Searches and Seizures § 462, Persons Who May Commit Offense.
Am. Jur. 2d Searches and Seizures § 463, Generally; Need for Willfulness; Intent.
Am. Jur. 2d Searches and Seizures § 466, Disclosure of Communication.
Am. Jur. 2d Telecommunications § 190, Unauthorized Reception of Cable Service.
Forms
Federal Procedural Forms § 20:577, Allegation -- in Motion to Suppress Evidence Seized
Through Wiretap -- Involuntary Consent [18 U.S.C.A. § 2518(10)(A); Fed. R. Crim. P. 12,
41(H)].
Federal Procedural Forms § 62:392.50, Complaint -- by Subscriber -- Against Internet Service
Provider -- Termination of Service -- Violation of Electronic Communications Privacy Act [18
U.S.C.A. § § 2510 to 2712; 28 U.S.C.A. § 1331, 1332,.
Am. Jur. Pl. & Pr. Forms Privacy § 58, Complaint in Federal Court -- Violation of Federal
Wiretapping Act -- Violation of State Wiretapping Statute -- Invasion of Privacy.
Am. Jur. Pl. & Pr. Forms Telecommunications § 71, Complaint in Federal Court -- by
Television Cable Company -- Against Private Individual -- for Injunctive Relief and Damages -for "Stealing" Cable Television Signals.
Am. Jur. Pl. & Pr. Forms Telecommunications § 72, Temporary Restraining Order -Restraining and Enjoining Defendant from "Stealing" Plaintiff's Cable Television Signals.
Am. Jur. Pl. & Pr. Forms Telecommunications § 110, Complaint in Federal Court -- by
Subscriber -- Against Internet Service Provider -- Breach of Contract -- Termination of Service -Violation of Electronic Communications Privacy Act.
Am. Jur. Pl. & Pr. Forms Telecommunications § 135, Complaint, Petition or Declaration -- by
Telephone Company Employee -- to Recover Damages for Unlawful Interception and Disclosure
of Telephone Call.
Am. Jur. Pl. & Pr. Forms Telecommunications § 138, Answer -- No Unlawful Interception and
Disclosure of Communication -- Interception was Statutorily Authorized to Protect Defendant's
Rights.
Am. Jur. Pl. & Pr. Forms Telecommunications § 139, Answer -- Defense -- No Unlawful
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 19
18 U.S.C.A. § 2511
Interception and Disclosure of Communication.
Treatises and Practice Aids
Employment Practices Manual § 6:29, Electronic Communications -- Overview.
Federal Evidence § 527, Telephone Conversations -- (C) Other Means of Authentication.
Federal Information Disclosure § 13:13, Specific Withholding Statutes -- Other Statutes.
Federal Procedure, Lawyers Edition §
Authorized.
22:250, Offenses for Which Interception May be
Federal Procedure, Lawyers Edition § 22:300, Disclosure by Any Person in Federal or State
Proceedings.
Federal Procedure, Lawyers Edition §
Communications in Electronic Storage.
22:322, Obtaining Contents of Wire or Electronic
Federal Procedure, Lawyers Edition § 33:706, Title III of the Omnibus Crime Control and Safe
Streets Act.
Federal Procedure, Lawyers Edition §
Interception.
33:711, Interception by Private Party; Interspousal
Federal Procedure, Lawyers Edition § 33:712, Consent.
Federal Procedure, Lawyers Edition §
2518(10)(a).
33:714, Motion to Suppress Under 18 U.S.C.A. §
Federal Procedure, Lawyers Edition § 72:1034, Enforcing Prohibition Against Private
Interception of Satellite Video or Radio Communication.
Federal Procedure, Lawyers Edition § 72:1056, Indictment.
Wright & Miller: Federal Prac. & Proc. §
Background.
665, Wiretapping and Eavesdropping-The
Wright & Miller: Federal Prac. & Proc. § 665.1, the 1968 Statute.
Wright & Miller: Federal Prac. & Proc. § 665.2, Foreign Intelligence Surveillance Act and
Illegal Combatants.
NOTES OF DECISIONS
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
18 U.S.C.A. § 2511
Admissibility of evidence 60
Attorney-client privilege 53
Authorization for interception, exceptions 41
Cellular providers 38
Color of law 51
Commercial satellite programming 15
Consent, exceptions 43
Constitutionality 1
Construction 3
Construction With Fourth Amendment 5
Construction with other laws 4
Crimes, violations 31
Defenses 39
Descramblers 17
Determination of consent, exceptions 44
Devices 16
Disclosure of information 36
Discovery 58
Dismissal of prosecution, violations 32
Electronic communications 12
Elements of offense 24
Enforcement 10
Exceptions 40-50
Exceptions - Generally 40
Exceptions - Authorization for interception 41
Exceptions - Consent 43
Exceptions - Determination of consent 44
Exceptions - Extension phones 49
Exceptions - Implied consent 46
Exceptions - Parental interception 48
Exceptions - Party to communication 42
Exceptions - Service providers 50
Exceptions - Vicarious consent 47
Exceptions - Voluntariness of consent 45
Executive powers 11
Extension phones, exceptions 49
Implied consent, exceptions 46
Indictments 57
Injunction, violations 33
Intent 27
Interstate commerce 25
Knowledge 26
Overhearing of oral communication 21
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 20
FOR EDUCATIONAL USE ONLY
Page 21
18 U.S.C.A. § 2511
Parental interception, exceptions 48
Party to communication, exceptions 42
Power of Congress 2
Prison monitoring 52
Privacy expectation 18
Private interception 20
Procuring others 37
Providers of service, exceptions 50
Purpose 8
Purpose of interception or disclosure 28
Quashing of subpoena, violations 34
Radio transmissions 14
Retroactive effect 6
Scope of monitoring 19
Scope of review 63
Scope of section 9
Searches and seizures 59
Service providers, exceptions 50
Spousal immunity 54
Standing to maintain action 55
State laws 7
Summary judgment 62
Suppression of evidence, violations 35
Use or disclosure of information 36
Venue 56
Vicarious consent, exceptions 47
Viewing of E-mail 22
Violations 30-35
Violations - Generally 30
Violations - Crimes 31
Violations - Dismissal of prosecution 32
Violations - Injunction 33
Violations - Quashing of subpoena 34
Violations - Suppression of evidence 35
Voice mail recording 23
Voluntariness of consent, exceptions 45
Weight and sufficiency of evidence 61
While in transmission 29
Wire communications 13
1. Constitutionality
Individual who lawfully received tape of cellular phone conversation concerning matter of public
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 22
18 U.S.C.A. § 2511
concern from unknown third party who had recorded it in violation of federal and Pennsylvania
wiretap acts, and media outlet which broadcast tape after lawfully receiving it from that
individual, could not be held liable under acts' prohibition of intentional disclosure of contents of
illegally intercepted communications; First Amendment interest in publishing matters of public
importance outweighed conversants' privacy rights, given fact that individual and media outlet
had played no part in illegal interception. Bartnicki v. Vopper, U.S.Pa.2001, 121 S.Ct. 1753, 532
U.S. 514, 149 L.Ed.2d 787. Constitutional Law
90.1(9); Telecommunications
1441
Congressman did not lawfully obtain tape of illegally intercepted telephone conversation from
third parties, and thus, was not entitled to First Amendment free speech protection from liability
under wiretapping statute for disclosure of tape's contents to media; even if Congressman did not
read note from third parties purportedly attached to envelope containing tape, which explained
that third parties used police scanner to intercept the conversation, Congressman did not deny
that third parties told him that they used scanner to intercept the conversation, or that he told
media that he knew that the third parties so intercepted the conversation at the time he
voluntarily accepted the tape. Boehner v. McDermott, C.A.D.C.2006, 441 F.3d 1010, 370
U.S.App.D.C. 205. Telecommunications
1441
Actions of radio stations and others, including individual who conveyed recording to media, in
disclosing the contents of the cellular phone conversation intercepted by third party were not
properly considered "expressive conduct" rather than "speech," so as to support application of
intermediate rather than strict scrutiny to determination of whether imposing civil liability under
federal and Pennsylvania wiretapping acts would violate the First Amendment. Bartnicki v.
Vopper, C.A.3 (Pa.) 1999, 200 F.3d 109, certiorari granted 120 S.Ct. 2716, 530 U.S. 1260, 147
L.Ed.2d 981, affirmed 121 S.Ct. 1753, 532 U.S. 514, 149 L.Ed.2d 787. Constitutional Law
90.1(9)
Section of the Electronic Communications Privacy Act which forbids the disclosure of the
illegally intercepted communication, and the corresponding Florida statute, did not abridge
freedom of speech as applied to congressman who delivered to newspapers tape recording of
cellular telephone conversation he had received from persons who illegally intercepted the
conversation, though the conversation related to matters of public concern; statutory scheme
served substantial governmental interest in preserving personal privacy, it revealed no
governmental interest in distinguishing between types of speech based on content and promoted
rather than infringed freedom of speech, and whatever incidental restriction on speech it imposed
was no greater than was essential to the furtherance of that interest. Boehner v. McDermott,
C.A.D.C.1999, 191 F.3d 463, 338 U.S.App.D.C. 109, vacated 121 S.Ct. 2190, 532 U.S. 1050,
149 L.Ed.2d 1022, on remand 22 Fed.Appx. 16, 2001 WL 1699420, rehearing and rehearing en
banc denied. Constitutional Law
90.1(9); Telecommunications
1430
Statute prohibiting tortious or criminal interception and disclosure of wire or oral
communications in no way provides for prior restraint of press in their exercise of their First
Amendment rights, even if press's conduct clearly violates statute. In re King World
Productions, Inc., C.A.6 (Mich.) 1990, 898 F.2d 56. Constitutional Law
90.1(8);
Constitutional Law
90.1(9); Telecommunications
1428
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 23
18 U.S.C.A. § 2511
Exception to wiretap statute, prohibiting nonconsensual recording of communications for
"purpose of committing any * * * injurious act" was unconstitutionally vague as applied to news
media. Boddie v. American Broadcasting Companies, Inc., C.A.6 (Ohio) 1989, 881 F.2d 267,
rehearing denied, certiorari denied 110 S.Ct. 737, 493 U.S. 1028, 107 L.Ed.2d 755.
Telecommunications
1430
Provision of subsec. (2)(d) of this section that it is not unlawful for a person not acting under
color of law to intercept a communication if the person is a party to the communication unless
the communication is intercepted for the purpose of committing criminal or tortious acts or other
injurious act is not unconstitutionally vague; the terms "criminal," "tortious," and "injurious act,"
are not so vague that men of common intelligence must guess at their meaning. U. S. v. Edelson,
C.A.7 (Ill.) 1978, 581 F.2d 1290, certiorari denied 99 S.Ct. 1216, 440 U.S. 908, 59 L.Ed.2d 456.
Telecommunications
1430
As no one has a constitutionally protected expectation that the person to whom he voluntarily
reveals incriminating information will keep it secret, the consensual interceptions permitted
under this chapter do not offend U.S.C.A. Const. Amend. 4. U.S. v. Hodge, C.A.6 (Mich.) 1976,
539 F.2d 898, certiorari denied 97 S.Ct. 1100, 429 U.S. 1091, 51 L.Ed.2d 536.
Telecommunications
1440
This section providing that it is not unlawful for operator of a switchboard or an agent of a
communications common carrier to intercept or use communications in normal course of
employment while engaged in any activity necessary to the rendition of service or to protect
rights or property of the carrier is not unconstitutional. U. S. v. Goldstein, C.A.9 (Cal.) 1976,
532 F.2d 1305, certiorari denied 97 S.Ct. 384, 429 U.S. 960, 50 L.Ed.2d 327.
Telecommunications
1430
This section, making it lawful for a person acting under color of law to intercept a wire or oral
communication where such person is a party to the communication or one of parties to the
communication has given prior consent to such interception, does not offend U.S.C.A. Const.
Amends. 4, 5, for one has no constitutionally protected expectation that the person to whom he
voluntarily reveals incriminating information will keep it secret. U. S. v. Quintana, C.A.7 (Ill.)
1975, 508 F.2d 867. Criminal Law
393(1); Telecommunications
1440
Satellite television service provider was not entitled to summary judgment on its unauthorized
interception claims against alleged purchaser of pirate access device based solely on adverse
inferences potentially arising from alleged purchaser's assertion of Fifth Amendment privilege
against self-incrimination; provider had alternate means of proving its claims. DirecTV, Inc. v.
Lovejoy, D.Me.2005, 366 F.Supp.2d 132. Federal Civil Procedure
2519; Witnesses
309
Even though federal wiretapping statute did not specifically prohibit the receipt of illegally
obtained information, Congressman did not lawfully obtain tape of illegally intercepted
telephone conversation from third parties where he knew of the illegality of the third parties'
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 24
18 U.S.C.A. § 2511
disclosure at the time he voluntarily accepted the tape as result of an accompanying cover letter
explaining how third parties had made the recording; thus, First Amendment did not shield
Congressman from liability under wiretapping statute for disclosure of tape's contents to media.
Boehner v. McDermott, D.D.C.2004, 332 F.Supp.2d 149, affirmed 441 F.3d 1010, 370
U.S.App.D.C. 205. Constitutional Law
90.1(9); Telecommunications
1441
No violation of Title III of Omnibus Crime Control and Safe Streets Act or the Fourth
Amendment results where a law enforcement officer or a government informant participates in a
conversation and records a conversation without a warrant. U.S. v. West, D.Del.2004, 312
F.Supp.2d 605. Telecommunications
1440
Newspaper publisher did not have qualified First Amendment right of public access to sealed
wiretap materials and search warrant affidavits following the return of indictments but prior to a
substantive challenge to those materials; right of access could not attach before hearing on
critical stage in the proceeding, such as suppression hearing, preliminary hearing, or challenge
under wiretap statute. U.S. v. Inzunza, S.D.Cal.2004, 303 F.Supp.2d 1041. Constitutional Law
90.1(3); Records
32
This section prohibiting interception of a wire or oral communication is not unconstitutional as
violative of equal protection because it allows the interception of a wire or oral communication
by employees of communication carrier for certain purposes. U. S. v. Esenberg, E.D.Wis.1976,
416 F.Supp. 835. Constitutional Law
225.1; Telecommunications
1430
United States Attorney General's authorization of wiretap, under authority granted by the
President of the United States, for purpose of gathering foreign intelligence information did not
violate U.S.C.A. Const. Amend. 4. U. S. v. Enten, D.C.D.C.1971, 388 F.Supp. 97.
Telecommunications
1461
This section proscribing wilfully intercepting, endeavoring to intercept or procuring any other
person to intercept or endeavor to intercept, any wire or oral communication is constitutional, in
that it protects right to privacy. U. S. v. Perkins, N.D.Ohio 1974, 383 F.Supp. 922.
Constitutional Law
82(7); Telecommunications
1430
This section prohibiting interception or endeavor to intercept wire or oral communication is, with
respect to oral communications, constitutional by reason of its applicability to state and not to
private action. U. S. v. Burroughs, D.C.S.C.1974, 379 F.Supp. 736, appeal dismissed 510 F.2d
967, opinion withdrawn 537 F.2d 1156, affirmed 564 F.2d 1111. Telecommunications
1430
2. Power of Congress
Congressional authority to enact this section prohibiting the willful interception of oral
communications on the premises of a business whose operations affect interstate commerce is
sufficiently grounded in Congress' general power under the commerce clause, U.S.C.A. Const.
Art. 1, § 8, cl. 3, rationally to classify for regulation certain activities found by it to affect
interstate commerce and to devise appropriate means for the regulation. U. S. v. Duncan, C.A.4
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 25
18 U.S.C.A. § 2511
(N.C.) 1979, 598 F.2d 839, certiorari denied 100 S.Ct. 148, 444 U.S. 871, 62 L.Ed.2d 96.
Commerce
82.6
Congress has plenary power under commerce clause, U.S.C.A. Const. Art. 1, § 8, cl. 3, to
prohibit all interception of wire communications forming part of interstate or foreign
communications network, whether by wiretapping or otherwise. U. S. v. Blattel, N.D.Iowa 1972,
340 F.Supp. 1140. Commerce
59
3. Construction
Wiretap Act section, providing it shall not be unlawful to intercept any radio communication
which is transmitted by any governmental, law enforcement, civil defense, private land mobile,
or public safety communications system, including police and fire, readily accessible to general
public, limits applicability of statute, providing no person not being authorized by sender shall
intercept any radio communication and divulge or publish existence, contents, substance,
purport, effect, or meaning of such intercepted communication to any person; introductory clause
of statute, providing except as authorized by Wiretap Act, modifies each and every sentence of
statute, not just first sentence.
U.S. v. Gass, N.D.Okla.1996, 936 F.Supp. 810.
Telecommunications
1436
This section providing criminal penalties for anyone who willfully intercepts, endeavors to
intercept, or procures any other person to intercept or endeavor to intercept any wire or oral
communication must be read to require a federal nexus in order to pass constitutional muster. U.
S. v. Hubbard, D.C.D.C.1979, 474 F.Supp. 64.
Telecommunications
1430;
Telecommunications
1453
4. Construction with other laws
Federal and Pennsylvania wiretap acts' prohibitions against intentional disclosure to any other
person of contents of wire, oral, or electronic communication which disclosing party knows or
has reason to know was obtained through interception in violation of acts are content-neutral
laws of general applicability; on the other hand, they constitute regulations of pure speech, not
conduct. Bartnicki v. Vopper, U.S.Pa.2001, 121 S.Ct. 1753, 532 U.S. 514, 149 L.Ed.2d 787.
Constitutional Law
90.1(9); Telecommunications
1430
Tape recording of jailed murder suspect's confession to Catholic priest did not violate Wiretap
Act, as recording was made in ordinary course of jailors' duties, notwithstanding fact that
recording violated Religious Freedom Restoration Act (RFRA). Mockaitis v. Harcleroad, C.A.9
(Or.) 1997, 104 F.3d 1522. Telecommunications
1436
Purpose of subsection (2) (a) of this section concerning wire interception by agents of
communication common carrier, and of 1968 amendment to section 605 of Title 47, concerning
unauthorized publication or use of communications was to statutorily enact judicially recognized
exception to general prohibition of latter provision. U. S. v. Clegg, C.A.5 (Tex.) 1975, 509 F.2d
605. Telecommunications
1429
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 26
18 U.S.C.A. § 2511
In employment discrimination action based on federal question, tape recorded conversation
between employee and employer's counsel was admissible, although tape was likely made in
contravention of California statute, making taping of confidential conversation a crime and
limiting admissibility of illegally taped conversations; federal law permitted recording of private
conversations if recording was not made for purpose of committing criminal or tortious act. Zhou
v. Pittsburg State University, D.Kan.2003, 252 F.Supp.2d 1194, affirmed 2004 WL 1529252.
Evidence
154
Satellite television broadcaster's cause of action under the Wiretap Act for alleged unauthorized
interception and use of its satellite programming by purchasers of pirate access devices accrued
for statute of limitations purposes on date of interception and use, and not on date that devices
were purchased, as gravamen of plaintiff's claim was defendants' alleged unauthorized
interception and use of plaintiff's satellite programming, not defendants' purchase of unlawful
devices. In re Cases Filed by DIRECTV, Inc., D.Ariz.2004, 344 F.Supp.2d 647. Limitation Of
Actions
58(1)
Satellite television broadcaster merely by alleging damages of $10,000 in its federal wiretap lawbased civil claim against buyer of "pirate access" device used for unscrambling satellite signals
did not thereby state "sum certain," which would in turn require award of same amount to
broadcaster upon entry of default judgment; rather, it was up to court to determine amount of
damages by determining proper amount that would compensate broadcaster for defaulted buyer's
conduct. DirecTV, Inc. v. Kaas, N.D.Iowa 2003, 294 F.Supp.2d 1044. Federal Civil Procedure
2421
For purposes of civil rights activists' § § 1983 Fourth Amendment action against police officers
arising from their arrests while attempting to film traffic stops and seizure of recording devices
and tapes, even if activists had no reasonable expectation of privacy in their audio and video
tapes, recording devices they used were analogous to closed containers or computers and thus
they had reasonable expectation of privacy in those devices as containers that concealed their
contents from plain view. McCormick v. City of Lawrence, D.Kan.2003, 289 F.Supp.2d 1264,
affirmed 130 Fed.Appx. 987, 2005 WL 1221632. Searches And Seizures
29
Satellite television (TV) broadcaster's complaint against alleged buyer of pirate access devices
that enabled alleged buyer to view broadcaster's satellite TV transmissions without authorization
by or payment to the broadcaster stated claims against alleged buyer under Federal
Communications Act (FCA) provision authorizing civil action for violation of provision setting
forth offense of unauthorized use of communications and under Wiretap Act provision
prohibiting interception and disclosure of electronic communications, even though the complaint
did not allege any connection between the alleged purchase of pirate accessing devices and his
actual use of such devices to receive and/or intercept the broadcaster's satellite transmission.
DIRECTV, Inc. v. Cardona, M.D.Fla.2003, 275 F.Supp.2d 1357. Telecommunications
1299; Telecommunications
1447
Federal Bureau of Investigation properly applied Freedom of Information Act
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
(FOIA)
FOR EDUCATIONAL USE ONLY
Page 27
18 U.S.C.A. § 2511
exemption for matters that are "specifically exempted from disclosure by statute" to withhold
intercepted telephone numbers, names, and addresses of targeted individuals, time frame dates of
interception, and information derived from intercept that was further used in investigation,
pursuant to authorization in Omnibus Criminal Control Act. Raulerson v. Ashcroft, D.D.C.2002,
271 F.Supp.2d 17. Records
55
Provision of Electronic Communications Privacy Act (ECPA) proscribing interception of
electronic communications only applies to intercepting or accessing information while in
transmission whereas provision of ECPA proscribing unauthorized access of stored electronic
communications applies only once electronic messages are stored. U.S. v. Moriarty,
D.Mass.1997, 962 F.Supp. 217. Telecommunications
1434
Even if purchasers of pirated access devices were misjoined in satellite television provider's suit,
alleging illegal interception of satellite television signals in violation of Federal Communications
Act and Electronic Communications Piracy Act, provider's cases against purchasers could be
consolidated based on common questions of fact and law in interest of judicial economy and
efficiency. In re Monon Telephone Co., Inc., N.D.Ind.2003, 218 F.R.D. 614. Federal Civil
Procedure
8.1
Possibility of future harm was too conjectural, and therefore defendants who pleaded guilty to
charges related to satellite communications piracy lacked standing to assert that they were
exempt from penalties imposed by statute proscribing possession of firearm by convicted felon,
and district court lacked jurisdiction to consider issue. U.S. v. Skar, C.A.9 (Mont.) 2003, 75
Fed.Appx. 631, 2003 WL 22137253, Unreported. Weapons
4
5. Construction With Fourth Amendment
Unlike Fourth Amendment, Wiretap Act applies to private conduct as well as to governmental
agents. U.S. v. Steiger, C.A.11 (Ala.) 2003, 318 F.3d 1039, certiorari denied 123 S.Ct. 2120,
538 U.S. 1051, 155 L.Ed.2d 1095. Telecommunications
1434
Both U.S.C.A. Const.Amend. 4, by judicial interpretation, and this chapter, and Safe Streets Act,
expressly, allow undercover agent to record his conversations with suspect and allow
Government to introduce such recordings in evidence. U.S. v. Eschweiler, C.A.7 (Ill.) 1984, 745
F.2d 435, certiorari denied 105 S.Ct. 1188, 469 U.S. 1214, 84 L.Ed.2d 334. Criminal Law
394.3; Telecommunications
1440
Warrantless electronic interceptions of conversations by informant acting under color of law
within purview of subsec. (2)(c) of this section governing electronic surveillance are not
proscribed by U.S.C.A. Const.Amend. 4, since individual has no legitimate expectation that
person to whom he is speaking will not relate conversation to legal authorities, either by
repetition or by recording of conversation. U.S. v. Haimowitz, C.A.11 (Fla.) 1984, 725 F.2d
1561, certiorari denied 105 S.Ct. 563, 469 U.S. 1072, 83 L.Ed.2d 504. Telecommunications
1440
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 28
18 U.S.C.A. § 2511
Under this chapter, unlike U.S.C.A. Const. Amend. 4, the invasion of privacy is not simply over
and done with when an unlawful intrusion has been effected; rather, a disclosure or use of
information obtained through such intrusion amounts to a separate injury to victim's privacy
interest. U. S. v. Dorfman, C.A.7 (Ill.) 1982, 690 F.2d 1217. Telecommunications
1429
Although any electronic surveillance is presumptively unlawful if instituted without compliance
with the strictures of this chapter, a surveillance immune from the warrant requirement of
U.S.C.A. Const. Amend. 4 would not be rendered unlawful by this chapter. (Per Wright, Circuit
Judge, with three Judges concurring and three additional Judges concurring in the judgment.)
Zweibon v. Mitchell, C.A.D.C.1975, 516 F.2d 594, 170 U.S.App.D.C. 1, certiorari denied 96
S.Ct. 1684, 425 U.S. 944, 48 L.Ed.2d 187, certiorari denied 96 S.Ct. 1685, 425 U.S. 944, 48
L.Ed.2d 187, on remand 444 F.Supp. 1296.
Telecommunications
1430;
Telecommunications
1462
Even if this section and prior presidential practice could be invoked to authorize warrantless
wiretaps, national security surveillance still must be exercised in a manner compatible with
U.S.C.A. Const. Amend. 4. Halperin v. Kissinger, D.C.D.C.1976, 424 F.Supp. 838,
supplemented 434 F.Supp. 1193, reversed on other grounds 606 F.2d 1192, 196 U.S.App.D.C.
285, certiorari granted 100 S.Ct. 2915, 446 U.S. 951, 64 L.Ed.2d 807, affirmed in part, dismissed
in part 101 S.Ct. 3132, 452 U.S. 713, 69 L.Ed.2d 367, rehearing denied 102 S.Ct. 892, 453 U.S.
928, 69 L.Ed.2d 1024, on remand 542 F.Supp. 829, on remand 578 F.Supp. 231.
Telecommunications
1434
6. Retroactive effect
Newly announced rule abolishing the interspousal wiretapping exception under Title III of the
Omnibus Crime Control and Safe Streets Acts applied retroactively in civil case; retrospective
operation would further rule's operation by compensating past victims of illegal interspousal
wiretapping and, at the same time, deterring those persons who were either currently wiretapping
their spouses or planning to do so in the future, and extension of liability was not sufficiently
inequitable to justify prospective-only application given that the class of affected persons would
already be facing felony prosecution, imprisonment, fines, and potential civil liability under state
law. Glazner v. Glazner, C.A.11 (Ala.) 2003, 347 F.3d 1212. Telecommunications
1431
Amendment deleting one of three listed exceptions to wiretap statute, thereby eliminating cause
of action, was not retroactively applicable in that amendment affected substantive rights and
liabilities. Boddie v. American Broadcasting Companies, Inc., C.A.6 (Ohio) 1989, 881 F.2d 267,
rehearing denied, certiorari denied 110 S.Ct. 737, 493 U.S. 1028, 107 L.Ed.2d 755.
Telecommunications
1431
Rule of Sweibon v. Mitchell, which narrowly interpreted national security exemption to exclude
only those national security wiretaps that could constitutionally be performed without a warrant
would apply only prospectively. Sinclair v. Kleindienst, C.A.D.C.1981, 645 F.2d 1080, 207
U.S.App.D.C. 155. Courts
100(1)
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 29
18 U.S.C.A. § 2511
Federal wiretap statute provision for recording of communications of consent of one party would
be applied as amended to eliminate liability for recording with an intent to commit an injurious
act even though recording came prior to that amendment, where the amendment was intended to
clarify the law rather than to change it. Boddie v. American Broadcasting Companies, Inc.,
N.D.Ohio 1988, 694 F.Supp. 1304, affirmed 881 F.2d 267, rehearing denied, certiorari denied
110 S.Ct. 737, 493 U.S. 1028, 107 L.Ed.2d 755. Telecommunications
1431
Federal wiretap statute provision for recording of communications of consent of one party would
be applied as amended to eliminate liability for recording with an intent to commit an injurious
act even though recording came prior to that amendment, where the amendment was intended to
clarify the law rather than to change it. Boddie v. American Broadcasting Companies, Inc.,
N.D.Ohio 1988, 694 F.Supp. 1304, affirmed 881 F.2d 267, rehearing denied, certiorari denied
110 S.Ct. 737, 493 U.S. 1028, 107 L.Ed.2d 755. Telecommunications
1431
7. State laws
Internet service provider (ISP) was not liable to college athletes for customer's use of service to
display images of the athletes who were unknowingly recorded unclothed while in locker room
setting, since athletes failed to alleged any state law or common-law doctrine which would have
required ISP to protect third parties who may have been injured by material posted on their
services, and federal "good samaritan law" protected ISP from such liability. Doe v. GTE Corp.,
C.A.7 (Ill.) 2003, 347 F.3d 655. Telecommunications
1344
Evidence obtained in narcotics prosecution by means of agent wearing wire during conversations
with defendant was, at most, product of joint federal-state investigation so that suppression of
evidence was not required, even though evidence would not have been admissible under
Massachusetts law; although initial contact between defendant and law enforcement officers was
with state and local police, case was immediately referred to narcotics task force composed of
both state officers and federal agents and headed by federal agent. U.S. v. Pratt, C.A.1 (Mass.)
1990, 913 F.2d 982, certiorari denied 111 S.Ct. 681, 498 U.S. 1028, 112 L.Ed.2d 673. Criminal
Law
394.3
Under federal law, federal officers have authority to record conversations with defendant by
means of agent wearing "wire" so that, in federal prosecution, wiretap evidence would not be
excluded simply as result of possibility that evidence would be inadmissible under Massachusetts
law requiring both parties to conversation to consent to use of wire. U.S. v. Pratt, C.A.1 (Mass.)
1990, 913 F.2d 982, certiorari denied 111 S.Ct. 681, 498 U.S. 1028, 112 L.Ed.2d 673. Criminal
Law
394.3
In federal prosecution for conspiracy to kill a government witness, tape recordings made by state
authorities of conversations between government informant and defendants' coconspirator, to
which only informant consented, were admissible, notwithstanding that such evidence would
have been inadmissible under Wisconsin law in state court since no court order permitting tape
recording was obtained. U.S. v. D'Antoni, C.A.7 (Wis.) 1989, 874 F.2d 1214. Criminal Law
394.3
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 30
18 U.S.C.A. § 2511
Omnibus Crime Control and Safe Streets Act provision that "no cause of action shall lie in any
court" against those who assist in performance of federal intercept prevails over provisions of
Puerto Rico Constitution and law prohibiting wiretapping; provision was not "locally
inapplicable" within meaning of Federal Relations Act provision stating the statutory laws of
United States "not locally inapplicable" shall have same force and effect in Puerto Rico as in
United States. Camacho v. Autoridad de Telefonos de Puerto Rico, C.A.1 (Puerto Rico) 1989,
868 F.2d 482. Statutes
55; Territories
18
Mere involvement of state officers in joint federal-state investigation was not sufficient reason to
look to state law to determine admissibility of interception evidence. U.S. v. Jarabek, C.A.1
(Mass.) 1984, 726 F.2d 889. Federal Courts
416
Evidence obtained from consensual wiretap conforming to federal law is admissible in federal
court proceedings without regard to state law. U.S. v. Adams, C.A.9 (Hawai'i) 1982, 694 F.2d
200, certiorari denied 103 S.Ct. 3085, 462 U.S. 1118, 77 L.Ed.2d 1347. Criminal Law
394.3
A more restrictive state law on use of eavesdropping device does not affect admissibility of such
evidence in federal court. U. S. v. Horton, C.A.7 (Ill.) 1979, 601 F.2d 319, certiorari denied 100
S.Ct. 287, 444 U.S. 937, 62 L.Ed.2d 197. Federal Courts
404
Evidence of telephone conversations between informant and defendants which were recorded
with informant's consent were admissible, despite contention that this section was not intended to
preempt more restrictive West's Ann.Pen. Code § 631 and N.R.S. 200.610-200.690 requiring
consent of all parties; where the evidence was gathered in accordance with federal law, it was
admissible, even if its acquisition violated state law. U. S. v. Testa, C.A.9 (Hawai'i) 1977, 548
F.2d 847. Criminal Law
394.3
Telephone company's action in conducting electronic surveillance of suspected "blue box" user's
telephone lines as permitted by this section was not converted to "state action" by virtue of fact
that state statute likewise permitted telephone company to conduct such surveillance. U. S. v.
Auler, C.A.7 (Wis.) 1976, 539 F.2d 642, certiorari denied 97 S.Ct. 1132, 429 U.S. 1104, 51
L.Ed.2d 555. Telecommunications
1437
Where electronic interceptions of conversations involving undercover agent of a district
attorney's office in Georgia were made with consent of agent, such interceptions did not violate
this chapter, notwithstanding contention that Georgia Code § 26-3001 et seq. establishing
procedures for obtaining warrant for electronic surveillance was inconsistent with this chapter.
Ansley v. Stynchcombe, C.A.5 (Ga.) 1973, 480 F.2d 437. Telecommunications
1440
Federal law will not control in state court in face of state statute governing tape recording of
private conversations when state law is stricter than federal law; federal statute is only
preemptive in those situations where there is no state law on subject of conversation interception,
or state law is less strict. Roberts v. Americable Intern. Inc., E.D.Cal.1995, 883 F.Supp. 499.
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 31
18 U.S.C.A. § 2511
Evidence
154; States
18.81
Federal law controlled question of whether tape-recorded interception of telephone conversations
at New York state prison could be used as evidence in federal court. U.S. v. Green,
W.D.N.Y.1994, 842 F.Supp. 68, affirmed 80 F.3d 688, 169 A.L.R. Fed. 725, certiorari denied
117 S.Ct. 319, 519 U.S. 938, 136 L.Ed.2d 233, certiorari denied 117 S.Ct. 373, 519 U.S. 955,
136 L.Ed.2d 262, denial of post-conviction relief affirmed in part, vacated in part 4 Fed.Appx.
88, 2001 WL 179072. Federal Courts
416
Mere fact that alleged victim's recording of telephone conversations between defendant and
victim would violate Massachusetts law did not establish that victim made recordings for
purpose of committing criminal act within meaning of federal wiretap statute and, thus, did not
remove recordings from federal statutory authorization for intentional interception of wire
communications by party to communication. U.S. v. DiFelice, S.D.N.Y.1993, 837 F.Supp. 81.
Telecommunications
1440
Admissibility of tape recordings of conversations between defendant and another was governed
in criminal contempt proceeding by federal law, not by state law which prohibited the
warrantless recording of conversation without the consent of all persons involved. U.S. v.
Eyerman, S.D.N.Y.1987, 660 F.Supp. 775, appeal dismissed 857 F.2d 1462. Criminal Law
394.3
Evidence of transcription by state officials of telephone conversations between police officer,
with his consent, and attorneys was admissible in federal prosecution of attorneys and their client
for conspiring to bribe police officer to arrange for dismissal of client's car theft charges, even
though evidence was obtained by state officials in violation of state law, where evidence was not
obtained in violation of this section. U.S. v. Gervasi, N.D.Ill.1983, 562 F.Supp. 632. Criminal
Law
394.2(2)
This chapter permits the use in federal courts of wiretaps without a warrant when one party
consents, regardless of whether state law would prohibit use of such wiretaps and
notwithstanding participation of state law enforcement officials. U. S. v. Proctor, D.C.Hawai'i
1981, 526 F.Supp. 1198, affirmed 694 F.2d 200, certiorari denied 103 S.Ct. 3085, 462 U.S. 1118,
77 L.Ed.2d 1347. Telecommunications
1440
Although New Hampshire has adopted a wiretapping and eavesdropping law, N.H. RSA 570A:2, stricter than this chapter, the interceptions and recordings at issue in the instant case were
not governed by the provisions of the New Hampshire statute or the interpretations thereof by the
New Hampshire Supreme Court but, rather, by this chapter, since the case was concerned solely
with federal officers engaged in the investigation of an alleged federal crime, with trial of the
offense to be held in a federal court before a federal jury. U. S. v. Upton, D.C.N.H.1980, 502
F.Supp. 1193. Federal Courts
404
This chapter pertaining to electronic surveillance allow states which choose to do so by
legislative action to conduct wiretaps provided wiretaps are conducted in accord with minimum
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 32
18 U.S.C.A. § 2511
federal standards but if state legislature determines to adopt stricter standards, the stricter state
standards apply. U. S. v. Curreri, D.C.Md.1974, 388 F.Supp. 607. States
18.81
8. Purpose
In enacting this section prohibiting willful interception of any wire or oral communication,
Congress did not intend to prohibit recording conversation when its purpose was to preserve
evidence of extortion directed against recorder, president of franchisor, to be used later for
purpose of terminating franchise agreement. Moore v. Telfon Communications Corp., C.A.9
(Cal.) 1978, 589 F.2d 959. Telecommunications
1440
Purpose of this section governing interceptions of wire or oral communications was to sharply
curtail electronic surveillance and to authorize it only under strict judicial supervision and
authorization. U. S. v. Jones, C.A.6 (Tenn.) 1976, 542 F.2d 661. Telecommunications
1429
Purpose of this section justifying wire interception is to allow the disclosure of justified wire
monitoring by communication carriers for the purpose of criminal prosecution of those who
fraudulently use their services. U. S. v. Harvey, C.A.8 (Ark.) 1976, 540 F.2d 1345.
Telecommunications
1429
Congress, in enacting this section authorizing communications carriers to engage in certain
investigations to detect improper use of their facilities, intended to permit wire service carriers to
conduct investigations designed to prevent subscriber fraud. U. S. v. Goldstein, C.A.9 (Cal.)
1976, 532 F.2d 1305, certiorari denied 97 S.Ct. 384, 429 U.S. 960, 50 L.Ed.2d 327.
Telecommunications
1429
Essential purpose of provisions of this chapter is to combine a limited and carefully articulated
grant of power to intercept communications with an elaborate set of safeguards to deter abuse
and to expunge its effects in event that it should occur, and prohibitions and limitations are
designed as a precondition to acceptability of any wiretapping at all. In re Evans, C.A.D.C.1971,
452 F.2d 1239, 146 U.S.App.D.C. 310, certiorari denied 92 S.Ct. 2479, 408 U.S. 930, 33
L.Ed.2d 342. Telecommunications
1429
Exclusivity provision of Foreign Intelligence Surveillance Act--procedures in Title III of
Omnibus Crime Control and Safe Streets Act (federal wiretap law) and Surveillance Act are
exclusive means by which electronic surveillance and interception of domestic wire and oral
communications may be conducted--is intended to curtail executive authority in national security
matters and is not intended to curtail law enforcement investigations of criminal activities; thus,
incorporation of video surveillance into FISA does not forbid use of such surveillance in criminal
investigations. U.S. v. Andonian, C.D.Cal.1990, 735 F.Supp. 1469, affirmed and remanded on
other grounds 29 F.3d 634, certiorari denied 115 S.Ct. 938, 513 U.S. 1128, 130 L.Ed.2d 883.
Telecommunications
1436
Amendment to wiretap law to remove liability for tape recording of conversations with the
consent of one of the parties for the purpose of committing injurious act was intended only to
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 33
18 U.S.C.A. § 2511
clarify the law and not to change it. Boddie v. American Broadcasting Companies, Inc.,
N.D.Ohio 1988, 694 F.Supp. 1304, affirmed 881 F.2d 267, rehearing denied, certiorari denied
110 S.Ct. 737, 493 U.S. 1028, 107 L.Ed.2d 755. Telecommunications
1431
Congress, in enacting this chapter, intended to prohibit interception of all wire communications
by any person except as specifically provided by Congress and, therefore, intended to prohibit
one spouse from intercepting the wire communications of the other spouse in their own home.
Kratz v. Kratz, E.D.Pa.1979, 477 F.Supp. 463. Telecommunications
1440
9. Scope of section
Federal wiretapping law prohibits more than just initial wrongful invasion; disclosure and/or use
of information obtained through wrongful invasion amounts to separate injury prohibited by
statute, and makes person subjected to such disclosure and/or use victim once again of federal
crime. Williams v. Poulos, C.A.1 (Me.) 1993, 11 F.3d 271. Telecommunications
1436
This section is not limited in its application merely to persons acting under color of state or
federal law. U. S. v. Burroughs, C.A.4 (S.C.) 1977, 564 F.2d 1111. Telecommunications
1440
Federal law regarding interception of oral and wire communications governs only conversations
that were recorded by someone not a party to communications. Kettenbach v. Demoulas,
D.Mass.1995, 901 F.Supp. 486. Telecommunications
1440
Chapter governing wire and electronic communications interception and interception of oral
communications did not apply to placing of electronic beeper in undeliverable test letter placed
with mail to be delivered by mail carrier suspected of mail embezzlement, a beeper which
enabled postal inspectors to monitor the undeliverable letter's location and was set to emit signal
when the letter was opened; there was no monitoring of defendant's communications. U.S. v.
Dowdy, D.Colo.1988, 688 F.Supp. 1477. Telecommunications
1486
10. Enforcement
Without experience showing the contrary Supreme Court should not assume that this chapter
prohibiting unauthorized electronic surveillance will be cavalierly disregarded or will not be
enforced against transgressors. Alderman v. U.S., U.S.Colo.1969, 89 S.Ct. 961, 394 U.S. 165, 22
L.Ed.2d 176, rehearing denied 89 S.Ct. 1177, 394 U.S. 939, 22 L.Ed.2d 475, on remand 318
F.Supp. 66, on remand 342 F.Supp. 928. Criminal Law
322
Provider of satellite television broadcasts could bring private civil action against individual who
allegedly intercepted encrypted satellite transmissions of provider under federal Wiretap Act
prohibiting intentional interception of electronic communications. DIRECTV, Inc. v. Bennett,
C.A.5 (La.) 2006, 470 F.3d 565. Telecommunications
1298
Electronic Communications Privacy Act (ECPA) created private cause of action for unauthorized
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 34
18 U.S.C.A. § 2511
interception of encrypted satellite television transmissions, but not for possession and
distribution of devices useful for interception. DIRECTV, INC. v. Hart, E.D.N.C.2004, 366
F.Supp.2d 315. Action
3
11. Executive powers
Former Attorney General was entitled to qualified immunity in civil damage action based upon
wiretaps, where sufficient facts were alleged to place wiretap in rational national security
context. Ellsberg v. Mitchell, C.A.D.C.1986, 807 F.2d 204, 257 U.S.App.D.C. 59, certiorari
denied 108 S.Ct. 197, 484 U.S. 870, 98 L.Ed.2d 148. Telecommunications
1441
Former national security council staff member's admission that he had access to option papers
discussing possibility of Cambodian bombing operation, secret talks with North Vietnamese, and
withdrawal of troops from Vietnam, as well as contingency planning in event that such steps
might be taken, together with evidence that staff member had roomed with reporter who wrote
article reporting classified bombing raids on Cambodia, was sufficient to establish reasonable
national security grounds for wiretap of staff member's phone so as to entitle government
officials who ordered wiretap to qualified immunity defense in civil damage action brought by
staff member. Halperin v. Kissinger, C.A.D.C.1986, 807 F.2d 180, 257 U.S.App.D.C. 35, on
remand 723 F.Supp. 1535. Telecommunications
1441
Whatever constitutional power lies without scope of this chapter and is invested in chief
executive to authorize warrantless surveillance for sake of "national security," necessary
prerequisite to administration of such power is express approval by President or Attorney
General. U. S. v. Kearney, S.D.N.Y.1977, 436 F.Supp. 1108. Telecommunications
1462
12. Electronic communications
Pay-per-view television signals that were intercepted by electronic device manufactured and sold
by defendants qualified as "electronic communications" within meaning of section of Wiretap
Act prohibiting any person from knowingly manufacturing device whose primary use is
surreptitious interception of electronic communications. U.S. v. Herring, C.A.11 (Ala.) 1993,
993 F.2d 784, certiorari denied 114 S.Ct. 347, 510 U.S. 933, 126 L.Ed.2d 312.
Telecommunications
1304
Transmission of keystrokes from keyboard to computer's processing unit was not "electronic
communication," and thus defendant's interception of keystrokes did not violate Federal Wiretap
Act, even though system was connected to network that affected interstate or foreign commerce,
where communication was intercepted before it was transmitted by network. U.S. v. Ropp,
C.D.Cal.2004, 347 F.Supp.2d 831. Telecommunications
1439
Phone numbers stored in memory of cell phone lawfully seized by police were not
"communications" subject to requirements of the Electronic Communications Privacy Act
(ECPA). U.S. v. Parada, D.Kan.2003, 289 F.Supp.2d 1291. Telecommunications
1437
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 35
18 U.S.C.A. § 2511
13. Wire communications
Telephone communication which occurred between defendant and codefendant and which was
intercepted by switchboard operator at motel where codefendant was staying was a "wire
communication" and, hence, was absolutely protected if interception was willful and, hence,
illegal. U. S. v. Axselle, C.A.10 (Kan.) 1979, 604 F.2d 1330. Telecommunications
1437
14. Radio transmissions
Radio stations' transmissions on subcarrier frequencies that could be received only through use
of special, modified radio equipment provided to subscribers for yearly fee were not the type of
transmissions protected under Communications Act section prohibiting interception of wire, oral,
or electronic communications, so as to permit civil action recovery; the prohibitive statute was
concerned with efforts to surreptitiously learn contents of private, business, or personal
communications made over a telephone and with electronic surveillance. Greek Radio Network
of America, Inc. v. Vlasopoulos, E.D.Pa.1990, 731 F.Supp. 1227. Telecommunications
1436
There was no reasonable expectation of privacy in communication which was broadcast by radio
in all directions to be overheard by countless people who purchase and daily use receiving
devices such as "bearcat" scanner, or who happen to have another mobile radio telephone tuned
to same frequency; thus, operator of radio receiver scanner did not violate Federal Wiretapping
Act by intercepting conversation between attorney and client, tape recording it, or divulging it to
United States Attorney, and any disclosure made by United States Attorney was also not
violation of statute. Edwards v. Bardwell, M.D.La.1986, 632 F.Supp. 584, affirmed 808 F.2d 54.
Telecommunications
1438
15. Commercial satellite programming
A provision of the Wiretap Act making it unlawful for any person to intentionally intercept
electronic communications applied to the interception of commercial satellite programming;
exception from the Wiretap Act applied to cable satellite programming only if it was
unencrypted and unscrambled; overruling United States v. Hux, 940 F.2d 314. U.S. v. Davis,
C.A.8 (Iowa) 1992, 978 F.2d 415. Telecommunications
1434
16. Devices
Title I, which prohibits the intentional interception, eavesdropping to intercept, or procurement
of any other person to intercept or endeavor to intercept "any wire, oral, or electronic
communication," does not regulate silent video surveillance. U.S. v. Jackson, C.A.10 (Okla.)
2000, 213 F.3d 1269, vacated 121 S.Ct. 621, 531 U.S. 1033, 148 L.Ed.2d 531, on remand 240
F.3d 1245, certiorari denied 121 S.Ct. 629, 531 U.S. 1038, 148 L.Ed.2d 537.
Telecommunications
1428
Use of pager clones to intercept numeric transmissions to suspect's digital display pagers was
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 36
18 U.S.C.A. § 2511
unauthorized interception of electronic communications under Electronic Communications
Privacy Act (ECPA) as a matter of law. Brown v. Waddell, C.A.4 (N.C.) 1995, 50 F.3d 285.
Telecommunications
1462
Telephone company's use of a snifter in investigation of illegal use of blue box did not violate
this section, since a snifter only records each telephone emission of a 2,600 cycle tone, and is
incapable of making an aural acquisition of communications. U. S. v. Bowler, C.A.9 (Ariz.)
1977, 561 F.2d 1323. Telecommunications
1437
Telephone subscriber cannot contend that monitoring conducted is random, or that the use of a
dial number recorder effects an impermissible interception on line, where the automatic devices
utilized by telephone company are not installed until after evidence of illegal calls from
subscriber's number is obtained and since subscriber has no reasonable expectation that records
of his calls will not be made. U. S. v. Harvey, C.A.8 (Ark.) 1976, 540 F.2d 1345.
Telecommunications
1437
Use of peg-count meter on telephone line to defect presence of multifrequency tones was not
improper where examination of long-distance telephone records indicated that the subscriber
might be using a blue box. U. S. v. Goldstein, C.A.9 (Cal.) 1976, 532 F.2d 1305, certiorari
denied 97 S.Ct. 384, 429 U.S. 960, 50 L.Ed.2d 327. Telecommunications
1437
For purposes of determining whether any electronic, mechanical or other device was used to
unlawful intercept telephone conversation, tape recorder which was connected to telephone
extension to record telephone conversation did not constitute the intercepting mechanism;
telephone extension constituted the intercepting device. U. S. v. Harpel, C.A.10 (Colo.) 1974,
493 F.2d 346. Telecommunications
1437
Satellite television service provider was entitled to default judgment on its claim that purchaser
of pirate access devices had engaged in unauthorized interception of encrypted signals; it was
reasonably inferable that devices had been used for their intended purpose. Directv, Inc. v.
Agee, D.D.C.2005, 405 F.Supp.2d 6. Telecommunications
1298
Individual's purchase and receipt of "pirate access" device used to unscramble satellite television
signals violated federal wiretap law as well as federal statute prohibiting unauthorized
publication or use of communications. DirecTV, Inc. v. Kaas, N.D.Iowa 2003, 294 F.Supp.2d
1044. Telecommunications
494.1
Requirements for interception of oral and wire communications as set forth in this chapter do not
apply to installation of a TR-12 touch tone decoder so long as it is not used with a transducer to
convert electrical impulses to sound impulses either contemporaneously with receipt of electrical
impulse or subsequently. U. S. v. Focarile, D.C.Md.1972, 340 F.Supp. 1033, affirmed 469 F.2d
522, certiorari granted 93 S.Ct. 1530, 411 U.S. 905, 36 L.Ed.2d 194, affirmed 94 S.Ct. 1820, 416
U.S. 505, 40 L.Ed.2d 341, affirmed 473 F.2d 906, certiorari denied 93 S.Ct. 1931, 411 U.S. 952,
36 L.Ed.2d 414. Telecommunications
1437
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 37
18 U.S.C.A. § 2511
Joinder of purchasers of pirate access devices as defendants in suit by satellite television provider
alleging illegal interception of satellite television programming in violation of federal law was
improper; alleged violations of each defendant did not arise out of the same transaction or
occurrence as required by joinder rule, where each defendant acted independently, and did not
know of the others' transactions or purposes. DIRECTV v. Loussaert, S.D.Iowa 2003, 218
F.R.D. 639. Federal Civil Procedure
251
Where telephone subscriber alerted police after hearing strange voices on malfunctioning
telephone and the police, on invitation, listened in on the telephone and recorded gambling
oriented conversations by means of a tape recorder attached with suction cup and induction coil
to back of telephone receiver, the malfunctioning telephone was not an "intercepting device" and,
since there was no interception, police did not violate this chapter. State v. McCartin,
N.J.Super.L.1975, 342 A.2d 591, 135 N.J.Super. 81. Telecommunications
1440
17. Descramblers
Provision of wiretap statute prohibiting interception and unauthorized procurement of another
person to intercept electronic communication applied to manufacture and sale of modified
descramblers used to permit viewing of encrypted satellite television transmissions. U.S. v.
Shriver, C.A.7 (Ill.) 1992, 989 F.2d 898, amended on rehearing. Telecommunications
1304
Modified satellite descramblers, manufactured and sold for intercepting and unauthorized
viewing of encrypted signals of premium pay television programming networks, were subject to
forfeiture under the Electronic Communications Privacy Act; the manufacturer of the
descrambler was subject to criminal prosecution under the Act, as well as under separate statute
prohibiting the unauthorized interception of communications by means of new technologies,
including satellite communications. U.S. v. One Macom Video Cipher II, SN A6J050073, C.A.6
(Ohio) 1993, 985 F.2d 258. Forfeitures
4
Person who views satellite television programming by use of modified descrambler and satellite
dish "intentionally intercepts" satellite television signal, within meaning of Electronic
Communications Privacy Act (ECPA), which is an "electronic communication" within meaning
of ECPA. U.S. v. Lande, C.A.9 (Mont.) 1992, 968 F.2d 907, certiorari denied 113 S.Ct. 1299,
507 U.S. 926, 122 L.Ed.2d 689, denial of post-conviction relief affirmed 77 F.3d 491.
Telecommunications
1304
In light of criminal penalties provided for unauthorized descrambling of satellite programming,
descrambling was not intended to be included in wiretap laws; satellite transmission interception
by home viewers was mentioned in legislative history of wiretap laws only in context of
excepting unscrambled satellite transmissions. U.S. v. Shriver, C.D.Ill.1992, 782 F.Supp. 408,
reversed 989 F.2d 898, amended on rehearing. Telecommunications
1304
18. Privacy expectation
The District Court was required to consider whether the interests of justice required adult
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 38
18 U.S.C.A. § 2511
woman, who was videotaped having consensual sex with her boyfriend when she was a minor, to
disclose her name as plaintiff, in lawsuit against boyfriend, alleging that boyfriend illegally
distributed videotape in violation of the Wiretap Act. Doe v. Smith, C.A.7 (Ill.) 2005, 429 F.3d
706. Federal Civil Procedure
101
Grandmother and father of two murdered children did not have subjective expectation of privacy
in their oral communications and prayers directed toward children at outdoor grave site service,
and therefore, interception of such communications by placement of electronic surveillance
microphone in funeral urn did not violate Fourth Amendment; service was attended by media
and other third parties, cemetery was publicly accessible, and no steps were taken to preserve
privacy of communications. Kee v. City of Rowlett, Tex., C.A.5 (Tex.) 2001, 247 F.3d 206,
rehearing denied, certiorari denied 122 S.Ct. 210, 534 U.S. 892, 151 L.Ed.2d 149.
Telecommunications
1440
Acquisition and use of telephone subscriber information did not violate federal law because there
could be no expectation that this information would remain private; subscriber information was
listed in phone books and city directories and, at bare minimum, revealed to phone company to
obtain telephone service. U.S. v. Fregoso, C.A.8 (Neb.) 1995, 60 F.3d 1314, rehearing and
rehearing en banc denied. Telecommunications
1475
Defendant did not have reasonable or legitimate expectation of privacy in statements made to
companion while seated in police car and, accordingly, statements made by a defendant and
recorded by police officer were not protected under Fourth Amendment or Wiretap Act;
allowing police to record statements made by individual seated inside patrol car does not intrude
upon privacy and freedom to such extent that it could be regarded as inconsistent with aims of
free and open society. U.S. v. Clark, C.A.8 (Iowa) 1994, 22 F.3d 799, rehearing and suggestion
for rehearing en banc denied. Telecommunications
1440
Defendant did not have reasonable expectation of privacy while in backseat of police car and,
therefore, tape recording of his prearrest conversations did not violate Title III of the Omnibus
Crime Control and Safe Streets Act or his Fourth Amendment right to privacy. U.S. v.
McKinnon, C.A.11 (Fla.) 1993, 985 F.2d 525, certiorari denied 114 S.Ct. 130, 510 U.S. 843, 126
L.Ed.2d 94. Searches And Seizures
26; Telecommunications
1436
Where only "interception" of telephone call from defendant was by government agent who was
party to conversation, where government agents did not record or transcribe all in any way, and
where defendant instituted calls and spoke voluntarily and without hesitation to agents, none of
whom pretended to be person that defendant wished to reach, defendant had no legitimate
expectation of privacy in telephone conversations with agents and assumed risk of exposure
when he spoke freely with them. U. S. v. Congote, C.A.5 (Fla.) 1981, 656 F.2d 971.
Telecommunications
1440
Application of this section prohibiting the secret monitoring of wire communications should not
turn on the type of equipment used, but should turn on whether the privacy of telephone
conversations has been invaded in a manner offensive to the words and intent of the statutes.
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 39
18 U.S.C.A. § 2511
Campiti v. Walonis, C.A.1 (Mass.) 1979, 611 F.2d 387. Telecommunications
1436
It is not every interception of a wire or oral communication by a person not acting under color of
law that is made for purpose of committing a tortious act; each willing participant in the
conversation takes the risk that another participant may divulge the contents of the conversation
and if the conversation is divulged, whether by memory of the participant or by electronic
reproduction, there is no violation of any privacy right. U. S. v. Phillips, C.A.8 (Mo.) 1976, 540
F.2d 319, certiorari denied 97 S.Ct. 530, 429 U.S. 1000, 50 L.Ed.2d 611. Telecommunications
1440
Radio station employee speaking to co-worker at traffic reporter's work station near microphone
could not reasonably expect to make communications free from interception, as required to state
claim under Electronic Communications Privacy Act (ECPA); although employee did not have
knowledge of microphone's cue function or its innerworkings, she should reasonably have
known that detection of comments made close to microphone was distinct possibility. Wesley v.
WISN Division-Hearst Corp., E.D.Wis.1992, 806 F.Supp. 812. Telecommunications
1436
Defendant's consent to tape recording was not prerequisite to admission of tape recorded
confession in murder prosecution; defendant spoke without any expectation of privacy to law
enforcement officers who consented to the taping. Roller v. McKellar, D.S.C.1989, 711 F.Supp.
272, appeal dismissed 891 F.2d 287. Criminal Law
517(7)
Applicable federal and state constitutional provisions apply only where parties to communication
have a "reasonable expectation of privacy" with respect to what is said; similarly, protection
afforded by this section and state statutes which prohibit introduction into evidence of certain
conversations, applies only to communications uttered by a person exhibiting an expectation that
such communication is not subject to interception under circumstances justifying such
expectation, or to a communication that is intended to be confidential. Bianco v. American
Broadcasting Companies, Inc., N.D.Ill.1979, 470 F.Supp. 182; People v. Estrada, 1979, 155
Cal.Rptr. 731, 93 C.A.3d 76.
19. Scope of monitoring
In monitoring telephone call received by employee to determine whether it was a business or
personal call, employer was obliged to cease listening as soon as it determined that the call was
personal, regardless of the contents of the legitimately heard conversation. Watkins v. L.M.
Berry & Co., C.A.11 (Ala.) 1983, 704 F.2d 577. Telecommunications
1441
The reasonableness of an electronic surveillance depends on its length in the context of what is
sought and what is discovered and a surveillance may be entirely unreasonable even though it
lasts for 30 days or only 10 days. Smith v. Nixon, C.A.D.C.1979, 606 F.2d 1183, 196
U.S.App.D.C. 276, certiorari denied 101 S.Ct. 3147, 453 U.S. 912, 69 L.Ed.2d 997, rehearing
denied 102 S.Ct. 892, 453 U.S. 928, 69 L.Ed.2d 1024, on remand 582 F.Supp. 709, on remand
582 F.Supp. 716. Telecommunications
1473
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 40
18 U.S.C.A. § 2511
Telephone company did not exceed permissible scope of justified wire interception on theory
that interception had continued after carrier had obtained sufficient evidence for a wire fraud
prosecution, where, inter alia, monitoring was not of entire contents of calls but instead only first
one or two minutes of each call were recorded in an attempt to obtain name from salutations,
voice recordings not preceded by 2600 cycle tone were erased without listening to contents, and,
after one caller had been tentatively identified, voice recorder indicated that another person was
involved in a "blue box" call from subscriber's number. U. S. v. Harvey, C.A.8 (Ark.) 1976, 540
F.2d 1345. Telecommunications
1437
20. Private interception
Where defendant convicted of illegal wiretapping was private person and not agent of
government, search and seizure rules pursuant to U.S.C.A. Const. Amend. 4 which allow
government to use illegally seized evidence for impeachment purposes did not come into play.
Anthony v. U. S., C.A.10 (Okla.) 1981, 667 F.2d 870, certiorari denied 102 S.Ct. 2959, 457 U.S.
1133, 73 L.Ed.2d 1350. Witnesses
331.5
Installation or maintenance of electronic eavesdropping devices are not tasks exclusively
relegated to federal agents by Omnibus Crime Control and Safe Streets Act; as long as
interception has been authorized pursuant to Act, and any person entering private property for
purpose of installing surveillance devices is authorized to enter property, either by warrant or
otherwise, there are no further constitutional or statutory requirements relating to actual
installation of devices. U.S. v. Gambino, S.D.N.Y.1990, 734 F.Supp. 1084. Telecommunications
1472
In that telephone company's nine days of monitoring incoming calls on defendants' telephone
was completed prior to telephone company's notifying law enforcement agency and surveillance
was conducted independently from any government direction or participation, such surveillance
was not an illegal government search. U. S. v. Logan, S.D.Ill.1976, 423 F.Supp. 146. Searches
And Seizures
34
While subsection (1) (a) of this section prohibiting interception or endeavor to intercept wire or
oral communication reaches bugging, i.e., interception of oral communication, by state action,
subsection (1) (b) of this section prohibiting use of device to intercept oral communication
reaches private action affecting interstate commerce. U. S. v. Burroughs, D.C.S.C.1974, 379
F.Supp. 736, appeal dismissed 510 F.2d 967, opinion withdrawn 537 F.2d 1156, affirmed 564
F.2d 1111. Telecommunications
1429; Telecommunications
1440
21. Overhearing of oral communication
Where an employee's supervisor had particular suspicions about confidential information being
disclosed to a business competitor, had warned employee not to disclose such information, and
knew that a particular telephone call was with an agent of the competitor, it was within the
ordinary course of business for the supervisor to listen in on an extension phone for at least as
long as the call involved the type of information he feared was being disclosed and extension
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 41
18 U.S.C.A. § 2511
telephone exception was applicable such that there was no violation of the prohibition against
wiretapping and electronic surveillance contained in this section. Briggs v. American Air Filter
Co., Inc., C.A.5 (Ga.) 1980, 630 F.2d 414. Telecommunications
1440
Officers executing search warrant did not improperly "intercept" any "wire, oral, or electronic
communication" when they overheard answering machine during their search of premises;
officer simply overheard clearly audible transmissions while they were lawfully in same room
with answering machine. U.S. v. Upton, S.D.Ohio 1991, 763 F.Supp. 232. Telecommunications
1436
Fact that, on certain of bugging tapes, both person making telephone call and the caller could be
heard did not establish that there was illegal wiretap bugging telephone conversation itself, in
view of testimony and demonstration establishing that phenomenon of caller's faint voice being
heard could be explained by one of the bugs being in base of telephone itself, so that, if earpiece
was held slightest distance from the ear, words of caller would be audible in room and picked up
by the bug. U. S. v. Williams, S.D.N.Y.1981, 527 F.Supp. 859. Telecommunications
1437
Overhearings of conversations by use of roadblock party line phone did not fail to constitute an
interception under this section on theory that some of persons overheard were illegally in
possession of trading post and town on Indian Reservation. U. S. v. Banks, D.C.S.D.1974, 374
F.Supp. 321. Telecommunications
1440
Where conversations in adjacent hotel room could be heard in defendant's room, by the
unassisted ear, defendant recorded conversations by using a cassette-type recorder with a
standard microphone no more sensitive than the human ear and there was no question of
contrivance by defendant and defendant did not eavesdrop in a position where an individual
would not normally be expected and did not place any device in an unauthorized place,
defendant could not be found guilty of interception of oral communication in violation of this
chapter. U. S. v. Carroll, D.C.D.C.1971, 337 F.Supp. 1260. Telecommunications
1436
Investigators who overheard accused's telephone communication with call recipient, with prior
consent of call recipient, did not unlawfully intercept the communication. U.S. v. Parrillo, CMA
1992, 34 M.J. 112. Military Justice
1058.1
Recording of telephone conversation by police was immaterial where the overhearing was itself
legal.
State v. McCartin, N.J.Super.L.1975, 342 A.2d 591, 135 N.J.Super. 81.
Telecommunications
1440
No interception of defendant's conversation with his counsel occurred, for purposes of
determining whether defendant's refusal to take breath test would be suppressed, where, although
officer refused to leave defendant alone to talk with his attorney by phone, officers were talking
with each other and did not overhear defendant's end of conversation. State v. Myers, Ohio App.
4 Dist.1990, 586 N.E.2d 155, 66 Ohio App.3d 717. Automobiles
421
Where telephone operators listened to telephone conversation between defendant, who was
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 42
18 U.S.C.A. § 2511
subsequently accused of murder, and wife of deceased for 15 minutes for no purpose other than
curiosity, such action by the operators was not in ordinary course of business of telephone
company, and thus was willful interception of wire or oral communication within meaning of his
chapter proscribing such activity. State v. Dwyer, Ariz.App.1978, 585 P.2d 900, 120 Ariz. 291.
Telecommunications
1437
Where motel office telephone switchboard buzzer and light indicated a telephone call to office
from room 5 which had been rented to decedent, manager of motel answered telephone with
inquiry "Can I help you?", but received no response, motel manager heard a "very loud
disturbance" in the room including "cussing and fighting and calling each other names," motel
manager then made a tape recording at telephone switchboard of conversations and sounds of
room as they were received over the telephone from room 5, there was no unlawful "intercept,"
and tape recording was not inadmissible as a violation of this chapter prohibiting interception of
telephone calls. Williams v. State, Okla.Crim.App.1973, 507 P.2d 1339. Criminal Law
394.3; Telecommunications
1440
22. Viewing of E-mail
Assuming that former college employee inadvertently saw e-mail on computer screen and then
informed faculty members of its contents, faculty members did not violate Electronic
Communications Privacy Act (ECPA) in disclosing contents of such e-mail, as no unlawful
interception could have resulted from inadvertent glimpse of screen. Wesley College v. Pitts,
D.Del.1997, 974 F.Supp. 375, affirmed 172 F.3d 861. Telecommunications
1439
23. Voice mail recording
Employee's recording of messages left on his voice mail at work was not an "interception"
within meaning of federal wiretap statute; "interception" requires, at the least, involvement in
initial use of device contemporaneous with communication to transmit or preserve the
communication, and employee's use of handheld recorder to record voicemail messages did not
occur contemporaneously with leaving of the messages; moreover, persons leaving message
consented to recording of their message by fact that they left a message. Payne v. Norwest
Corp., D.Mont.1995, 911 F.Supp. 1299, affirmed in part, reversed in part 113 F.3d 1079.
Telecommunications
1437
24. Elements of offense
Liability under Federal Wiretap Act for disclosure or use of information requires proof that
disclosure or use was intentional, that information was obtained from intercepted
communication, and that defendant knew or should have known that interception was illegal.
Forsyth v. Barr, C.A.5 (Tex.) 1994, 19 F.3d 1527, certiorari denied 115 S.Ct. 195, 130 L.Ed.2d
127.
In civil action for violation of federal wiretapping law, plaintiff must demonstrate that
information used or disclosed came from intercepted communication, and sufficient facts
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 43
18 U.S.C.A. § 2511
concerning circumstances of interception such that defendant could, with presumed knowledge
of law, determine that interception was prohibited in light of law; this demonstration includes
showing that any statutory exceptions asserted by defendant do not, in fact, apply. Williams v.
Poulos, C.A.1 (Me.) 1993, 11 F.3d 271. Telecommunications
1436
The offense of electronic interception of oral communications includes four essential elements:
that interception was effected through the use of electronic or mechanical device, that it was
done willfully, that it was an interception of an "oral communication" and that the interception
occurred on premises of business the operation of which affected interstate commerce. U. S. v.
Duncan, C.A.4 (N.C.) 1979, 598 F.2d 839, certiorari denied 100 S.Ct. 148, 444 U.S. 871, 62
L.Ed.2d 96. Telecommunications
1436
Defense attorneys satisfied requirement for stating cause of action for Wiretap Action violation,
that interception of conversations be intentional, through allegations that Bureau of Prisons
(BOP) facility personnel intentionally trained video cameras on inmates while they were
conversing with their attorneys, despite claim that personnel believed cameras were far enough
removed to preclude reception of sound. Lonegan v. Hasty, E.D.N.Y.2006, 436 F.Supp.2d 419.
Telecommunications
1447
For interception of an oral communication to constitute an offense under this chapter, three
elements must be established: first, there must be a willful interception, second, the oral
communication must be uttered by a person exhibiting an expectation that communication would
be private and, third, communication must have been under circumstances justifying expectation
of privacy. U. S. v. Carroll, D.C.D.C.1971, 337 F.Supp. 1260. Telecommunications
1436
25. Interstate commerce
Finding of interstate nexus of telephone service lines in prosecution for willfully intercepting
endeavoring to intercept wire and oral communications sent over telephone was supported by
testimony of repair technician for telephone company that lines were owned by company and
that lines were considered common carrier communication lines. U.S. v. Deckard, C.A.8 (Mo.)
1987, 816 F.2d 426. Telecommunications
1453
Though this section prohibiting interception or endeavor to intercept wire or oral communication
makes no direct reference to interstate or intra-state character of communication, essential
element in criminal prosecution under this section, in the case of wire communication, is use in
interstate commerce. U. S. v. Burroughs, D.C.S.C.1974, 379 F.Supp. 736, appeal dismissed 510
F.2d 967, opinion withdrawn 537 F.2d 1156, affirmed 564 F.2d 1111. Telecommunications
1436
26. Knowledge
Knowledge or reason to know of illegality of wiretap is an element of offense of intentionally
using contents of wiretapped conversations in violation of Omnibus Control and Safe Streets
Act, and it was plain error to instruct jury that it could find guilt without finding defendant knew
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 44
18 U.S.C.A. § 2511
or had reason to know that recordings of telephone conversations were made in violation of Act
since instruction deprived defendant of his only defense. U.S. v. Wuliger, C.A.6 (Ohio) 1992,
981 F.2d 1497, rehearing denied 999 F.2d 1090, certiorari denied 114 S.Ct. 1293, 510 U.S. 1191,
127 L.Ed.2d 647, rehearing denied 114 S.Ct. 1872, 511 U.S. 1101, 128 L.Ed.2d 492. Criminal
Law
1038.2; Telecommunications
1436
For plaintiff to prevail on use or disclosure claim under federal wiretapping statutes, plaintiff
must prove that defendant knew or should have known that information was product of illegal
wiretap, and that defendant had knowledge of facts and circumstances surrounding interception
so that he knew or should have known that interception was prohibited under wiretapping
statutes. Thompson v. Dulaney, D.Utah 1993, 838 F.Supp. 1535, 139 A.L.R. Fed. 765.
Telecommunications
1436
Attorney for fire insurer was not liable in damages to insureds, under federal wiretap statute, for
having made use of allegedly illegally obtained tape recording in attempt to establish that
insureds had committed fraud in connection with their claim; attorney had no knowledge of
facts tending to show that tape recording was illegally obtained and federal court presiding over
insurance claim had allowed recording into evidence. Hamed v. Pfeifer, Ind.App. 3 Dist.1995,
647 N.E.2d 669. Attorney And Client
26
27. Intent
In order to find that defendant "intentionally" intercepted telephone conversations of third parties
without their knowledge or consent, jury must find that defendant acted deliberately and
purposefully, that is, defendant's act must have been product of defendant's conscious objective,
rather than product of mistake or accident. U.S. v. Townsend, C.A.2 (Vt.) 1993, 987 F.2d 927,
122 A.L.R. Fed. 825. Telecommunications
1437
Software developer did not violate Electronic Communications Privacy Act by receiving and
forwarding e-mails to its joint venturer, despite venturer's contention that developer had obtained
unauthorized access to its computers, where developer hosted and maintained various websites
and other data storage on its servers pursuant to parties' agreement, and there was no evidence
that e-mails were intended to be delivered to venturer without developer's involvement. Expert
Business Systems, LLC v. BI4CE, Inc., D.Md.2006, 411 F.Supp.2d 601. Telecommunications
1342
Internet monitoring company did not "intentionally intercept" electronic communication, in
violation of Electronic Communications Privacy Act (ECPA) when personal information of
Internet users was found in its computers as part of study of intra-industry website usage that was
to exclude personal information; there was no showing that accumulation of personal data was
objective of monitoring company, as required for ECPA violation, as only small amount of
personal data was found, programming errors by third parties caused accumulation of personal
information, and monitoring company had no knowledge that personal data was accumulated
until suit was filed. In re Pharmatrak, Inc. Privacy Litigation, D.Mass.2003, 292 F.Supp.2d 263.
Telecommunications
1440
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 45
18 U.S.C.A. § 2511
Court in its discretion declined to award monetary or statutory damages to satellite television
provider under Wiretap Act for defendant's use of pirate access devices, since defendant's
violation was de minimis; there was no interception or disclosure of provider's satellite
transmissions and defendant did not profit at expense of provider, instead, defendant obtained
pirate access devices to test security systems installed by his company. Directv, Inc. v. Griffin,
M.D.Fla.2003, 290 F.Supp.2d 1340. Telecommunications
1300
Criminal and civil liability is imposed under federal-wiretapping statute upon proof that
defendant intentionally intercepted oral communications at issue, without showing of disregard
of known legal duty, at least to those communications to which he was not party. Earley v.
Smoot, D.Md.1994, 846 F.Supp. 451. Telecommunications
1436
Liability for unlawful interception of telephone communications in violation of this chapter
cannot be established against any defendant without showing that he acted in intentional or
reckless disregard of his legal obligations. Citron v. Citron, S.D.N.Y.1982, 539 F.Supp. 621,
affirmed 722 F.2d 14, certiorari denied 104 S.Ct. 2350, 466 U.S. 973, 80 L.Ed.2d 823.
Telecommunications
1437
28. Purpose of interception or disclosure
For interception and disclosure of wire communications to be a crime, it must be done with bad
purpose, without justifiable excuse, stubbornly, obstinately or perversely. U.S. v. Ross, C.A.8
(Ark.) 1983, 713 F.2d 389. Telecommunications
1436
Bookie's practice of surreptitiously recording telephone conversations as means of keeping
business records for his unlawful gambling activities was for unlawful purpose, and thus was not
authorized under Title III of Omnibus Crime Control and Safe Streets Act. U.S. v. Lam,
N.D.Cal.2003, 271 F.Supp.2d 1182. Telecommunications
1437
Defendants' recording of contractual negotiations without knowledge and consent of plaintiffs,
before defendants brought racketeering suit against plaintiffs, did not violate New Jersey
Wiretapping and Electronic Surveillance Control Act or Federal Wiretap Act, where purpose of
interceptions was to prepare for potential lawsuit; even if vexatious or unfounded suit could
constitute "injurious act" under New Jersey act or "tortious act" under federal act, racketeering
suit, though later withdrawn, was neither vexatious nor unfounded. Betancourt v. Nippy, Inc.,
D.Puerto Rico 2001, 137 F.Supp.2d 27. Telecommunications
1436
Bank employee's recording of telephone conversations with bank customers and president of
another bank, without consent or knowledge of parties to the conversations, did not violate the
federal wiretapping statute, absent evidence that employee was motivated by criminal or tortious
purpose when he recorded conversations. Payne v. Norwest Corp., D.Mont.1995, 911 F.Supp.
1299, affirmed in part, reversed in part 113 F.3d 1079. Telecommunications
1437
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 46
18 U.S.C.A. § 2511
For purposes of statute permitting a party to an oral communication to intercept a conversation if
interception is not for purpose of committing any criminal or tortious act, the "tortious purpose"
must be a tortious purpose other than the mere intent to surreptitiously record an oral
conversation. Roberts v. Americable Intern. Inc., E.D.Cal.1995, 883 F.Supp. 499. Evidence
154
A narcotics conspiracy defendant's ex-wife's surreptitious tape recordings of discussions of their
drug dealing activities were not made for the purpose of committing a criminal or tortious act in
violation of the Federal Wiretapping Act; although ex-wife testified that she intended to use
recordings to blackmail the defendant, she was not a credible witness and she admitted that they
were never actually used in any unlawful scheme and that she had never actually threatened to
use them. U.S. v. Nietupski, C.D.Ill.1990, 731 F.Supp. 881, affirmed 33 F.3d 1454, rehearing
and suggestion for rehearing en banc denied, certiorari denied 115 S.Ct. 2286, 515 U.S. 1126,
132 L.Ed.2d 288. Telecommunications
1440
Statutory exemption permitting interception of a communication by a person not acting under
color of law unless such interception is for a criminal or tortious purpose was applicable to
audiotape and videotape made by accused's wife; although wife violated Hawaii criminal statute
by installing a recording device in their home without accused's consent, there was no evidence
that wife acted with a criminal or tortious purpose. U.S. v. Toy, 60 M.J. 598 (N.M.Ct.Crim.App.
2004). Military Justice
1080
29. While in transmission
Contemporaneous interception, that is, acquisition during "flight," is required to implicate
Wiretap Act with respect to electronic communications. U.S. v. Steiger, C.A.11 (Ala.) 2003, 318
F.3d 1039, certiorari denied 123 S.Ct. 2120, 538 U.S. 1051, 155 L.Ed.2d 1095.
Telecommunications
1436
No "interception" occurred in violation of Wiretap Act when employer's vice president gained
unauthorized access to secure website maintained by employee, which contained bulletins
critical of employer, employer's officers, and employee's incumbent union, inasmuch as vice
president acquired website's contents in their stored state, not during transmission. Konop v.
Hawaiian Airlines, Inc., C.A.9 (Cal.) 2002, 302 F.3d 868, certiorari denied 123 S.Ct. 1292, 537
U.S. 1193, 154 L.Ed.2d 1028. Telecommunications
1439
Bank's alleged disclosure of contents of electronic communications held in electronic storage
would not violate provision of Electronic Communication Privacy Act (ECPA) proscribing
divulging of contents of communication "while in transmission." Lopez v. First Union Nat.
Bank of Florida, C.A.11 (Fla.) 1997, 129 F.3d 1186, rehearing and suggestion for rehearing en
banc denied 141 F.3d 1191. Telecommunications
1436
Employer's copying of employee's electronic mail from his computer's hard drive was not
violative of statute prohibiting electronic interception of personal telephone calls without
warrant, absent showing that employee's electronic mail was obtained while it was being
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 47
18 U.S.C.A. § 2511
transferred. U.S. v. Simons, E.D.Va.1998, 29 F.Supp.2d 324, affirmed in part, remanded in part
206 F.3d 392, on remand 107 F.Supp.2d 703. Telecommunications
1440
30. Violations--Generally
Computer hacker's acquisition of information implicating defendant in sexual exploitation of
children and possession of child pornography through use of virus that enabled him to access and
download information stored on defendant's personal computer did not violate Wiretap Act,
since there was nothing to suggest that any information was obtained by hacker through
contemporaneous acquisition of electronic communications while in flight. U.S. v. Steiger,
C.A.11 (Ala.) 2003, 318 F.3d 1039, certiorari denied 123 S.Ct. 2120, 538 U.S. 1051, 155
L.Ed.2d 1095. Telecommunications
1439
Qualification contained in provision of Wiretap Act which delineates prohibited acts, under
which interception of a wire, oral, or electronic communication must be improper before the
intentional disclosure or use of the same may be found improper, applies only to interceptions
that are in violation of that provision, and does not apply to interceptions occurring under
separate provision of same section of Act, which lists situations in which an interception is not
unlawful. Cafarelli v. Yancy, C.A.6 (Mich.) 2000, 226 F.3d 492. Telecommunications
1436
Hotel telephone operator did not violate federal wiretapping law, so as to require suppression of
evidence leading to recovery of weapons used in murder and identification of defendant as
owner, by staying on line after inadvertently hearing occupant of hotel make reference to guns;
operator was concerned that there might be a danger to persons in hotel. Adams v. Sumner,
C.A.9 (Nev.) 1994, 39 F.3d 933. Criminal Law
394.3
There was no unlawful "interception" of security officer's conversations during period after
corporation which retained security firm turned off voice logger on telephone lines with
extensions in security office, even though, due to design defect, handset microphone remained
able to pick up ambient noise in guards' office and transmitted it to corporation's security control
room; corporation never acquired the "contents" of any conversations taking place in the guards'
office where corporation was not aware of the situation and there was no evidence that any of its
employees ever listened to or recorded any conversations, and corporation did not act
intentionally. Sanders v. Robert Bosch Corp., C.A.4 (S.C.) 1994, 38 F.3d 736, rehearing and
suggestion for rehearing en banc denied. Telecommunications
1437
Estranged husband's recitation of facts obtained from interception of wife's phone conversations
in divorce proceeding in attempt to establish marital misconduct by wife was violation of
Omnibus Crime Control and Safe Streets Act entitling wife to $100 in damages. Bess v. Bess,
C.A.8 (Mo.) 1991, 929 F.2d 1332, rehearing denied. Telecommunications
1437;
Telecommunications
1451
Violation of this section proscribing interception of wire or oral communications is the
interception itself, not the interception of particular material; it is not necessary to recovery of
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 48
18 U.S.C.A. § 2511
damages that violator hear anything in particular; she need do no more than listen. Watkins v.
L.M. Berry & Co., C.A.11 (Ala.) 1983, 704 F.2d 577. Telecommunications
1436
Even if house where government agent answered phone call from defendant's wife was under
defendant's dominion and control, this section did not bar government agent, an officer lawfully
on the premises, from answering the ringing telephone. U. S. v. Vadino, C.A.11 (Fla.) 1982, 680
F.2d 1329, rehearing denied 691 F.2d 977, certiorari denied 103 S.Ct. 1771, 460 U.S. 1082, 76
L.Ed.2d 344. Telecommunications
1437
Where testimony of antitrust plaintiff's officer that he recorded conversation with defendant's
employee to make sure that he had an accurate record thereof was uncontradicted, it could not be
said that conversation violated this chapter and even if officer, who testified that he erased tape
before listening to it and relied on his shorthand notes, may have erased tape because it would
have exposed any fabrication of the transcript this section does not punish erasing of tapes. ByProd Corp. v. Armen-Berry Co., C.A.7 (Ill.) 1982, 668 F.2d 956. Telecommunications
1440
Conduct of private detective who personally instructs and supervises individual in installation
and connection of wiretapping equipment for purpose of intercepting telephone communications
falls within interception language of this section. White v. Weiss, C.A.8 (Neb.) 1976, 535 F.2d
1067. Telecommunications
1437
Hotel licensee violated Electronic Communications Privacy Act (ECPA) by intercepting, or
endeavoring to intercept, licensor's electronic communications; internal electronic mail
communications of licensor would have been accessible to licensee if its unlawful attempts to
access the protected internal computer network of licensor were successful. Four Seasons Hotels
and Resorts B.V. v. Consorcio Barr, S.A., S.D.Fla.2003, 267 F.Supp.2d 1268, affirmed in part,
reversed in part 138 Fed.Appx. 297, 2005 WL 850304, rehearing and rehearing en banc denied
163 Fed.Appx. 849, 2005 WL 2487946. Telecommunications
1439
Reasonable official in position of warden of Bureau of Prisons (BOP) facility knew or should
have known that recording of conversations between defense attorneys and their inmate clients
violated their rights under Wiretap Act, precluding grant of qualified immunity in suit by defense
attorneys claiming violation of their civil rights and those of inmate clients; there were numerous
cases preserving privacy of attorney-client conversations in prison circumstances, and there were
regulations barring practice.
Lonegan v. Hasty, E.D.N.Y.2006, 436 F.Supp.2d 419.
Telecommunications
1441
Union member and union's executive board violated Federal Wiretap Act by tape recording
executive session of the Public Law Board and by using and disclosing the contents of the tape,
for purposes of request for permanent injunction, where member intentionally recorded meeting
without knowledge and consent of any of the parties, and member and executive board disclosed
contents of recording on numerous occasions with knowledge of how recording was made.
Earley v. Executive Bd. of United Transp. Union, N.D.Ohio 1996, 957 F.Supp. 997. Injunction
94; Telecommunications
1440
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 49
18 U.S.C.A. § 2511
Superiors of police officer who notified them that pen register could be converted into wiretap,
and police officer who allegedly set up authorized pen register and showed other officer how to
convert it into wiretap, did not unlawfully intercept, disclose, or misuse telephone conversations
within meaning of statute allowing civil action by person wiretapped. Falk v. County of Suffolk,
E.D.N.Y.1991, 781 F.Supp. 146. Telecommunications
1475
Monitoring or spot-checking of intercepted conversations to make determination if conversations
concerned illegal activity, in which event they could be intercepted, did not violate wiretap
statute or Fourth Amendment.
U.S. v. Gotti, E.D.N.Y.1991, 771 F.Supp. 535.
Telecommunications
1473
Simply taping telephone conversation is not violation of this section. Consumer Electronic
Products, Inc. v. Sanyo Elec., Inc., D.C.Colo.1983, 568 F.Supp. 1194. Telecommunications
1437
Corporation may not surreptitiously monitor conversations of its employees.
N.D.Ohio 1974, 383 F.Supp. 922. Telecommunications
1434
U. S. v. Perkins,
31. ---- Crimes, violations
Circumstances under which suppression of wiretap evidence is required by this chapter are not
necessarily the same as those on which criminal violation of wiretap statutes may be found. U.
S. v. Giordano, U.S.Md.1974, 94 S.Ct. 1820, 416 U.S. 505, 40 L.Ed.2d 341.
Allegations by a woman, that her boyfriend videotaped them having consensual sex when she
was a minor without her knowledge, and that the boyfriend then distributed the videotape to
others via e-mail without her consent, stated claim against boyfriend for violation of the Wiretap
Act's prohibition against intentional disclosure of intercepted oral communications. Doe v.
Smith, C.A.7 (Ill.) 2005, 429 F.3d 706. Telecommunications
1440
Conduct of defendant, who was charged with illegally intercepting the telephone calls of his
alleged former lover, came within the scope of the wire interception provisions of this section,
where defendant had never been married to the prosecutrix, where, at the time of the incident in
question, he was not a part of her household, and where he had no legal right to be on the
premises or to tape record her telephone conversations. U. S. v. Schrimsher, C.A.5 (Tex.) 1974,
493 F.2d 848. Telecommunications
1440
Sentencing guidelines range of six to 12 months for four counts of wire interception was not
sufficient to protect victim and public, promote respect for the law, and deter defendant, and
thus, 36-month sentence was appropriate; in recording his wife's telephone calls and hiring
someone to plant cocaine or methamphetamine in her vehicle so that she would be falsely
arrested and convicted, defendant demonstrated a cold-blooded determination to do whatever it
took to harm wife and wrest custody of their children from her, and defendant acted with flagrant
disrespect for the law that went beyond wire interception counts. U.S. v. Reithemeyer,
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 50
18 U.S.C.A. § 2511
E.D.Ark.2006, 426 F.Supp.2d 893. Telecommunications
1453
32. ---- Dismissal of prosecution, violations
Violation of Title III of Omnibus Crime Control and Safe Streets Act would not justify dismissal
of indictment; dismissal would have to be based on governmental misconduct over and above
Title III violation. U.S. v. Noriega, S.D.Fla.1991, 764 F.Supp. 1480. Criminal Law
36.6
33. ---- Injunction, violations
Union member who allegedly surreptitiously taped proceedings of executive session of public
law board would be enjoined from presenting transcribed tape in union disciplinary proceeding
brought against union officer who participated in session; officer would be irreparably harmed
by use of tape, taping arguably violated federal-wiretapping statute, and public interest in
punishing misbehaving union officials was outweighed by public interest in protecting those
officials from use of their illegally intercepted conversations. Earley v. Smoot, D.Md.1994, 846
F.Supp. 451. Injunction
94
34. ---- Quashing of subpoena, violations
Affidavit in which witness who had been subpoenaed by the grand jury and his attorneys stated
that they had heard strange clicks and beeps during telephone conversation, which stated the
dates of those conversations and the persons to whom the calls had been made on those dates,
and which stated that, on one occasion, person placing a call had heard conversation on the line
even before the caller had said "hello" made a colorable showing of illegal surveillance sufficient
to require government to respond. Matter of Archuleta, S.D.N.Y.1977, 434 F.Supp. 325. Grand
Jury
36.9(2)
35. ---- Suppression of evidence, violations
Assuming that cellular phone data revealing defendant's general location while travelling on
public highway was illegal "electronic communication" within meaning of Omnibus Crime
Control and Safe Streets Act, suppression of such data in drug trial was not permissible remedy
under Act, in that Act provided only for criminal penalties and civil suits with respect to
electronic communications. U.S. v. Forest, C.A.6 (Ohio) 2004, 355 F.3d 942, rehearing denied,
certiorari denied 125 S.Ct. 174, 543 U.S. 856, 160 L.Ed.2d 93, vacated 125 S.Ct. 1050, 543 U.S.
1100, 160 L.Ed.2d 1001, on remand 2005 WL 2133606, post-conviction relief denied 2006 WL
414056, vacated 2006 WL 1348154. Criminal Law
394.3
Wiretap Act provides no basis to suppress unlawfully intercepted electronic communications.
U.S. v. Steiger, C.A.11 (Ala.) 2003, 318 F.3d 1039, certiorari denied 123 S.Ct. 2120, 538 U.S.
1051, 155 L.Ed.2d 1095. Criminal Law
394.3; Telecommunications
1434
Erroneous admission of tape recording of telephone conversation between arrestee and
defendant, which Government failed to establish was obtained with requisite consent, was not
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 51
18 U.S.C.A. § 2511
harmless. U.S. v. Gomez, C.A.5 (Tex.) 1990, 900 F.2d 43, rehearing denied. Criminal Law
1169.1(10)
To be admissible, tape recordings of conversations of a defendant need only satisfy this chapter
and requirements of U.S.C.A. Const. Amend. 4. U. S. v. Zemek, C.A.9 (Wash.) 1980, 634 F.2d
1159, certiorari denied 101 S.Ct. 1359, 450 U.S. 916, 67 L.Ed.2d 341, certiorari denied 101 S.Ct.
1525, 450 U.S. 985, 67 L.Ed.2d 821, certiorari denied 101 S.Ct. 3031, 452 U.S. 905, 69 L.Ed.2d
406. Criminal Law
438.1
Where, although telephone company acted legally in obtaining some information by
electronically surveilling lines of suspected "blue box" user, surveillance also produced more
information than telephone company needed to protect its interests and was, to that extent,
improper, reasonable and necessary interceptions and disclosures were not required to be
suppressed in suspect's later prosecution as "fruits" of illegal surveillance. U. S. v. Auler, C.A.7
(Wis.) 1976, 539 F.2d 642, certiorari denied 97 S.Ct. 1132, 429 U.S. 1104, 51 L.Ed.2d 555.
Criminal Law
394.3
In prosecution for conspiracy to import cocaine and for receiving and concealing cocaine, this
chapter did not require exclusion, on theory that intercepted telephone conversations traveled in
part over United States communication system, of evidence which was obtained as result of
wiretaps which were placed by Canadian police without judicial authorization and which were
not initiated or controlled by United States government. U. S. v. Cotroni, C.A.2 (N.Y.) 1975,
527 F.2d 708, certiorari denied 96 S.Ct. 2226, 426 U.S. 906, 48 L.Ed.2d 830. Criminal Law
394.2(2)
Where Canadian wiretaps were being used to gather information about gambling and Canadian
officials in good faith discarded those tapes which were noninformative, and defendants made no
showing that those which were destroyed were relevant to alleged drug conspiracy or contained
any exculpatory material, failure of Canadian police to keep complete transcripts of thousands of
conversations recorded over three-year period did not require exclusion of 32 which were
introduced in prosecution for conspiracy to import cocaine and for receiving, concealing and
facilitating transportation and concealment of cocaine. U. S. v. Cotroni, C.A.2 (N.Y.) 1975, 527
F.2d 708, certiorari denied 96 S.Ct. 2226, 426 U.S. 906, 48 L.Ed.2d 830. Criminal Law
394.3
Where defendant used coded language in his dealings with undercover agent, agents executing
wiretap authorization suspected that intercepted conversations might likewise contain hidden
references to narcotics, agent terminated at least 15 gambling-related interceptions after
ascertaining that calls would not turn to discussion of narcotics, and many of gambling
conversations intercepted were between same suspects under investigation for narcotics
trafficking, agents made a good-faith attempt to minimize nonpertinent interceptions and
interception of 84 gambling conversations out of a total of 454 conversations intercepted on
defendant's telephone did not constitute a failure to minimize interception of nonpertinent
telephone conversations which would require suppression. U. S. v. Armocida, C.A.3 (Pa.) 1975,
515 F.2d 49, certiorari denied 96 S.Ct. 111, 423 U.S. 858, 46 L.Ed.2d 84. Criminal Law
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 52
18 U.S.C.A. § 2511
394.3
Where telephone company is authorized to monitor phone and to divulge existence of illegal
calls and fact that they were completed (the salutations), such authorized disclosures are
admissible in court. U. S. v. Clegg, C.A.5 (Tex.) 1975, 509 F.2d 605. Criminal Law
394.3
Where government undercover agent made warrantless recording of telephone conversation
between himself and defendant, defendant's expectations of privacy were not justified or
protected by U.S.C.A. Const. Amend. 4 and recording was admissible as evidence during
prosecution of defendant on drug-related charges. U. S. v. Santillo, C.A.3 (Pa.) 1975, 507 F.2d
629, certiorari denied 95 S.Ct. 1960, 421 U.S. 968, 44 L.Ed.2d 457. Criminal Law
394.3
For violation of this chapter to require suppression of intercepted communication, procedure in
question must be a central or functional safeguard in statutory scheme to prevent abuses and
purpose which particular procedure was designed to accomplish must not have been satisfied in
spite of the violation; another factor, which may have bearing on the issue, is whether statutory
requirement was deliberately ignored and, if so, whether there was any tactical advantage to be
gained thereby. U. S. v. Chun, C.A.9 (Hawai'i) 1974, 503 F.2d 533, on remand 386 F.Supp. 91.
Criminal Law
394.3
Neither state nor federal law required suppression with respect to intercepted telephonic
conversations on ground that government failed to provide an inventory of intercepted phone
calls within statutory time period and that tapes were not immediately sealed after eavesdropping
ceased, where state court had authorized delay in filing inventory in order to protect secrecy of
ongoing investigations and defendants had shown no prejudice resulting from either delay. U. S.
v. Capra, C.A.2 (N.Y.) 1974, 501 F.2d 267, certiorari denied 95 S.Ct. 1424, 420 U.S. 990, 43
L.Ed.2d 670. Criminal Law
394.3
Where tape recording of conversation between first defendant and co-participant implicated first
defendant only and trial court instructed that the conversation was admissible only against first
defendant, second defendant was not prejudiced by the admission of the taped conversation. U.
S. v. Rangel, C.A.5 (Tex.) 1974, 488 F.2d 871, certiorari denied 94 S.Ct. 2386, 416 U.S. 984, 40
L.Ed.2d 760. Criminal Law
673(4)
Where the Government had an independent source for evidence of defendant's involvement in
importation and conspiracy to possess heroin, evidence of defendant's meeting with person who
imported the heroin and of what transpired thereafter was properly admitted even if there was a
wrongful use of wire tap from which the Government gained some information, where contents
of conversation and of bugged telephone conversation were not incriminating or offered in
evidence. U. S. v. San Martin, C.A.2 (N.Y.) 1972, 469 F.2d 5, certiorari denied 93 S.Ct. 1388,
410 U.S. 934, 35 L.Ed.2d 598. Criminal Law
394.3
Although unauthorized interception of electronic communications is unlawful under Federal
Wiretap Act, there is no provision for suppression of intercepted electronic communications
under Act. U.S. v. Jones, D.Utah 2005, 364 F.Supp.2d 1303. Telecommunications
493
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 53
18 U.S.C.A. § 2511
Recorded telephone conversations between suspected drug trafficker and government informant
was not required to be suppressed, under Fourth Amendment or federal statute, when informant
consented to recording.
U.S. v. Dixon, S.D.Ohio 2002, 247 F.Supp.2d 926.
Telecommunications
1440
Violations of wiretap statutes, which neither directly nor substantially implement Congress'
expressed desire to restrain law enforcement's resort to or judicial authorization of wiretap
procedures, are not violations which demand finding that communications intercepted thereunder
were unlawfully intercepted and therefore must be suppressed. U.S. v. Kirkland, M.D.Ga.1989,
705 F.Supp. 1572, affirmed 893 F.2d 1342. Criminal Law
394.3
Where government witness received telephone call at his residence, witness recorded such
telephone call on his own tape recorder and provided recording to agents of Bureau of Alcohol,
Tobacco and Firearms, telephonic communication was not acquired illegally and it would not be
suppressed. U. S. v. Fears, E.D.Tenn.1978, 450 F.Supp. 249. Criminal Law
394.3
Not every failure to comply fully with any requirement for a wiretap renders interception of wire
or oral communications "unlawful," but, rather, suppression is required only for failure to satisfy
any of those statutory requirements that directly and substantially implement congressional
intention to limit use of intercept procedures to those situations clearly calling for employment of
such extraordinary investigative device. U. S. v. Aloi, E.D.N.Y.1977, 449 F.Supp. 698.
Criminal Law
394.3
36. Use or disclosure of information
Liability under Title III for use and disclosure of information obtained from contents of
intercepted communications requires more than mere proof of intentional conduct, which is
requirement for liability for intercepting or procuring another to intercept communications; to
establish liability for use or disclosure, plaintiff must demonstrate that defendant knew that
information used or disclosed came from intercepted communication, and sufficient facts
concerning circumstances of interceptions such that defendant could, with presumed knowledge
of law, determine that interception was prohibited in light of Title III. Thompson v. Dulaney,
C.A.10 (Utah) 1992, 970 F.2d 744, on remand 838 F.Supp. 1535, 139 A.L.R. Fed. 765.
Telecommunications
1436
Statement made by former wife to her children and other relatives, that she was having an affair
and that her former husband had recorded some of her conversations with her boyfriend, did not
constitute public disclosure of contents of tape-recorded conversation with her boyfriend
precluding her suit against former husband for damages arising out of allegedly illegal
procurement of that recording. Fultz v. Gilliam, C.A.6 (Tenn.) 1991, 942 F.2d 396.
Telecommunications
1436
Use of interception of wire, oral, or electronic communication for criminal or tortious purpose is
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 54
18 U.S.C.A. § 2511
not prerequisite to liability under Omnibus Crime Control and Safe Streets Act. Stockler v.
Garratt, C.A.6 (Mich.) 1990, 893 F.2d 856, rehearing denied. Telecommunications
1453
Letter from attorney representing father sent to attorney representing son that contained a veiled
threat to use phone conversations of son, which were secretly taped by father, in litigation
involving the dissolution of a family business, constituted a "use" in violation of statute
prohibiting use of improperly intercepted wire, oral, or electronic communications. Leach v.
Bryam, D.Minn.1999, 68 F.Supp.2d 1072. Telecommunications
1437
Actions of television station and reporter, in copying and transcribing tape recordings of illegally
intercepted telephone calls did not constitute "use" of illegally intercepted communications
within meaning of wiretap statute. Peavy v. Harman, N.D.Tex.1999, 37 F.Supp.2d 495, affirmed
in part, vacated in part and reversed in part 221 F.3d 158, certiorari denied 121 S.Ct. 2191, 532
U.S. 1051, 149 L.Ed.2d 1023. Telecommunications
1437
Individual's conduct in merely listening to allegedly illegally-obtained audiotape of private
telephone conversations did not amount to "use" of such communication in violation of Omnibus
Crime Control and Safe Streets Act of 1968. Fields v. Atchison, Topeka, and Santa Fe Ry. Co.,
D.Kan.1997, 985 F.Supp. 1308, opinion withdrawn in part on reconsideration 5 F.Supp.2d 1160.
Telecommunications
1437
Where telephone company lawfully monitored employee's telephone calls at "testdesk," within
meaning of this chapter, any disclosure of such conversations was not a violation of the Act since
disclosure, to be unlawful thereunder, must be of information which was unlawfully intercepted.
Simmons v. Southwestern Bell Tel. Co., W.D.Okla.1978, 452 F.Supp. 392, affirmed 611 F.2d
342. Telecommunications
1437
Defense counsel who would review tapes of conversations and would produce them pursuant to
order of court could not be held to violate provisions of this chapter relating to disclosure of
intercepted communications. Philadelphia Housing Authority v. American Radiator & Standard
Sanitary Corp., E.D.Pa.1968, 291 F.Supp. 247. Telecommunications
1478
37. Procuring others
There is no private civil action for violation of federal wiretap statute's prohibition on procuring
of other persons to intercept wire communications, as statute expressly provided for civil action
only in cases of interception, disclosure, or intentional use of such communications. Peavy v.
WFAA-TV, Inc., C.A.5 (Tex.) 2000, 221 F.3d 158, certiorari denied 121 S.Ct. 2191, 532 U.S.
1051, 149 L.Ed.2d 1023. Telecommunications
1443
Plaintiff failed to state a claim against computer manufacturer for violations of Computer Fraud
and Abuse Act, Stored Wire and Electronic Communications Act, and Federal Wiretap Act
under theory of vicarious liability through ratification, where plaintiff merely alleged that
unknown individual in his capacity as employee or agent of computer manufacturer initiated,
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 55
18 U.S.C.A. § 2511
directed and managed unlawful attempts to gain access to plaintiff's computer server; plaintiff
failed to plead that manufacturer tacitly knew and approved of the conduct allegedly engaged in
by its employees or agents. Butera & Andrews v. International Business Machines Corp.,
D.D.C.2006, 456 F.Supp.2d 104. Telecommunications
1439
Persons who allegedly engaged in business of illegally modifying radio units, for a fee, to allow
unauthorized listeners to obtain and enjoy programming broadcast by radio stations on subcarrier
frequencies that could not be received by general public would not be considered to have
"procured others" to intercept radio stations' transmissions, so as to support civil recovery by
station owner operator for violation of Communications Act section prohibiting intercepting or
procuring others to intercept, wire, oral, or electronic communications. Greek Radio Network of
America, Inc. v. Vlasopoulos, E.D.Pa.1990, 731 F.Supp. 1227. Telecommunications
1436
38. Cellular providers
Electronic Communications Privacy Act does not impose general duty upon cellular phone
service provider to encrypt or otherwise render transmissions incapable of interception. Shubert
v. Metrophone, Inc., C.A.3 (Pa.) 1990, 898 F.2d 401. Telecommunications
1057
39. Defenses
Statutory good faith defense to Wiretap Act offense did not apply to attorney who represented
husband in divorce action and used contents of tape recorded telephone calls from marital
residence in divorce action. U.S. v. Wuliger, C.A.6 (Ohio) 1992, 981 F.2d 1497, rehearing
denied 999 F.2d 1090, certiorari denied 114 S.Ct. 1293, 510 U.S. 1191, 127 L.Ed.2d 647,
rehearing denied 114 S.Ct. 1872, 511 U.S. 1101, 128 L.Ed.2d 492. Telecommunications
1440
Congress did not intend, by making otherwise lawful private interception unlawful if interception
is made for purpose of committing any criminal act, to shield very people who committed
unlawful interceptions from consequences of their wrongdoing, and thus defendants, who made
tapes of conversations to prevent disagreements with bettors over amount of wagers, waived
their right of privacy in these illegal gambling records by their deliberate act of causing them to
be recorded. U.S. v. Underhill, C.A.6 (Tenn.) 1987, 813 F.2d 105, certiorari denied 107 S.Ct.
2484, 482 U.S. 906, 96 L.Ed.2d 376, certiorari denied 107 S.Ct. 3268, 483 U.S. 1022, 97
L.Ed.2d 766, certiorari denied 108 S.Ct. 141, 484 U.S. 846, 98 L.Ed.2d 98, certiorari denied 108
S.Ct. 81, 484 U.S. 821, 98 L.Ed.2d 43. Telecommunications
1440
Divorced wife's alleged good faith reliance on advice of attorneys in taping former husband's
conversations with their children was not defense to husband's claim under federal wiretapping
statutes. Thompson v. Dulaney, D.Utah 1993, 838 F.Supp. 1535, 139 A.L.R. Fed. 765.
Telecommunications
1441
Good faith reliance on court warrant or order is complete defense under wiretap statute.
Manufacturas Intern., Ltda v. Manufacturers Hanover Trust Co., E.D.N.Y.1992, 792 F.Supp.
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 56
18 U.S.C.A. § 2511
180, affirmed 47 F.3d 1159, certiorari denied 115 S.Ct. 2557, 515 U.S. 1132, 132 L.Ed.2d 811.
Telecommunications
1441
Limited disclosure of contents of illegally intercepted wire and oral communications in order to
prosecute the interceptors would not constitute an invasion of privacy of type permitting
prohibition of such disclosure. U. S. v. Liddy, D.C.D.C.1973, 354 F.Supp. 217, affirmed 509
F.2d 428, 166 U.S.App.D.C. 95, certiorari denied 95 S.Ct. 833, 420 U.S. 911, 42 L.Ed.2d 842.
Constitutional Law
82(7); Criminal Law
394.3
40. Exceptions--Generally
As long as the guardian has a good faith, objectively reasonable basis for believing that it is
necessary and in the best interest of the child to consent on behalf of his or her minor child to the
taping of telephone conversations, the guardian may vicariously consent on behalf of the child to
the recording; such vicarious consent will be exempt from liability under federal wiretapping
statute, pursuant to the consent exception. Pollock v. Pollock, C.A.6 (Ky.) 1998, 154 F.3d 601,
rehearing and suggestion for rehearing en banc denied. Child Custody
101
Business extension exception to federal wiretap statute did not permit State Department officials
and employees to secretly monitor conversation between Acting Assistant Secretary of State for
Legislative Affairs and Assistant Secretary of State for Consular Affairs, concerning
investigation into presidential candidate's passport; there was no reason presented as to need for
secret monitoring nor was it shown to be routine. Berry v. Funk, C.A.D.C.1998, 146 F.3d 1003,
331 U.S.App.D.C. 62. Telecommunications
1440
Assistant university basketball coach was exempt from liability for violating federal wiretap
statute by recording telephone conversations with high school recruit in absence of evidence that
coach intended to commit tort against recruit or committed any criminal act. Thomas v. Pearl,
C.A.7 (Ill.) 1993, 998 F.2d 447, rehearing denied, certiorari denied 114 S.Ct. 688, 510 U.S.
1043, 126 L.Ed.2d 655. Telecommunications
1437
Custodial parent's interception of telephone conversations of her minor son within her home,
without son's knowledge or consent, was not prohibited by Title III of Omnibus Crime Control
and Safe Streets Act. Newcomb v. Ingle, C.A.10 (Okla.) 1991, 944 F.2d 1534, certiorari denied
112 S.Ct. 903, 502 U.S. 1044, 116 L.Ed.2d 804, rehearing denied 112 S.Ct. 1284, 503 U.S. 915,
117 L.Ed.2d 509. Telecommunications
1440
Common-law privileges protecting statements made to law enforcement agents in furtherance of
criminal investigation will not be recognized as exception to Omnibus Crime Control and Safe
Streets Act, which prohibits intentional disclosure of contents of wire communication that was
obtained in violation of Act. Rodgers v. Wood, C.A.7 (Wis.) 1990, 910 F.2d 444, rehearing
denied 914 F.2d 260. Telecommunications
1440
Conversation on telephone extension was not personal call, but, rather, occurred during office
hours, between employees, where specialized extension connected principal office to substation
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 57
18 U.S.C.A. § 2511
and concerned remarks about supervisory employees in their capacity as supervisors; therefore,
interception of conversation fell within telephone extension exception to civil liability for
interception of wire or oral communications. Epps v. St. Mary's Hosp. of Athens, Inc., C.A.11
(Ga.) 1986, 802 F.2d 412, rehearing denied 807 F.2d 999. Telecommunications
1440
Consensual interception exception to statutory requirement that officers obtain prior judicial
authorization for interception of wire or oral communications existed, where officer answered
ringing telephone while lawfully on defendant's premises. U.S. v. Passarella, C.A.6 (Tenn.)
1986, 788 F.2d 377. Telecommunications
1462
Telephone lineman's interception of conversation while attempting to check noise level on line
was within exception to federal wiretapping law. U.S. v. Ross, C.A.8 (Ark.) 1983, 713 F.2d 389.
Telecommunications
1437
Only if communication is one that exhibits required expectations of privacy does exception for
Federal Communications Commission, under subsec. (2) (b) of this section specifically allowing
commission employees to monitor communications in normal course of their employment, come
into play. U. S. v. Rose, C.A.1 (Mass.) 1982, 669 F.2d 23, certiorari denied 103 S.Ct. 63, 459
U.S. 828, 74 L.Ed.2d 65. Telecommunications
1434
This section providing that it shall not be unlawful for an operator of a switchboard to intercept a
wire communication in normal course of his employment is obviously intended to allow
telephone company to intercept and disclose calls as necessary protection of its equipment and
rights. Campiti v. Walonis, C.A.1 (Mass.) 1979, 611 F.2d 387. Telecommunications
1437
Former employer, being sued for allegedly willfully and unlawfully intercepting wire and oral
communications in violation of this chapter, came within exception of this section, where
employer's request that telephone company install monitoring device, which would permit
employer to listen in on telephone conversations between its employees and its customers, was
part of service rendered by phone company on request, reason for installation was management's
concern over abusive language by irate customers when called upon to pay their bills, coupled
with possible need to give better training and supervision to employees dealing with public, and
installation was not done surreptitiously. James v. Newspaper Agency Corp., C.A.10 (Utah)
1979, 591 F.2d 579. Telecommunications
1441
This section contains no implied exception for electronic surveillance conducted for purposes of
marital litigation; hence, husband, who suspected wife of infidelity and who intercepted her
telephone conversations, was not immune from prosecution under the statute, especially since
surveillance was conducted from outside the residence where the telephone was located, spouses
had separated prior to surveillance, husband had moved out of house and at time of surveillance
was under restraining order preventing him from "coming about" the wife. U. S. v. Jones, C.A.6
(Tenn.) 1976, 542 F.2d 661.
Party exemption from prohibition against interception of wire or oral communication is
inapplicable only if the interception is for the purpose of criminally committing any criminal or
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 58
18 U.S.C.A. § 2511
tortious act, and the exemption applies even if the purpose of the conversation is criminal as long
as the purpose of the recording is not. U. S. v. Turk, C.A.5 (Fla.) 1976, 526 F.2d 654, rehearing
denied 529 F.2d 523, certiorari denied 97 S.Ct. 74, 429 U.S. 823, 50 L.Ed.2d 84.
Telecommunications
1440
Provision that it shall not be unlawful for employee of communications common carrier to
intercept, disclose or use communication in normal course of employment while engaged in any
activity which is a necessary incident to the rendition of service is intended as an exception to
provisions of this section. U. S. v. Freeman, C.A.7 (Ind.) 1975, 524 F.2d 337, certiorari denied
96 S.Ct. 1126, 424 U.S. 920, 47 L.Ed.2d 327. Telecommunications
1434
Journalists who intercept a communication for criminal or tortious purposes are not exempt from
liability under the Federal Wiretap Statute simply because the criminal or tortious conduct took
place in the context of a media investigation, and are subject to the provisions of the statute to
the same extent as parties that are not affiliated with the media. Vazquez-Santos v. El Mundo
Broadcasting Corp., D.Puerto Rico 2002, 219 F.Supp.2d 221. Telecommunications
1441
The plain language and legislative history of the Federal Wiretapping Statute evince no
Congressional intent to exempt domestic relations from its scope. Campbell v. Price,
E.D.Ark.1998, 2 F.Supp.2d 1186. Telecommunications
1440
Client's communications concerning his actual installation of wiretapping device, his recordings
of conversations, and his disclosure of intercepted conversations to his attorneys, as opposed to
any subsequent use of intercepted conversations or cover-up of alleged violations, were
privileged in civil action arising from allegedly illegal wiretaps, even though client's
communications with attorneys about using information from intercepted conversations to
prepare and prosecute lawsuit fell within crime-fraud exception to attorney-client privilege.
Sound Video Unlimited, Inc. v. Video Shack Inc., N.D.Ill.1987, 661 F.Supp. 1482. Witnesses
201(2)
Where police officer who used monitored telephone at police station to make private, personal
telephone call denied any knowledge that line he used was being recorded, exception to this
section governing interception of communications which allows interception of communications
if one party to communication has given prior consent was inapplicable. Jandak v. Village of
Brookfield, N.D.Ill.1981, 520 F.Supp. 815. Telecommunications
1440
This section providing exemption from liability for interception of oral communications by
operator of switchboard or officer, employee, or agent of any communication common carriers
whose facilities are used in transmission of wire communication, was intended to permit
telephone companies to engage in reasonable activities to protect their property through limited
monitoring of lines of suspected illegal users. Campiti v. Walonis, D.C.Mass.1978, 453 F.Supp.
819, affirmed 611 F.2d 387. Telecommunications
1441
Where telephone company maintained testboard where trouble reports from customers were
handled and use of board by employees was monitored by supervisors for purpose of service
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 59
18 U.S.C.A. § 2511
quality control checks and, in plaintiff employee's case, for purpose of preventing his persistent
use of testboard phone for personal calls, against which he had been warned several times,
company's legitimate interest in maintaining quality control and availability of lines brought its
monitoring activities within exception from prohibition against interception of wire
communications, contained in this section. Simmons v. Southwestern Bell Tel. Co.,
W.D.Okla.1978, 452 F.Supp. 392, affirmed 611 F.2d 342. Telecommunications
1437
Homeowners could not amend trespass complaint to allege violation of wiretapping statutes by
television broadcaster, where broadcaster's employee purportedly entered home as veterinary
student and secretly videotaped events in home which were subsequently broadcast, as
broadcaster intercepted communication for commercial purposes, not purpose of committing
tortious act or trespass. Copeland v. Hubbard Broadcasting, Inc., Minn.App.1995, 526 N.W.2d
402, review denied. Pleading
248(9); Telecommunications
1447
41. ---- Authorization for interception, exceptions
Drug Enforcement Administration regulations did not require, and did not have to require,
advance approval of monitoring and recording of telephone conversations with consent of one
party, and thus DEA did not violate either its own regulations or Attorney General's
memorandum to heads of executive departments and agencies by recording telephone
conversations between defendant and informant or agent without defendant's knowledge but with
knowledge and consent of other party to conversation. U. S. v. Jernigan, C.A.9 (Or.) 1978, 582
F.2d 1211, certiorari denied 99 S.Ct. 592, 439 U.S. 991, 58 L.Ed.2d 666. Telecommunications
1462
Even if telecommunications provider's customers were required to plead affirmatively that
provider did not receive a certification from government authorizing it to conduct electronic
surveillance in support of their action based on provider's alleged participation in alleged
warrantless surveillance programs, customers sufficiently alleged that provider acted outside
scope of any government certification it might have received, where they alleged that
communications were intercepted without judicial or other lawful authorization. Hepting v. AT
& T Corp., N.D.Cal.2006, 439 F.Supp.2d 974. Telecommunications
1447
Intermediary banks which seized electronic funds transfers and turned them over to clerk of court
pursuant to Attorney General's orders in forfeiture proceedings were not liable to claimants of
funds, even if wiretap statute applied, where funds were already forfeited to government as result
of their illegal genesis in money laundering scheme, and banks had no independent intention in
seizing funds other than to follow directions of United States Attorney; banks had no liability
where they intentionally acted within their perceived legal obligations by following instructions
of United States Attorney and court. Manufacturas Intern., Ltda v. Manufacturers Hanover Trust
Co., E.D.N.Y.1992, 792 F.Supp. 180, affirmed 47 F.3d 1159, certiorari denied 115 S.Ct. 2557,
515 U.S. 1132, 132 L.Ed.2d 811. Banks And Banking
188.5; Telecommunications
1441
Contrary to defense contention that illegal electronic listening device had been placed in
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 60
18 U.S.C.A. § 2511
defendant's bedroom, evidence established that bug had been placed in base of telephone with
standard wall cord connecting it to bug jack, that, for his own convenience, defendant had kept
telephone on the middle-to-upper steps of open stairway which was no more than a few feet from
defendant's bed, and that telephone remained in living room in compliance with order
authorizing placing of bugs there. U. S. v. Williams, S.D.N.Y.1981, 527 F.Supp. 859.
Telecommunications
1472
Telephone company had statutory authority to conduct nonrandom, nonservice control
monitoring to determine whether "blue box" was being used, and could disclose information
obtained to government agents, and information could be used by government agents to support
search warrant. U. S. v. Freeman, S.D.Ind.1974, 373 F.Supp. 50, affirmed 524 F.2d 337,
certiorari denied 96 S.Ct. 1126, 424 U.S. 920, 47 L.Ed.2d 327. Searches And Seizures
120;
Telecommunications
1440
42. ---- Party to communication, exceptions
Whether government informant who was posing as drug trafficker was characterized as
government agent or as cooperating witness, his conversations with defendant came within
exception to Omnibus Crime Control and Safe Streets Act permitting taping of a conversation
without approval if a party to the conversation gave prior consent, and thus, Act was not violated
by electronic recording of defendant's conversation with informant. U.S. v. Diaz-Diaz, C.A.1
(Puerto Rico) 2005, 433 F.3d 128, certiorari denied 126 S.Ct. 2043. Telecommunications
1440
Section of federal wiretapping statute providing that person may intercept wire, oral, or
electronic communications to which that person is party, unless communication is intercepted for
purpose of committing any criminal or tortious act, does not contain blanket exemption for
journalists. Sussman v. American Broadcasting Companies, Inc., C.A.9 (Cal.) 1999, 186 F.3d
1200, certiorari denied 120 S.Ct. 970, 528 U.S. 1131, 145 L.Ed.2d 841. Telecommunications
1440
Omnibus Crime Control and Safe Streets Act section making it unlawful for private person to
intercept wire or oral communication when that person is party to communication was not
intended to protect wrongdoers whose criminal activity is tape recorded by their own
confederates. Traficant v. C.I.R., C.A.6 1989, 884 F.2d 258. Telecommunications
1440
Both U.S.C.A. Const. Amend. 4, by judicial interpretation, and this chapter, and Safe Streets Act,
expressly, allow undercover agent to record his conversations with suspect and allow
Government to introduce such recordings in evidence. U.S. v. Eschweiler, C.A.7 (Ill.) 1984, 745
F.2d 435, certiorari denied 105 S.Ct. 1188, 469 U.S. 1214, 84 L.Ed.2d 334. Criminal Law
394.3; Telecommunications
1440
Regardless of whether microphone was more sensitive than human ear, Government's "wiring"
of defendant's associate to record incriminating conversations in defendant's home relating to
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 61
18 U.S.C.A. § 2511
illegal drug transactions did not violate defendant's rights under U.S.C.A. Const.Amend. 4,
where associate volunteered for such activity, and only conversations used as evidence against
defendant were conversations which associate could and did hear. U.S. v. Eschweiler, C.A.7
(Ill.) 1984, 745 F.2d 435, certiorari denied 105 S.Ct. 1188, 469 U.S. 1214, 84 L.Ed.2d 334.
Telecommunications
1440
Government's alleged failure to prove that either party to tape-recorded telephone conversation
consented to interception was irrelevant to determining admissibility of tape recording where
interceptor was party to communication. U.S. v. Truglio, C.A.4 (W.Va.) 1984, 731 F.2d 1123,
certiorari denied 105 S.Ct. 197, 469 U.S. 862, 83 L.Ed.2d 130. Criminal Law
394.3
A person not acting under color of state law may, without violating this chapter, intercept a
telephone call to which he is a party unless purpose of the interception is to commit an act that is
criminal or tortious under federal or state law or any other injurious act. By-Prod Corp. v.
Armen-Berry Co., C.A.7 (Ill.) 1982, 668 F.2d 956. Telecommunications
1440
No warrant was required to record conversations between defendants and government informant
or government agents, since either the informant or an agent was a party to or consented to the
recording of the conversations at issue. U. S. v. Howell, C.A.5 (Ga.) 1981, 664 F.2d 101,
certiorari denied 102 S.Ct. 1641, 455 U.S. 1005, 71 L.Ed.2d 873. Telecommunications
1462
Sound recording made by government agent who is party to recorded conversation or sound
recording made by government agent with permission of one of parties to recorded conversation
is not violation of U.S.C.A. Const. Amend. 4. U. S. v. King, C.A.9 (Mont.) 1978, 587 F.2d 956.
Telecommunications
1440
There is no violation of section 605 of Title 47 if the interception was authorized by a party to
the conversation. U.S. v. Hodge, C.A.6 (Mich.) 1976, 539 F.2d 898, certiorari denied 97 S.Ct.
1100, 429 U.S. 1091, 51 L.Ed.2d 536. Telecommunications
1440
Subsec. (11) of this section, defining "aggrieved person" to mean a person who was a party to
any intercepted wire or oral communication of person against whom the interception was
directed does not broaden rule 41, Federal Rules of Criminal Procedure, Title 18, of standing
provided for in section of search and seizure rule of criminal procedure relating to U.S.C.A.
Const. Amend. 4 motions to suppress; thus, defendant may move to suppress fruits of a wiretap
only if his privacy was actually invaded, that is, if he was a participant in an intercepted
conversation or if such conversation occurred on his premises. U. S. v. King, C.A.9 (Cal.) 1973,
478 F.2d 494, certiorari denied 94 S.Ct. 111, 414 U.S. 846, 38 L.Ed.2d 94, certiorari denied 94
S.Ct. 2628, 417 U.S. 920, 41 L.Ed.2d 226. Criminal Law
394.5(2)
Where journalist is party to conversation, recording of such a conversation for news gathering
purposes is not "criminal or tortious act" within meaning of federal statute, under which
interception of wire or oral communications by party in conversation is not unlawful unless
interception is for purpose of committing criminal or tortious act. Sussman v. American
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 62
18 U.S.C.A. § 2511
Broadcasting Companies, Inc., C.D.Cal.1997, 971 F.Supp. 432, affirmed 186 F.3d 1200,
certiorari denied 120 S.Ct. 970, 528 U.S. 1131, 145 L.Ed.2d 841. Telecommunications
1440
Even if an assistant basketball coach at a university was not acting under color of law for
purposes of federal wiretapping statute when he recorded a conversation with a student he was
attempting to recruit, the basketball coach did not violate the federal wiretapping statute by
making the recording; the coach made the recording and passed it on to the National Collegiate
Athletic Association (NCAA) so that the NCAA could conduct an investigation, the assistant
coach's conduct was not unlawful, and the coach was a party to the conversation. Thomas v.
Pearl, C.D.Ill.1992, 793 F.Supp. 838, affirmed 998 F.2d 447, rehearing denied, certiorari denied
114 S.Ct. 688, 510 U.S. 1043, 126 L.Ed.2d 655. Telecommunications
1440
Having taped conversation between herself and defendant, and not in the presence of or at
direction of federal agent, wife was sole interceptor of conversation, and recording was thus not
in violation of wiretap statute [18 U.S.C.A. § 2511(2)(c)]. U.S. v. Estes, D.C.Vt.1985, 609
F.Supp. 564. Telecommunications
1440
Even though there was no evidence that recipient of telephone call from police officer on
monitored telephone had any reason to know that conversation might be recorded, where officer
making unauthorized telephone call had notice that call was monitored, recipient of telephone
call was barred from recovery in action recipient brought under this section. Jandak v. Village of
Brookfield, N.D.Ill.1981, 520 F.Supp. 815. Telecommunications
1437
One who is party to telephone conversation may repeat it verbatim without the use of recording
device and not violate this section prohibiting wire interception and interception of oral
communications. Smith v. Wunker, S.D.Ohio 1972, 356 F.Supp. 44. Telecommunications
1440
The recording of private telephone conversation by a party to it and its subsequent disclosure did
not violate this chapter making it unlawful to intercept wire or oral communication. Smith v.
Wunker, S.D.Ohio 1972, 356 F.Supp. 44. Telecommunications
1440
43. ---- Consent, exceptions
Pretrial detainee impliedly consented to recording of conversations conducted on correctional
facility's telephones, and recordings thus were not excludable at criminal trial under Federal
Wiretap Act, where detainees received numerous warnings that their calls might be recorded, and
detainee was aware of such warnings, as indicated by his statement that phone was tapped. U.S.
v. Faulkner, C.A.10 (Kan.) 2006, 439 F.3d 1221. Telecommunications
1440
Employer's interception of employee telephone calls did not come within consent exception to
federal and Maine wiretapping laws; although intercepted corporate officer was told that
employee calls would be monitored, officer was not told of manner in which monitoring was
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 63
18 U.S.C.A. § 2511
conducted or that he himself would be monitored. Williams v. Poulos, C.A.1 (Me.) 1993, 11
F.3d 271. Telecommunications
1440
"Consent to use" defense did not apply to defendant who represented husband in divorce action
and who allegedly improperly used wife's recorded telephone conversations in connection with
divorce action. U.S. v. Wuliger, C.A.6 (Ohio) 1992, 981 F.2d 1497, rehearing denied 999 F.2d
1090, certiorari denied 114 S.Ct. 1293, 510 U.S. 1191, 127 L.Ed.2d 647, rehearing denied 114
S.Ct. 1872, 511 U.S. 1101, 128 L.Ed.2d 492. Telecommunications
1440
Where Government made recording of conversation between defendant and government
informant with consent and cooperation of informant, there was no need to inform defendant or
to obtain court order. U.S. v. Barone, C.A.2 (N.Y.) 1990, 913 F.2d 46. Telecommunications
1440; Telecommunications
1462
Tenant consented to his landlady's recording of his telephone calls and, therefore, her
interception of calls did not violate federal wiretapping statute; landlady repeatedly informed
tenant that all of her incoming calls were being monitored and that blanket admonishment left no
room for tenant to wonder whether his calls would be intercepted. Griggs-Ryan v. Smith, C.A.1
(Me.) 1990, 904 F.2d 112. Telecommunications
1440
Congress intended consent requirement of federal wiretapping statute exclusion for
communications to which one of parties has given consent to interception to be construed
broadly. Griggs-Ryan v. Smith, C.A.1 (Me.) 1990, 904 F.2d 112. Telecommunications
1440
Absent evidence that arrestee who agreed to telephone defendant knew that call was being
monitored, Government failed to carry burden of establishing consent to taping of call, as
required for admission of tape under federal wiretap statute. U.S. v. Gomez, C.A.5 (Tex.) 1990,
900 F.2d 43, rehearing denied. Criminal Law
394.6(4)
Electronic surveillance of attorney did not violate federal communications interception statute
where one of parties to conversation had consented to interception; accordingly, police officers
could not be held liable in civil rights action brought by attorney arising out of interception.
Lewellen v. Raff, C.A.8 (Ark.) 1988, 843 F.2d 1103, rehearing denied 851 F.2d 1108, certiorari
denied 109 S.Ct. 1171, 489 U.S. 1033, 103 L.Ed.2d 229. Civil Rights
1088(3)
Where defendant knew that third party would monitor his phone calls by listening in periodically
and agreed to let her do so and did not object when she broke in and participated in
conversations, he did not consent only to "mechanical" interceptions of his calls, but also gave
her right to record calls. U.S. v. Tzakis, C.A.2 (N.Y.) 1984, 736 F.2d 867. Telecommunications
1440
Where paid informer gave his consent before recording conversations in which he was involved,
the conversations were free from warrant requirement. U.S. v. Davanzo, C.A.11 (Fla.) 1983, 699
F.2d 1097. Criminal Law
394.3
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 64
18 U.S.C.A. § 2511
Trial court properly admitted tapes of defendant's telephone conversations, where the tapes were
made with the consent of the other party to the conversations. U.S. v. Jones, C.A.5 (La.) 1982,
693 F.2d 343. Criminal Law
438.1
Conspirator, who requested private detective to install electronic equipment on him in order to
record conversation with his coconspirator, consented to the interception within meaning of this
chapter, even though further divulging had not been authorized and even though conspirator was
unaware that the detective was cooperating with the Federal Bureau of Investigation. U. S. v.
Shields, C.A.11 (Fla.) 1982, 675 F.2d 1152, certiorari denied 103 S.Ct. 130, 459 U.S. 858, 74
L.Ed.2d 112, certiorari denied 103 S.Ct. 373, 459 U.S. 1015, 74 L.Ed.2d 508.
Telecommunications
1440
Exclusion of tape recording of defendant's conversation with informer regarding drug
distribution was not required, even though tape recording did not contain all of their
conversation, inasmuch as informer had consented to the interception and was acting under
direction of government agents. U. S. v. Tousant, C.A.9 (Cal.) 1980, 619 F.2d 810. Criminal
Law
394.3
Bank owner's consent to interception of Internal Revenue Service agents' conversations on bank
premises did not preclude a finding that agents had a justifiable expectation that they were not
being monitored and was no defense to charge of electronic eavesdropping brought against bank
president. U. S. v. Duncan, C.A.4 (N.C.) 1979, 598 F.2d 839, certiorari denied 100 S.Ct. 148,
444 U.S. 871, 62 L.Ed.2d 96. Telecommunications
1440
Public disclosure after determination by court in pretrial hearing that intercepted
communications had been lawfully obtained would not frustrate purposes of this chapter since,
once court determines that communications had been obtained by consent of parties, disclosure is
not forbidden by this chapter. U. S. v. Cianfrani, C.A.3 (Pa.) 1978, 573 F.2d 835. Records
67
Tape recordings were not illegal wiretaps where one party to conversation consented to the tapes
being made. U. S. v. Wright, C.A.1 (Mass.) 1978, 573 F.2d 681, certiorari denied 98 S.Ct. 2857,
436 U.S. 949, 56 L.Ed.2d 792; U.S. v. Bradford, D.C. Conn.1980, 496 F.Supp. 366. Criminal
Law
394.5(3)
Consent of government informant to official eavesdropping between conversations between
informant and defendant vitiates claim of illegality. U. S. v. Finley, C.A.8 (Mo.) 1978, 571 F.2d
430, certiorari denied 98 S.Ct. 2240, 436 U.S. 907, 56 L.Ed.2d 406. Criminal Law
394.3
State and federal tariff regulations with respect to use of bleeper device when telephone
conversation is being monitored apply only to persons acting in their private capacity, and thus
were not violated by government monitoring of informer's conversations with defendants
pursuant to informer's consent. U. S. v. Rich, C.A.8 (Mo.) 1975, 518 F.2d 980, certiorari denied
96 S.Ct. 3193, 427 U.S. 907, 49 L.Ed.2d 1200. Telecommunications
1440
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 65
18 U.S.C.A. § 2511
Subsec. (2) (c) of this section dealing with governmental wiretaps without warrant to which one
party consented was worded as exception to this section's general prohibition of judicially
nonauthorized wiretaps, not as a positive authorization of such taps; Congress thus left prior law
of consensual wiretaps intact; and it was not clear that Congress intended to displace more
rigorous requirements found in state laws. U. S. v. Keen, C.A.9 (Wash.) 1974, 508 F.2d 986,
certiorari denied 95 S.Ct. 1655, 421 U.S. 929, 44 L.Ed.2d 86. States
18.81;
Telecommunications
1440
Defendant consented to interception and recording of his telephone conversations by his
employer, so that admission of those recordings did not violate Title III of the Omnibus Crime
Control and Safe Streets Act, which generally precluded interception and recording of telephone
calls by private parties and later use of such recordings, in prosecution for conspiracy and
substantive offenses; defendant continued to use telephones at workplace after he received
memorandum from employer's auditor that calls were being recorded and reviewed, defendant
acknowledged that he consented to having his calls listened to and that he knew calls were being
recorded when he challenged vice president of human resources to listen to the recordings if she
did not believe his defense to allegations lodged against him by assistant, employer's handbook
stated that calls were subject to recording and that employer had right to review recordings, and
defendant signed form stating that he consented to recording. U.S. v. Rittweger, S.D.N.Y.2003,
258 F.Supp.2d 345. Telecommunications
1440
Defendant impliedly consented to recording of telephone conversations in which he participated
while in custody, for purposes of exception to requirements of Federal Wiretap Act, where he
was informed that his calls were subject to monitoring and recording, he chose to proceed with
the conversations, and those to whom defendant made calls expressly consented to participate in
possibly recorded telephone conversations. U.S. v. Roy, D.Mass.2003, 349 F.Supp.2d 60.
Telecommunications
1440
Detainee consented to monitoring of his prison telephone calls, and thus Title III of Omnibus
Crime Control and Safe Streets Act did not bar admission of his tape recorded confession in
criminal prosecution, even though officials did not give notice that calls would be monitored by
private contractors, where detention facilities adequately alerted inmate to fact that calls would
be monitored, and detainee in fact knew his calls were being monitored. U.S. v. Rivera,
E.D.Va.2003, 292 F.Supp.2d 838. Criminal Law
394.3; Telecommunications
1440
Wiretap Act's statutory exception applied to web-monitoring company's interception of Internet
users' electronic communications with various health-related and medical-related Internet Web
sites and sharing of private information about their Web browsing habits and confidential health
information with pharmaceutical companies because pharmaceutical companies consented to
web-monitoring company's service, and because Internet users failed to present any evidence of a
tortious intent. In re Pharmatrak, Inc. Privacy Litigation, D.Mass.2002, 220 F.Supp.2d 4,
reversed 329 F.3d 9, on remand 292 F.Supp.2d 263. Telecommunications
1439;
Telecommunications
1440
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 66
18 U.S.C.A. § 2511
World Wide Web sites that employed intermediary to rent space to advertisers effectively
consented to intermediary's interception of communications between site visitors and sites,
within consent exception of Federal Wiretap Act; intermediary conducted interceptions in order
to gather information to use in selecting advertisements to display to visitors. In re DoubleClick
Inc. Privacy Litigation, S.D.N.Y.2001, 154 F.Supp.2d 497. Telecommunications
1440
Federal inmate consented to having his personal calls recorded by Bureau of Prisons (BOP),
where inmate acknowledged receipt of "Admission and Orientation Handbook" that stated that
all telephone calls, except those to his attorneys, were subject to monitoring, signed form stating
that "inmate's use of institutional telephones constitutes consent" to monitoring, received
"Lesson Plan" that informed him that all calls were monitored, was informed of telephone
procedures when he was admitted, and received copy of "Inmate Information Handbook" which
stated that telephones "are subject to monitoring and recording." U.S. v. Hammond, D.Md.2001,
148 F.Supp.2d 589, affirmed 286 F.3d 189, certiorari denied 123 S.Ct. 215, 537 U.S. 900, 154
L.Ed.2d 172. Telecommunications
1440
Consent exception to Federal Wiretapping Statute, which permits party to record telephone
conversations if one party to conversation has consented, applied to former husband's recording
of conversations between former wife and minor child, thus precluding wife's action against
husband under statute, where husband was custodial parent with power to consent for child, and
child's crying and depressed behavior following conversations led husband to believe that they
were harmful to her. Campbell v. Price, E.D.Ark.1998, 2 F.Supp.2d 1186. Telecommunications
1440
Claim for violation of federal and state wiretapping statute could not be predicated on actions of
producers of television show in sending undercover patients into eye clinic where conversations
with doctors were recorded without doctors' consent; since plaintiffs could not make out claim
for trespass or for invasion of privacy, plaintiffs could not establish that oral communications
were intercepted for tortious purpose and in course of tortious conduct. Desnick v. Capital
Cities/ABC, Inc., N.D.Ill.1994, 851 F.Supp. 303, affirmed in part, reversed in part 44 F.3d 1345,
on remand 1996 WL 189305. Telecommunications
1436
Audio surveillance of governmental agent's conversation in hotel room with defendants charged
with conspiracy to commit interstate murder for hire was permissible since governmental agent
voluntarily consented to and participated in audiotaping. U.S. v. Cox, D.Md.1993, 836 F.Supp.
1189. Telecommunications
1440
Clients who taped telephone conversations with stockbroker without the stockbroker's consent
would be enjoined, together with their attorneys and agents, from further disclosing the contents
of the tapes and/or transcripts to any third-party persons. Menda Biton v. Menda, D.Puerto Rico
1992, 796 F.Supp. 631, corrected 812 F.Supp. 282. Injunction
96
Under wiretap statute there is no liability where party to communication intercepts
communication by consent or under color of law; no cause of action may be maintained against
private actors where they are ordered by government authorities to intercept communications.
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 67
18 U.S.C.A. § 2511
Manufacturas Intern., Ltda v. Manufacturers Hanover Trust Co., E.D.N.Y.1992, 792 F.Supp.
180, affirmed 47 F.3d 1159, certiorari denied 115 S.Ct. 2557, 515 U.S. 1132, 132 L.Ed.2d 811.
Telecommunications
1440; Telecommunications
1441
Warrantless recording of conversation with consent of one of the parties may be admitted into
evidence in federal prosecution, provided that Government introduces clear and convincing
evidence of authenticity and accuracy of the recording. U.S. v. Seibert, E.D.Pa.1991, 779
F.Supp. 366. Criminal Law
394.3
Neither federal statute which outlaws interception and disclosure of wire or oral communications
and barred activities such as wiretapping and eavesdropping through use of electronic
surveillance, but did not outlaw authorized use of computer data, nor similar Minnesota statute
applied to claims that computer system supplier and/or agricultural equipment supplier
wrongfully gained access to computer systems of agricultural equipment dealers that leased
computers and misappropriated their property, where both dealer-lessees allowed computer
supplier access to their computer systems pursuant to contracts with supplier. American
Computer Trust Leasing v. Jack Farrell Implement Co., D.Minn.1991, 763 F.Supp. 1473,
affirmed and remanded 967 F.2d 1208, certiorari denied 113 S.Ct. 414, 506 U.S. 956, 121
L.Ed.2d 338. Telecommunications
1440
Defendant broadcasting company's interview of plaintiff on public street did not violate Ohio
statute prohibiting recording private oral communication, and thus, could not be basis for tort
action under Ohio statute under which civil actions can be maintained to recover damages caused
by violation of criminal statute; thus, there was no interception for purpose of committing
tortious act, and one-party consent exception of Title III of Omnibus Crime Control and Safe
Streets Act, which act prohibits unlawful interception, disclosure, or use of any wire or oral
communication, applied. Brooks v. American Broadcasting Companies, Inc., N.D.Ohio 1990,
737 F.Supp. 431, affirmed in part, vacated in part on other grounds 932 F.2d 495.
Telecommunications
1440; Telecommunications
1436
Judicial order is not required for tape recording a conversation when one of the parties has given
prior consent to the interception. U.S. v. Napolitano, S.D.N.Y.1982, 552 F.Supp. 465.
Telecommunications
1462
Evidence that person was asked to cooperate with FBI and grand jury investigation of
defendants, that, after consulting with his wife, he agreed to do so, that he asked to have
recording device put on his telephone so that he could take down any conversations he had with
defendants "in black and white," and that he consented when FBI agents asked him to wear a
body recording and transmitting device demonstrated that the person had given his prior,
voluntary consent to the electronic recording and transmission of his conversations with
defendants. U. S. v. Slawik, D.C.Del.1975, 408 F.Supp. 190, affirmed 564 F.2d 90.
Telecommunications
1440
Consent of informer to monitoring and recording of his telephone conversations with defendants
was voluntary, and thus the interceptions were valid and the fruits thereof admissible, though
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 68
18 U.S.C.A. § 2511
informer accepted monetary assistance when offered by federal agents, where he was not
threatened or taken advantage of and was not under the influence of drugs and visited agents'
offices on his own initiative, allegedly out of concern for his family and his objection to
involvement of his "common law brother-in-law" and his associates in narcotics trafficking. U.
S. v. Baynes, E.D.Pa.1975, 400 F.Supp. 285, affirmed 517 F.2d 1399. Criminal Law
394.3;
Telecommunications
1440
Where informant consented to monitoring by Drug Enforcement Administration agents of his
telephone call to defendant, during course of which call defendant agreed to sell informant
lysergic acid diethylamide, agents' interception of the call was not prohibited by this chapter. U.
S. v. Beni, E.D.Wis.1975, 397 F.Supp. 1086. Telecommunications
1440
Taping of conversations between defendants and F.B.I. agent and between defendants and third
parties who worked with F.B.I. and who consented to taping was not unlawful under this Act
which provides that it is not unlawful for a person acting under color of law to intercept wire or
oral communications where such person is party to conversation or where one party gives
consent to interception. U. S. v. Merritts, E.D.Ill.1975, 387 F.Supp. 807, reversed on other
grounds 527 F.2d 713. Telecommunications
1440
44. ---- Determination of consent, exceptions
Consent to have telephone communications intercepted should not casually be inferred, but
rather surrounding circumstances must convincingly show that party knew about and consented
to interception in spite lack of formal notice or deficient formal notice, in determining whether
intercepted telephone conversations are admissible. U.S. v. Lanoue, C.A.1 (R.I.) 1995, 71 F.3d
966, appeal after new trial 137 F.3d 656. Telecommunications
1440
District court, ruling on suppression motion, did not clearly err in its factual finding that police
informant's consent to recording of his telephone conversation with drug supplier was not
coerced; police officer denied threatening informant with prosecution of his girlfriend, and DEA
agent's testimony furnished evidence that informant cooperated out of desire for leniency for
himself. U.S. v. Wake, C.A.5 (Tex.) 1991, 948 F.2d 1422, certiorari denied 112 S.Ct. 2944, 504
U.S. 975, 119 L.Ed.2d 569. Criminal Law
394.6(4)
Consent required for admissibility of tape recording is question of fact to be determined from
totality of circumstances, and court need not submit consent issue to jury after making initial
determination of admissibility. U.S. v. Gomez, C.A.5 (Tex.) 1991, 947 F.2d 737, certiorari
denied 112 S.Ct. 1504, 503 U.S. 947, 117 L.Ed.2d 642. Criminal Law
736(1)
Although right at stake in an exclusionary hearing to prevent admission of conversations
recorded in violation of federal wiretapping restrictions is statutory, not constitutional, Fourth
Amendment precedents determine whether party to communication consented to an interception
within meaning of statute. U.S. v. Antoon, C.A.3 (Pa.) 1991, 933 F.2d 200, rehearing denied,
certiorari denied 112 S.Ct. 300, 502 U.S. 907, 116 L.Ed.2d 243. Criminal Law
394.3
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 69
18 U.S.C.A. § 2511
Government agent, a party to conversation between agent and defendant, testified that he gave
his voluntary consent to have the conversation monitored, and therefore tape-recorded
conversation was admissible pursuant to this section. U.S. v. Boley, C.A.10 (Okla.) 1984, 730
F.2d 1326. Criminal Law
394.3
Evidence that district court stated that it could be inferred that tape recording system had been
installed in presidential offices at the direction of the President, that the tape recordings were
made at the direction of the President, and that the President consented to the interception of oral
communications demonstrated that trial court based its decision to admit the tape recordings
upon an implicit finding that the President had directed the installation of the recording
equipment and had thereby consented to the interception of the conversations for purposes of this
chapter. U. S. v. Haldeman, C.A.D.C.1976, 559 F.2d 31, 181 U.S.App.D.C. 254, certiorari
denied 97 S.Ct. 2641, 431 U.S. 933, 53 L.Ed.2d 250, rehearing denied 97 S.Ct. 2992, 433 U.S.
916, 53 L.Ed.2d 1103. Criminal Law
394.3
Test for consent to interception of wire communication by one participating in the
communication is less rigorous than consent required for waiver of a constitutional right and
requires only that individual proceed despite his or her understanding that the conversation is
being recorded, and thus promises of leniency do not vitiate consent under wiretap statute. U.S.
v. Edmond, D.D.C.1989, 718 F.Supp. 988. Telecommunications
1440
Unavailability of a consenting party to a conversation does not prevent proof of consent to the
recording from being demonstrated by other means. U.S. v. Traficant, N.D.Ohio 1983, 558
F.Supp. 996. Criminal Law
394.3
45. ---- Voluntariness of consent, exceptions
Evidence of illegal drug activities by a physician, obtained through recording of conversation
with paramedic who was his friend, was improperly suppressed by district court on grounds that
paramedic's consent to recording had not been voluntary; although police officers had told
paramedic that he could be indicted and lose his job if he failed to cooperate, he was never told
that indictment or dismissal would occur if he refused, and although paramedic stated that he felt
"trapped" into agreeing to the recording the pressure on him was no worse than on any other
person who had engaged in illegal activities and realized that he had been caught. U.S. v.
Antoon, C.A.3 (Pa.) 1991, 933 F.2d 200, rehearing denied, certiorari denied 112 S.Ct. 300, 502
U.S. 907, 116 L.Ed.2d 243. Telecommunications
1440
That party to telephone conversation might have hoped to benefit from his decision to allow
government to intercept and record communication did not impair voluntariness of consent for
purposes of rule forbidding electronic surveillance. U. S. v. Salisbury, C.A.11 (Ga.) 1981, 662
F.2d 738, certiorari denied 102 S.Ct. 2907, 457 U.S. 1107, 73 L.Ed.2d 1316; U.S. v. Osser,
C.A.Pa.1973, 483 F.2d 727, certiorari denied 94 S.Ct. 457, 414 U.S. 1028, 38 L.Ed.2d 321; U.S.
v. Taylor, D.C.Pa. 1979, 473 F.Supp. 65; U.S. v. Acavino, D.C.Pa.1979, 467 F.Supp. 284;
Matter of Bates, Tex.1977, 555 S.W.2d 420. Telecommunications
1440
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 70
18 U.S.C.A. § 2511
Once it is shown that cooperation has been undertaken, barring some affirmative evidence of
will-overbearing coercive threats, participation in monitoring or recording a telephone or other
conversation in which informant is a participant is merely incidental to previously determined
course of cooperation with law enforcement officials and is not involuntary. U. S. v. Horton,
C.A.7 (Ill.) 1979, 601 F.2d 319, certiorari denied 100 S.Ct. 287, 444 U.S. 937, 62 L.Ed.2d 197.
Telecommunications
1440
Consent of participant in wiretapped telephone conversation was not rendered involuntary, so as
to make intercepted communication inadmissible during prosecution of other participant, on
theory that it was coerced by grant of immunity to first participant and by such participant's
attorney's advice. Cooper v. U. S., C.A.4 (Md.) 1979, 594 F.2d 12. Telecommunications
1440
Defendants voluntarily consented to recording of their telephone calls from detention facility, so
as to make recordings admissible against defendants; no one forced defendants to make calls,
there was no possibility that defendants were cajoled into making calls with false promises, as
defendants had already been arrested and charged, defendants were informed that calls could be
monitored and taped, and defendants signed forms acknowledging that they had read or been
read provisions indicating that calls might be monitored and recorded. U.S. v. Rohlsen, D.Virgin
Islands 1997, 968 F.Supp. 1049, affirmed 185 F.3d 864, certiorari denied 120 S.Ct. 425, 528
U.S. 976, 145 L.Ed.2d 332, certiorari denied 120 S.Ct. 433, 528 U.S. 980, 145 L.Ed.2d 339,
denial of post-conviction relief affirmed 85 Fed.Appx. 307, 2004 WL 75385, certiorari denied
124 S.Ct. 2406, 541 U.S. 1070, 158 L.Ed.2d 975. Criminal Law
394.3
Fact that codefendant's consent to cooperate with law enforcement officials was product of
violation of his Fourth Amendment rights did not vitiate his consent to electronic surveillance of
his telephone conversations with defendant and, thus, defendant was not entitled to suppression
of audiotapes of those conversations. U.S. v. Restrepo, E.D.N.Y.1995, 890 F.Supp. 180.
Telecommunications
1440
A grant of immunity to a party consenting to the taping of a conversation, within meaning of this
section providing that it is not unlawful for a person acting under color of law to intercept a wire
or oral communication where one of the parties to the communication has given prior consent to
such interception, does not render the consent involuntary. U. S. v. King, C.D.Cal.1982, 536
F.Supp. 253. Telecommunications
1440
46. ---- Implied consent, exceptions
Pretrial detainee impliedly consented to recording of conversations conducted on correctional
facility's telephones, and recordings thus were not excludable at criminal trial under Federal
Wiretap Act, where detainees received numerous warnings that their calls might be recorded, and
detainee was aware of such warnings, as indicated by his statement that phone was tapped. U.S.
v. Faulkner, C.A.10 (Kan.) 2006, 439 F.3d 1221. Telecommunications
1440
Pretrial detainee impliedly consented to audiotaping of his telephone calls from detention center,
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 71
18 U.S.C.A. § 2511
and, thus, consent exception applied under provision of Title III of Omnibus Crime Control and
Safe Streets Act prohibiting intentional use of any electronic, mechanical, or other device to
intercept any oral communication; detainee signed consent form and was given prison manual a
few days after his arrival, and detention center posted signs above telephones warning of
monitoring and taping. U.S. v. Van Poyck, C.A.9 (Cal.) 1996, 77 F.3d 285, certiorari denied 117
S.Ct. 276, 519 U.S. 912, 136 L.Ed.2d 199. Telecommunications
1440
Employee's consent to tape recording of intercepted telephone calls could not be implied, so as to
exempt employer from liability for violating wire and electronic communications interception
provisions of the Omnibus Crime Control and Safe Streets Act, merely because employer warned
employee that calls may be monitored to cut down on personal use of telephone, or because
extension telephone was located in owners' residence. Deal v. Spears, C.A.8 (Ark.) 1992, 980
F.2d 1153. Telecommunications
1440
Inmates impliedly consented to interception of their telephone calls by using prison telephones
when they were on notice of the prison's interception policy from at least four sources. U.S. v.
Amen, C.A.2 (N.Y.) 1987, 831 F.2d 373, certiorari denied 108 S.Ct. 1573, 485 U.S. 1021, 99
L.Ed.2d 889. Telecommunications
1440
Employee's knowledge of employer's capability of monitoring her private telephone
conversations, by itself, could not be considered implied consent to such monitoring. Watkins v.
L.M. Berry & Co., C.A.11 (Ala.) 1983, 704 F.2d 577. Telecommunications
1440
Tape recording and all evidence concerning an alleged phone conversation between codefendant
and defendant subsequent to arrest were not subject to being suppressed, notwithstanding claim
that there was an insufficient showing of consent to recording of call, where there was testimony
that codefendant had consented after being asked whether he would mind if conversation was
recorded for use in court and, in addition, circumstances shown by testimony supported an
inference of such consent. U. S. v. Axselle, C.A.10 (Kan.) 1979, 604 F.2d 1330. Criminal Law
394.5(3)
Inmates of correctional facility impliedly consented to recording of telephone conversation
during which they made inculpatory statements, precluding suppression of evidence that inmates
attempted to kill government witnesses, derived from intercepted conversations under Omnibus
Crime Control and Safe Streets Act; notices that conversations might be recorded were posted
throughout facility, and in telephone area, and recording warning was given orally before
commencement of long distance calls. U.S. v. Faulkner, D.Kan.2004, 323 F.Supp.2d 1111,
affirmed 439 F.3d 1221. Telecommunications
1440
Consent may be actual or implied for purposes of consent exception to Omnibus Crime Control
and Safe Streets Act of 1968. Ali v. Douglas Cable Communications, D.Kan.1996, 929 F.Supp.
1362. Telecommunications
1440
Interception of telephone conversation by police officer is not actionable where one party to the
conversation gave prior consent to the interception, and that consent need not be express, but,
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 72
18 U.S.C.A. § 2511
rather, can be inferred from the surrounding circumstances. In re State Police Litigation,
D.Conn.1995, 888 F.Supp. 1235, appeal dismissed 88 F.3d 111. Telecommunications
1440
Police officers who used police commission's telephones impliedly consented to recording of
their conversations, and commission thus was not liable under Omnibus Crime Control and Safe
Streets Act; officers used telephones regularly despite facts that warning labels were affixed to
telephones, that memoranda warned that calls would be recorded, and that employees regularly
talked about recording of their phone calls. George v. Carusone, D.Conn.1994, 849 F.Supp. 159.
Telecommunications
1440
Implied consent existed to record state prison inmate's telephone conversations for use in
criminal prosecutions, even though inmate was never told that use of telephone system
constituted consent to be recorded or that prison could use tapes as incriminating evidence and
he thought he was being monitored but not recorded, where inmate was informed that prison
system had ability to monitor telephone calls, and on several occasions inmate either warned
parties he called of monitoring or used code to talk about alleged criminal activity during
telephone conversations. U.S. v. Green, W.D.N.Y.1994, 842 F.Supp. 68, affirmed 80 F.3d 688,
169 A.L.R. Fed. 725, certiorari denied 117 S.Ct. 319, 519 U.S. 938, 136 L.Ed.2d 233, certiorari
denied 117 S.Ct. 373, 519 U.S. 955, 136 L.Ed.2d 262, denial of post-conviction relief affirmed in
part, vacated in part 4 Fed.Appx. 88, 2001 WL 179072. Telecommunications
1440
Inmate does not impliedly consent to the interception of telephone calls through use of telephone
in prison setting with notice that it is being monitored. U.S. v. Cheely, D.Alaska 1992, 814
F.Supp. 1430, affirmed 21 F.3d 914, affirmed 36 F.3d 1439. Telecommunications
1440
Employers' occasional complaints about employees' excessive telephone usage and threats to
monitor calls and put in pay phone fell short of notice to employees of tapped phone, and
therefore implied consent exception to liability under Omnibus Crime Control and Safe Streets
Act was inapplicable with respect to employers who taped and disclosed contents of employee's
telephone conversations with her boyfriend. Deal v. Spears, W.D.Ark.1991, 780 F.Supp. 618,
affirmed 980 F.2d 1153. Telecommunications
1440
Informant's continuing cooperation with the Government and knowledge of the recording was
tantamount to his consent to record conversations he had with defendant and therefore recordings
of the conversations were admissible. U.S. v. Burford, S.D.N.Y.1991, 755 F.Supp. 607.
Criminal Law
394.3
Evidence supported inference that party to telephone call with defendant gave requisite consent
to interception of call by law enforcement officers; agreed to cooperate with agents and to place
tape-recorded call to defendant, party determined substantially what he would say to defendant,
and placed call knowing that conversation was being recorded. U.S. v. Abreu, D.Colo.1990, 730
F.Supp. 1018, affirmed 935 F.2d 1130, certiorari denied 112 S.Ct. 271, 502 U.S. 897, 116
L.Ed.2d 224. Telecommunications
1440
Pretrial detainee's use of telephone after ample notice of detention center's interception system
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 73
18 U.S.C.A. § 2511
constituted implied consent to monitoring of his conversation, within meaning of statutory
exception to warrant requirement; detainee had notice of monitoring system through regulations
published in Code of Federal Regulations, center's admission and orientation procedures, and
notices placed on all pay telephones in center. U.S. v. Montgomery, S.D.N.Y.1987, 675 F.Supp.
164, affirmed 860 F.2d 15, certiorari denied 109 S.Ct. 846, 488 U.S. 1033, 102 L.Ed.2d 978.
Telecommunications
1440
Defendant impliedly consented to taping of his calls from jail, precluding claim of intrusion of
privacy under Fourth Amendment; defendant was cognizant of detention settings, which
permitted strong inference that he fully understood fact that jail telephones were monitored, and
defendant, as keen observer of detail, was presumed to have seen signs above other telephones
that provided notice of telephone monitoring, and, even if he did not see those signs, fact that he
maneuvered himself into area of jail where he was alone and could access different telephone,
implied that he believed phone, unlike other clearly marked phones, was unmonitored. U.S. v.
Gangi, C.A.10 (Wyo.) 2003, 57 Fed.Appx. 809, 2003 WL 191367, Unreported. Prisons
4(6)
47. ---- Vicarious consent, exceptions
As long as guardian has good faith basis that is objectively reasonable for believing that it is
necessary to consent on behalf of her minor children to taping of telephone conversations,
vicarious consent will be permissible, and will serve as defense to claim under federal
wiretapping statutes, in order for guardian to fulfill her statutory mandate to act in best interest of
children. Thompson v. Dulaney, D.Utah 1993, 838 F.Supp. 1535, 139 A.L.R. Fed. 765.
Telecommunications
1441
48. ---- Parental interception, exceptions
Where divorced husband, who had custody of parties' eight-year-old daughter, covertly recorded,
at his own home, telephone conversations between daughter and his ex-wife, such action
involved mere marital dispute and did not rise to level of criminal conduct proscribed by this
section. Anonymous v. Anonymous, C.A.2 (N.Y.) 1977, 558 F.2d 677. Telecommunications
1440
A custodial parent's good faith concern for his minor child's best interests may, without liability
under the Federal Wiretapping Statute, empower the parent to intercept the child's conversations
with her non-custodial parent. Campbell v. Price, E.D.Ark.1998, 2 F.Supp.2d 1186.
Telecommunications
1440
49. ---- Extension phones, exceptions
Determinations by state court that sister of victim of alleged rape was using telephone extension
in ordinary course of business when she eavesdropped on telephone conversation between
victim's mother and defendant, so that federal wiretapping statute did not bar sister's testimony
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 74
18 U.S.C.A. § 2511
regarding conversation, and accordingly that counsel for defendant was not ineffective in failing
to object on that basis, were not contrary to, nor an unreasonable application of, clearly
established federal law, as would provide basis for relief on petition for habeas corpus under
Antiterrorism and Effective Death Penalty Act (AEDPA). Vieux v. Pepe, C.A.1 (Mass.) 1999,
184 F.3d 59, certiorari denied 120 S.Ct. 1178, 528 U.S. 1163, 145 L.Ed.2d 1086. Habeas Corpus
486(4); Habeas Corpus
490(4)
Former husband's intentional disclosure of contents of telephone conversations he recorded
between former wife and child to child's therapist and husband's attorney did not violate Federal
Wiretapping Statute, where husband's recordings fell under both consent and extension phone
exceptions to statute. Campbell v. Price, E.D.Ark.1998, 2 F.Supp.2d 1186. Telecommunications
1440
50. ---- Service providers, exceptions
Switchboard operator and provider exception to federal wiretap statute did not permit State
Department officials and employees to secretly monitor conversation between Acting Assistant
Secretary of State for Legislative Affairs and Assistant Secretary of State for Consular Affairs,
concerning investigation into presidential candidate's passport; it was not in normal course of
State Department employees' employment to engage in any monitoring contrary to Department's
own guidelines, and exception in question was intended to apply to inevitability that switchboard
operators, when connecting calls, would overhear small part of call, and was not intended to
authorize random monitoring. Berry v. Funk, C.A.D.C.1998, 146 F.3d 1003, 331 U.S.App.D.C.
62. Telecommunications
1440
Airline, through its computerized travel reservation system, was "provider of wire or electronic
communication service" within meaning of statute permitting officer, employee, or agent of
provider of wire or electronic communication service to intercept, disclose, or use that
communication in normal course of employment while engaged in any activity which is
necessary incident to rendition of service or to protection of rights or property of provider of that
service. U.S. v. Mullins, C.A.9 (Cal.) 1993, 992 F.2d 1472, certiorari denied 113 S.Ct. 2997,
509 U.S. 905, 125 L.Ed.2d 691, certiorari denied 114 S.Ct. 556, 510 U.S. 994, 126 L.Ed.2d 457,
habeas corpus denied 1995 WL 688648, denial of post-conviction relief affirmed 139 F.3d 909.
Telecommunications
1440
Section of Wiretapping Act, providing defense to persons or entities engaged in providing
electronic communication services to the public, did not provide protection for former wife who
placed recording device on telephone and intercepted messages between her children and her
former husband, and her attorney who advised that she could legally do so. Rice v. Rice, C.A.8
(Mo.) 1991, 951 F.2d 942, rehearing denied. Telecommunications
1441
Quasi-public Puerto Rican telephone corporation was "other person" entitled to immunity from
liability for its participation at direction of federal officers in wiretap authorized under Omnibus
Crime Control and Safe Streets Act, given broad sweep of catchall "other persons" classification.
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 75
18 U.S.C.A. § 2511
Camacho v. Autoridad de Telefonos de Puerto Rico, C.A.1 (Puerto Rico) 1989, 868 F.2d 482.
Telecommunications
1441
Telephone company acted within its rights in monitoring telephone lines by tape recorder on
suspicion that subscriber was utilizing illegal "blue box" to make long-distance calls, and in
subsequently disclosing information thus secured to Federal Bureau of Investigation. U. S. v.
Cornfeld, C.A.9 (Cal.) 1977, 563 F.2d 967, certiorari denied 98 S.Ct. 1484, 435 U.S. 922, 55
L.Ed.2d 515. Telecommunications
1437
Government agents must not rely on telephone company employees to act on their behalf without
complying with requirements of U.S.C.A. Const. Amend. 5, and in no situation may Government
direct telephone company to intercept wire communications in order to circumvent warrant
requirements of reasonable search. U. S. v. Auler, C.A.7 (Wis.) 1976, 539 F.2d 642, certiorari
denied 97 S.Ct. 1132, 429 U.S. 1104, 51 L.Ed.2d 555. Searches And Seizures
34
Provisions of this section generally prohibiting interception and disclosure of wire or oral
communications, at least authorizes telephone company which has reasonable grounds to suspect
that its billing procedures are being bypassed to monitor any phone from which it believes that
illegal calls are being placed, and, if telephone company by use of device similar to TTS 176
discovers existence of illegal calls, such section, again at a minimum, authorizes company to
record, audibly, the salutations and to divulge to law enforcement authorities and ultimately to
courts the existence of illegal calls and fact that they were completed (the salutations). U. S. v.
Clegg, C.A.5 (Tex.) 1975, 509 F.2d 605. Telecommunications
1437
Telephone company had duty to note all long distance calls and to attempt to collect tolls and
taxes prescribed in tariff, and was not required to stop monitoring telephone as soon as company
had enough evidence to procure subscriber's arrest; four-month investigation was reasonably
necessary for protection of company's property rights, and company was free to disclose results
of entire four-month investigation. U. S. v. Clegg, C.A.5 (Tex.) 1975, 509 F.2d 605.
Telecommunications
1437
Wire communications were "in storage" in computer system of provider of electronic mail (email) service, and thus, were merely taken out of storage, rather than "intercepted" so as to
violate the Wiretap Act, where the communications were in the computer system's random
access memory (RAM) or hard disks, or both, even if for only a moment along the path from
sender to receiver, when the e-mail provider allegedly accessed them and attempted to use them
improperly for commercial gain. U.S. v. Councilman, D.Mass.2003, 245 F.Supp.2d 319,
affirmed 373 F.3d 197, rehearing granted, opinion withdrawn 385 F.3d 793, on rehearing 418
F.3d 67. Telecommunications
1439
Employee's use of cellular telephone did not need to be fraudulent or unlawful to be permissible
phone for monitoring and interception of calls by employer, as provider of electronic
communication service, investigating employee's involvement in cloning of cellular telephones;
all that was necessary was strong nexus between use of telephone and known fraud from use of
cloned telephones. U.S. v. McLaren, M.D.Fla.1997, 957 F.Supp. 215. Telecommunications
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 76
18 U.S.C.A. § 2511
1437
Regional chief of security for a department store chain was not guilty of unlawful interception of
telephone conversations when, having received reports of various improprieties occurring in the
chain's men's shoe department, he monitored and recorded conversations occurring on chain's
privately operated intercommunications system. U. S. v. Christman, N.D.Cal.1974, 375 F.Supp.
1354. Telecommunications
1440
Action taken by telephone company supervisor in attaching a "blue box" detector to line of
defendant subscriber, who was suspected of defrauding telephone company, which device
recorded the numbers dialed and the conversations had on such line in only those instances
where a "blue box" frequency was actually applied thereto, constituted the type of nonrandom
monitoring for the protection of property which was sanctioned by this section relating to
prohibition against interception and disclosure of wire or oral communications, so that there was
no violation of section 605 of Title 47 relating to unauthorized publication or use of
communications. U.S. v. DeLeeuw, E.D.Wis.1974, 368 F.Supp. 426. Telecommunications
1440
Sections 2510 to 2520 of this title impose no criminal or civil liability on common carriers which
provide limited technical assistance pursuant to a Government request in connection with
Presidentially authorized electronic surveillance for foreign intelligence purposes. 1978
(Counsel-Inf. Op.) 2 Op. O.L.C. 123.
51. Color of law
Assistant state university basketball coach was not acting "under color of law" when tape
recording telephone conversations with potential high school recruit for purposes of federal
wiretapping statute; there is no logical and reasonable connection between coach's job and
eavesdropping. Thomas v. Pearl, C.A.7 (Ill.) 1993, 998 F.2d 447, rehearing denied, certiorari
denied 114 S.Ct. 688, 510 U.S. 1043, 126 L.Ed.2d 655. Telecommunications
1440
Tapes of telephone conversations made by corporate executive of conversations with officers and
competitors of company were made "under color of law" so as to be exempt from prohibition of
federal Wiretap Act; the executive had continuous, although irregular, contact with government
officials; it was immaterial that executive was motivated by personal vendetta against his
employer. Obron Atlantic Corp. v. Barr, C.A.6 (Ohio) 1993, 990 F.2d 861. Telecommunications
1440
Communication is not unlawfully intercepted within meaning of this section where one of parties
to conversation is acting under color of law or has given prior consent to interception; this
section permits introduction of consensual recordings and thus controls over conflicting state
eavesdropping regulations.
U.S. v. McNulty, C.A.10 (Colo.) 1983, 729 F.2d 1243.
Telecommunications
1440
Informants who record private conversations at direction of government investigators are "acting
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 77
18 U.S.C.A. § 2511
under color of law" within purview of subsec. (2)(c) of this section governing electronic
surveillance. U.S. v. Haimowitz, C.A.11 (Fla.) 1984, 725 F.2d 1561, certiorari denied 105 S.Ct.
563, 469 U.S. 1072, 83 L.Ed.2d 504. Telecommunications
1434
Notwithstanding that government agents were not present when informant recorded
conversations or that informant had control over on-and-off switch to equipment, informant was
"acting under color of law" within purview of subsec. (2)(c) of this section governing electronic
surveillance and, as such, recorded conversations could be disclosed to grand jury. U.S. v.
Haimowitz, C.A.11 (Fla.) 1984, 725 F.2d 1561, certiorari denied 105 S.Ct. 563, 469 U.S. 1072,
83 L.Ed.2d 504. Grand Jury
36.8
Since undercover informer, who was employed by Alcohol, Tobacco and Firearms Bureau and
assisted Drug Enforcement Administration, consented to recording of his conversations with
defendant and acted under color of law the recording was valid under federal law, and taped
conversations were properly admitted in drug prosecution and fact that informer was an
individual paid by federal government for his undercover work, rather than state law
enforcement officer working at direction of FBI, did not affect his "under color of law" status.
U. S. v. Shedan, C.A.5 (Fla.) 1981, 651 F.2d 336. Criminal Law
394.3
Whatever may have been person's motive in cooperating with the Government, such person,
whose attorney suggested recordings during course of plea negotiations, who only taped
conversations that Government directed him to record, who was supplied recording equipment,
and from whom, after each conversation, agent took custody of equipment and original tapes,
was "acting under color of law" and gave prior consent to interception of his conversations with
defendant, thus rendering tape recordings of those conversations admissible in prosecution for
conspiracy to commit mail fraud, mail fraud and causing individual to travel in interstate
commerce with intent to promote an unlawful activity. U.S. v. Craig, C.A.7 (Ill.) 1977, 573 F.2d
455, certiorari denied 99 S.Ct. 82, 439 U.S. 820, 58 L.Ed.2d 110, certiorari denied 99 S.Ct. 83,
439 U.S. 820, 58 L.Ed.2d 110. Criminal Law
394.3
In prosecution of state officials for extortion, conspiracy, and bribery, recordings made by
witness state official of his conversations with defendants in conspiracy were admissible,
notwithstanding state statutes making recording of telephone conversations with another without
that person's permission unlawful and prohibiting introduction into evidence of such recorded
conversations, where witness was acting under color of law, in that recording equipment was
attached to his person and telephones by FBI, and hence was within this chapter making such
evidence admissible, and where it was not disputed that witness consented to recordings. U. S.
v. Hall, C.A.10 (Okla.) 1976, 536 F.2d 313, certiorari denied 97 S.Ct. 313, 429 U.S. 919, 50
L.Ed.2d 285. Criminal Law
394.3
Both Drug Enforcement Administration agents and informer acting at their direction were acting
"under color of law" in recording informer's conversation with defendants, and thus recording of
such conversations with the consent of the informer did not violate this chapter. U. S. v. Rich,
C.A.8 (Mo.) 1975, 518 F.2d 980, certiorari denied 96 S.Ct. 3193, 427 U.S. 907, 49 L.Ed.2d
1200. Telecommunications
1440
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 78
18 U.S.C.A. § 2511
Assistant basketball coach at a state university was acting "under color of law" for purposes of
federal wiretapping statute when he recorded a conversation with a student the coach was
attempting to recruit; coach made the recording at direction of his superiors using equipment
supplied by the university. Thomas v. Pearl, C.D.Ill.1992, 793 F.Supp. 838, affirmed 998 F.2d
447, rehearing denied, certiorari denied 114 S.Ct. 688, 510 U.S. 1043, 126 L.Ed.2d 655.
Telecommunications
1440
Informer who acted under supervision of government investigators was acting under color of
law, within this section. U.S. v. Marcello, E.D.La.1981, 508 F.Supp. 586, affirmed 703 F.2d
805, rehearing denied 707 F.2d 515, rehearing denied 708 F.2d 720, certiorari denied 104 S.Ct.
341, 464 U.S. 935, 78 L.Ed.2d 309, post-conviction relief granted 876 F.2d 1147.
52. Prison monitoring
Inmate's express acceptance of having his calls recorded as condition of using telephone
constituted consent to interception of telephone calls within meaning of exception to
requirements of Federal Wiretap Act. U.S. v. Footman, C.A.1 (Mass.) 2000, 215 F.3d 145,
habeas corpus dismissed 2005 WL 1631105. Telecommunications
1440
No court decisions or legislative authority warranted modification of permanent injunction
issued pursuant to settlement stipulation in civil rights action by inmates against prison officials,
which inter alia prohibited prison officials from intercepting and monitoring inmates' telephone
calls; to allow officials to monitor inmates' telephone calls; federal and state wiretap laws did
not clearly support officials' position that intercepting and monitoring inmates' telephone calls
were allowed. Langton v. Hogan, C.A.1 (Mass.) 1995, 71 F.3d 930, rehearing and suggestion for
rehearing en banc denied. Civil Rights
1454
Taped telephone conversations in which prison inmate attempted to arrange escape were
admissible because inmate, who was instructed at prison orientation that inmate telephone calls
were monitored and recorded, signed form indicating that he was aware of prison's telephone
policy, and, thus, impliedly consented to taping of his phone conversations. U.S. v. Horr, C.A.8
(Minn.) 1992, 963 F.2d 1124, certiorari denied 113 S.Ct. 143, 506 U.S. 848, 121 L.Ed.2d 95.
Prisons
4(7)
Title III of the Omnibus Crime Control and Safe Streets Act dealing with wiretapping applies to
prison monitoring. U.S. v. Amen, C.A.2 (N.Y.) 1987, 831 F.2d 373, certiorari denied 108 S.Ct.
1573, 485 U.S. 1021, 99 L.Ed.2d 889. Prisons
4(6)
This chapter, prohibiting judicially unauthorized interception of "any wire or oral
communication," applied to monitoring of telephones used by prison inmates; however, where
monitoring took place pursuant to policy statement issued by Federal Bureau of Prisons as well
as local prison rules, telephone rules were posted, and prison inmates had reasonable notice that
monitoring of their conversations might occur, monitoring took place within ordinary course of
correctional officer's duties and was permissible under exception to this chapter, permitting
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 79
18 U.S.C.A. § 2511
interception of communication over equipment used by an investigative or law enforcement
officer in the ordinary course of his duties. U. S. v. Paul, C.A.6 (Ky.) 1980, 614 F.2d 115,
certiorari denied 100 S.Ct. 2165, 446 U.S. 941, 64 L.Ed.2d 796. Telecommunications
1440
Defendant's telephone calls from prison phones were made with implied consent to monitoring
and taping of conversation, and with no legitimate expectation of privacy, where intercepted
communications were made during conversations with government agent, inmate-turnedinformant, and another government witness, each of whom were acting under color of law and
had given prior consent to interception of transmission. U.S. v. Escobar, E.D.N.Y.1994, 842
F.Supp. 1519. Telecommunications
1440
A prisoner did not consent to monitoring of his phone calls by using prison phones, for purposes
of prisoner's claim under Title III of Omnibus Crime Control and Safe Streets Act, unless it
could be shown that warden gave notice to prisoner, alone or in conjunction with others, that
monitoring system was in place. Kimberlin v. Quinlan, D.D.C.1991, 774 F.Supp. 1, reversed 6
F.3d 789, 303 U.S.App.D.C. 330, rehearing en banc denied 17 F.3d 1525, 305 U.S.App.D.C.
172, certiorari granted 115 S.Ct. 929, 513 U.S. 1123, 130 L.Ed.2d 876, vacated 115 S.Ct. 2552,
515 U.S. 321, 132 L.Ed.2d 252, on remand. Prisons
4(6)
Inmate had no cause of action for telephone company's alleged practice of telling answering
party on collect long distance calls that caller is inmate. Stevens v. U.S. Sprint Telephone Co.,
D.Kan.1991, 755 F.Supp. 972, appeal dismissed 936 F.2d 584. Torts
424
Federal prison officials' routine and random monitoring of inmates' personal telephone calls for
sole purpose of ensuring security and orderly management of institution was permissible under
this section, which excludes from proscription of this chapter the interception of communications
over equipment used by investigative or law enforcement officer in ordinary course of his duties,
since officials fell within definition of investigative or law enforcement officers, and officials'
telephone monitoring of inmates' personal telephone calls was in ordinary course of officials'
duties. Crooker v. U. S. Dept. of Justice, D.C.Conn.1980, 497 F.Supp. 500. Prisons
4(6)
53. Attorney-client privilege
Client's communications with his attorneys concerning wiretapping of telephone and recording
of conversations of third party were privileged, even though party bringing action under
Omnibus Crime Control and Safe Streets Act for illegal wiretapping established prima facie case
that client had violated wiretapping statute, where there was no evidence that client
communicated with attorneys to assist him in wiretapping. Sound Video Unlimited, Inc. v.
Video Shack Inc., N.D.Ill.1987, 661 F.Supp. 1482. Witnesses
222
Party seeking to require attorneys for client to testify as to communications with clients
concerning wiretapping of parties' telephone established prima facie case that client knew or
recklessly disregarded that his wiretapping activities were illegal, where wiretapping equipment
was not readily available, client had expertise in telecommunications, and client installed device
after normal business hours, took care to conceal it, and instructed secretary to discard original
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 80
18 U.S.C.A. § 2511
transcripts made from tapes. Sound Video Unlimited, Inc. v. Video Shack Inc., N.D.Ill.1987,
661 F.Supp. 1482. Witnesses
222
54. Spousal immunity
No implied exception in Title III of the Omnibus Crime Control and Safe Streets Acts existed for
interspousal wiretapping within the marital home; overruling Simpson v. Simpson, 490 F.2d 803.
Glazner v. Glazner, C.A.11 (Ala.) 2003, 347 F.3d 1212. Telecommunications
1440
Not all wiretap interceptions involving spouses will be actionable; interceptions must be
intentional, intercepting spouse must have knowledge that information was obtained through
interception of communication in violation of section, and party being intercepted must not have
consented. Thompson v. Dulaney, C.A.10 (Utah) 1992, 970 F.2d 744, on remand 838 F.Supp.
1535, 139 A.L.R. Fed. 765. Telecommunications
1436
There is no interspousal immunity exception under federal wiretapping statutes. Platt v. Platt,
C.A.8 (Mo.) 1989, 951 F.2d 159. Telecommunications
1441
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 applies to interspousal
wiretapping within marital home. Heggy v. Heggy, C.A.10 (Okla.) 1991, 944 F.2d 1537,
certiorari denied 112 S.Ct. 1514, 503 U.S. 951, 117 L.Ed.2d 651. Telecommunications
1440
Title III, which prohibits the interception, use, or disclosure of wire communications by any
person except as specifically provided, applies to conduct of one spouse in wiretapping telephone
communications of other spouse within marital home. Kempf v. Kempf, C.A.8 (Mo.) 1989, 868
F.2d 970. Telecommunications
1440
Common-law doctrine of interspousal immunity was based on the legal fiction of marital
identity--in the eyes of the law the husband and wife were considered one person and that person
was the husband and for such reason it was impossible at common law to maintain a tort action
between man and wife; however, husbands and wives were always regarded as separate
individuals in criminal law. U. S. v. Jones, C.A.6 (Tenn.) 1976, 542 F.2d 661. Husband And
Wife
107; Husband And Wife
205(2)
No immunity exception to liability under Title III of Omnibus Crime Control and Safe Streets
Act ("Wiretap Act") existed for interspousal interception of telephone communications, and
therefore defendant was liable for interception violations; defendant intentionally intercepted
telephone conversations between his wife and another man. Lombardo v. Lombardo,
N.D.Ind.2002, 192 F.Supp.2d 885. Telecommunications
1441
Divorced wife who voluntarily taped former husband's conversations with their children had
intent required for federal wiretapping violation, even if she did not act with bad purpose or in
disregard of law. Thompson v. Dulaney, D.Utah 1993, 838 F.Supp. 1535, 139 A.L.R. Fed. 765.
Telecommunications
1440
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 81
18 U.S.C.A. § 2511
Husband was liable under federal wiretapping statute for unauthorized interception and recording
of telephone conversations between third party and his wife, as statute prohibits all unauthorized
interspousal wiretapping committed within marital home. Walker v. Carter, C.D.Ill.1993, 820
F.Supp. 1095. Telecommunications
1437
Federal wiretapping statute applies to interspousal surveillance within marital home. Heggy v.
Heggy, W.D.Okla.1988, 699 F.Supp. 1514. Telecommunications
1436
Evidence indicated that defendant's wife freely entered into agreement to tape conversations with
defendant; thus, statements were not obtained in violation of wiretap statute [18 U.S.C.A. §
2511(2)(c)]. U.S. v. Estes, D.C.Vt.1985, 609 F.Supp. 564. Telecommunications
1453
55. Standing to maintain action
Private right of action existed under Electronic Communications Privacy Act (ECPA) for the
unauthorized interception of encrypted satellite television broadcasts; ECPA provision prohibited
intentionally intercepting, endeavoring to intercept, or procuring another to intercept or endeavor
to intercept encrypted electronic communications, another provision of ECPA expressly
authorized private suits by any person whose electronic communication was intercepted in
violation of ECPA, and legislative history did not support a contrary conclusion. DIRECTV,
Inc. v. Pepe, C.A.3 (N.J.) 2005, 431 F.3d 162, 78 U.S.P.Q.2d 1612. Telecommunications
1298
Particular defendants lacked standing to complain of admissibility of tape of telephone
conversation with government informant where neither of such particular defendants had
legitimate expectation of privacy either as party to conversation or through possessory interest in
the tape. U. S. v. Mendoza, C.A.5 (Tex.) 1978, 574 F.2d 1373, rehearing denied 579 F.2d 644,
certiorari denied 99 S.Ct. 584, 439 U.S. 988, 58 L.Ed.2d 661. Criminal Law
394.5(2)
Management employees of textile corporation charged with knowingly and willfully
intercepting, endeavoring to intercept, and procuring other persons to intercept and endeavor to
intercept certain oral communications being made by persons engaged in organizing union at
corporation's textile plant had standing to challenge validity of par. (1) (a) of this section as
applied to them and to require that prosecution prove all essential elements of crime with which
they were charged and that all such elements be submitted to jury for resolution. U. S. v.
Burroughs, C.A.4 (S.C.) 1977, 564 F.2d 1111. Constitutional Law
42.3(1);
Telecommunications
1453
Defendant who was not party to telephone conversation and had no legitimate expectation of
privacy either through participation in the conversation or through possessory interest in tape
recordings lacked standing to contest admissibility of the transcripts on ground of alleged failure
of compliance with applicable state and federal laws in recording conversation. U. S. v. Ransom,
C.A.5 (Ga.) 1975, 515 F.2d 885, rehearing denied 520 F.2d 944, certiorari denied 96 S.Ct. 1412,
424 U.S. 944, 47 L.Ed.2d 349, rehearing denied 96 S.Ct. 1687, 425 U.S. 945, 48 L.Ed.2d 189.
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 82
18 U.S.C.A. § 2511
Criminal Law
394.5(2)
Electronic Communications Privacy Act, which created civil cause of action for unauthorized
interception, disclosure, or intentional use of communication, did not provide civil cause of
action against defendant based on his alleged conduct in endeavoring to intercept and procuring
others to intercept or endeavor to intercept transmissions of provider of satellite television
programs. DirecTV, Inc. v. Regall, E.D.Wis.2004, 327 F.Supp.2d 986. Telecommunications
1298
Former wife could not assert rights of others who may have called former husband's telephone
and had their conversations tape recorded by former husband. Janecka v. Franklin,
S.D.N.Y.1987, 684 F.Supp. 24, affirmed 843 F.2d 110. Telecommunications
1440
Since early wiretap orders formed basis for findings of probable cause as to later wiretap orders,
all defendants had standing to challenge the wiretap orders, even though not all defendants were
subjects of the early orders. U.S. v. Marcello, E.D.La.1981, 508 F.Supp. 586, affirmed 703 F.2d
805, rehearing denied 707 F.2d 515, rehearing denied 708 F.2d 720, certiorari denied 104 S.Ct.
341, 464 U.S. 935, 78 L.Ed.2d 309, post-conviction relief granted 876 F.2d 1147.
Telecommunications
1479
56. Venue
Venue of suit brought under federal wiretap statute seeking injunction barring transmission of
television program was proper in the Southern District of New York; all defendants resided in
that district and alleged interception of message took place there. Berger v. King World
Productions, Inc., E.D.Mich.1990, 732 F.Supp. 766. Federal Courts
74
57. Indictments
Parallel elements of offenses under Electronic Communications Privacy Act (ECPA) concerning
"intercept" and "access" of electronic communications, as alleged in separate counts charging
that defendant listened to stored voice mail messages intended for others, were indistinguishable
for purposes of Blockburger analysis, and thus, counts were multiplicitous in violation of double
jeopardy clause. U.S. v. Moriarty, D.Mass.1997, 962 F.Supp. 217. Double Jeopardy
139.1
58. Discovery
In civil antitrust action against manufacturers of agricultural products, audiorecordings secretly
made by vice president of one manufacturer during criminal antitrust investigation were not
protected from discovery by Title III, even if vice president was not acting under color of law
when recordings were made; recordings were not made for a criminal or tortious purpose. In re
High Fructose Corn Syrup Antitrust Litigation, C.A.7 (Ill.) 2000, 216 F.3d 621, certiorari denied
121 S.Ct. 483, 531 U.S. 993, 148 L.Ed.2d 457. Telecommunications
1440
Plaintiff, which alleged that unknown individual, in his capacity as employee or agent of
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 83
18 U.S.C.A. § 2511
computer manufacturer, initiated, directed and managed unlawful attempts to gain access to
plaintiff's computer server in violation of Computer Fraud and Abuse Act, Stored Wire and
Electronic Communications Act, and Federal Wiretap Act, was not entitled to post-complaint
discovery from computer manufacturer rather than immediate dismissal, since complaint failed
even to allege the requisite statutory elements to support an action against manufacturer; ultimate
purpose of the requested discovery was to determine the identity of the unknown individual
mentioned in the complaint. Butera & Andrews v. International Business Machines Corp.,
D.D.C.2006, 456 F.Supp.2d 104. Federal Civil Procedure
1828
Government's warrantless monitoring of contents of communications with parties outside the
United States linked to terrorist organizations was not a state secret, and thus state secrets
privilege would not prevent telecommunications provider from disclosing whether it received a
certification authorizing its assistance to the government as defense in action based on its
participation in alleged warrantless surveillance program; government has opened the door for
judicial inquiry by publicly confirming and denying material information about its monitoring of
communication content. Hepting v. AT & T Corp., N.D.Cal.2006, 439 F.Supp.2d 974.
Witnesses
216(1)
In civil action for allegedly intercepting, tape recording, and threatening to disclose contents of
plaintiffs' personal telephone conversations in violation of this chapter, admission by one
defendant to intercepting and recording some of plaintiffs' telephone conversations did not
establish the illegality of the interception and recording so as to prohibit, under this section,
disclosure of recordings to defendants' attorney, as it could not be determined whether he might
effectively invoke a statutory exception to the recording, such as consent. McQuade v. Michael
Gassner Mechanical & Elec. Contractors, Inc., D.C.Conn.1984, 587 F.Supp. 1183. Federal Civil
Procedure
1581
59. Searches and seizures
Search by Federal Bureau of Investigation agents of home of suspected "blue box" user was not
illegal because warrant for such search had been obtained on basis of information obtained from
telephone company's lawful electronic surveillance of suspect's telephone lines. U. S. v. Auler,
C.A.7 (Wis.) 1976, 539 F.2d 642, certiorari denied 97 S.Ct. 1132, 429 U.S. 1104, 51 L.Ed.2d
555. Searches And Seizures
120
60. Admissibility of evidence
Tape of conversation between defendant and ex-wife was admissible under Omnibus Crime
Control and Safe Streets Act, despite defendant's contention that ex-wife made tape in order to
blackmail him, in light of finding that ex-wife's purpose in taping conversation was to turn tape
over to government in hope of obtaining better deal for herself. U.S. v. Zarnes, C.A.7 (Ill.) 1994,
33 F.3d 1454, rehearing and suggestion for rehearing en banc denied, certiorari denied 115 S.Ct.
2286, 515 U.S. 1126, 132 L.Ed.2d 288. Criminal Law
394.3
Tape recorded telephone calls, made in order to obtain accurate records of conversations, are
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 84
18 U.S.C.A. § 2511
admissible under Omnibus Crime Control and Safe Streets Act even if recording is made in
hopes of producing evidence of an illegal conspiracy. U.S. v. Dale, C.A.D.C.1993, 991 F.2d
819, 301 U.S.App.D.C. 110, rehearing denied, certiorari denied 114 S.Ct. 286, 510 U.S. 906, 126
L.Ed.2d 236, certiorari denied 114 S.Ct. 650, 510 U.S. 1030, 126 L.Ed.2d 607. Criminal Law
438.1
In prosecution of sheriff for intentionally intercepting telephone conversations of third parties
without their knowledge or consent, trial court properly excluded, as tangential, defendant's
proffered testimony of his troubles with previous sheriff, offered to establish harassing phone
calls made to him as proper motive for his automatic taping. U.S. v. Townsend, C.A.2 (Vt.)
1993, 987 F.2d 927, 122 A.L.R. Fed. 825. Criminal Law
338(7)
Defendant failed to establish that a tape recording made by a participant in telephone
conversation involving the defendant was made for purpose of committing criminal or tortious
act and, therefore, tape recording was admissible. U.S. v. Truglio, C.A.4 (W.Va.) 1984, 731
F.2d 1123, certiorari denied 105 S.Ct. 197, 469 U.S. 862, 83 L.Ed.2d 130. Criminal Law
394.3
Fact that two tapes of defendant's telephone conversations were inaudible did not render the
remaining four tapes, which were clearly audible and complete, so untrustworthy as to be
inadmissible. U.S. v. Jones, C.A.5 (La.) 1982, 693 F.2d 343. Criminal Law
438.1
Evidence of proposed break in by one defendant was relevant and admissible, in prosecution for
illegal wiretapping, where defendant was brought into group by another defendant both to
perform wiretap and to commit the break in, and defendants' discussions about the proposed
break in were intertwined with conversations about the wiretapping. U. S. v. Lentz, C.A.5 (Tex.)
1980, 624 F.2d 1280, rehearing denied 632 F.2d 894, certiorari denied 101 S.Ct. 1696, 450 U.S.
995, 68 L.Ed.2d 194. Criminal Law
369.2(3.1)
Tape recordings which are only partially unintelligible are admissible unless those portions are
so substantial as to render the recording as a whole untrustworthy and determination as to
trustworthiness of tape recording is left to sound discretion of trial judge. U. S. v. Llinas, C.A.5
(Fla.) 1979, 603 F.2d 506, certiorari denied 100 S.Ct. 1030, 444 U.S. 1079, 62 L.Ed.2d 762.
Criminal Law
438.1
In prosecution for electronic eavesdropping, trial court did not err in admitting testimony of
alleged coconspirator to the effect that he had become totally and mentally disabled as a result of
his concern over the illegal acts which he had committed at defendant's discretion, since alleged
coconspirator only testified that he suffered "mental anguish" from "worry" over having
"violated the law," and details of his mental condition were explored at length by defendant's
counsel in cross-examination. U. S. v. Duncan, C.A.4 (N.C.) 1979, 598 F.2d 839, certiorari
denied 100 S.Ct. 148, 444 U.S. 871, 62 L.Ed.2d 96. Criminal Law
508(1)
61. Weight and sufficiency of evidence
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 85
18 U.S.C.A. § 2511
Evidence supported finding that counsel knew or had reason to know that client's interceptions of
employee telephone calls violated federal wiretapping statute, thereby rendering counsel liable
for disclosure and use of contents of intercepted communications; good faith defense did not
apply where any belief on counsel's part that statutory exceptions applied was premised only
upon mistakes of law. Williams v. Poulos, C.A.1 (Me.) 1993, 11 F.3d 271. Attorney And Client
26
Ownership of home and telephone by wife's parents and their conduct in hiring lawyers and
experts for wife's custody suit were not basis for holding them liable to husband under Title III
for wife's interception from home of husband's telephone conversations with child. Thompson v.
Dulaney, C.A.10 (Utah) 1992, 970 F.2d 744, on remand 838 F.Supp. 1535, 139 A.L.R. Fed. 765.
Telecommunications
1437
There was sufficient factual basis to find defendants in violation of section of wiretap statute
prohibiting interception of oral communications through use of a device which transmits
communications by radio; defendants allegedly used an FM wireless miniature microphone to
intercept and record oral communications between participants in closed executive session of
city council. U.S. v. Anaya, C.A.9 (Cal.) 1985, 779 F.2d 532. Telecommunications
1453
In prosecution for conspiracy to import and possess cocaine with intent to distribute, there was
sufficient evidence to support district court's finding that coconspirator consented to interception
of his conversations with defendant, notwithstanding contention that inherently coercive nature
of arrest and interrogation of coconspirator, when combined with fact that coconspirator was
alien unaccustomed to United States legal system, established lack of consent. U. S. v. Llinas,
C.A.5 (Fla.) 1979, 603 F.2d 506, certiorari denied 100 S.Ct. 1030, 444 U.S. 1079, 62 L.Ed.2d
762. Telecommunications
1440
Affidavits of FBI stating that, other than the one consensual monitoring of defendant's ransom
telephone conversation, neither the named defendant nor any of his known aliases was ever
monitored by any electronic device of the FBI sufficiently negated the use of illegal wiretaps. U.
S. v. Van Orsdell, C.A.2 (N.Y.) 1975, 521 F.2d 1323, certiorari denied 96 S.Ct. 796, 423 U.S.
1059, 46 L.Ed.2d 650. Criminal Law
394.5(1); Telecommunications
1477
Absent evidence that subscriber actually used "pirate" device capable of intercepting satellite TV
signals for purpose of receiving programming he did not pay for, evidence in satellite TV
service's suit against purchaser was insufficient to show that he violated section of Electronic
Communications Privacy Act that prohibits intentionally intercepting or endeavoring to intercept
any wire, oral or electronic communication. DirecTV v. Deskin, D.Conn.2005, 363 F.Supp.2d
254. Telecommunications
1299
There was no evidence, as opposed to speculation and conclusory allegations, that radio station
and its broadcast journalist who intercepted and recorded journalist's telephone conversation with
state official without official's consent and later broadcast portions of recorded conversation did
so "for the purpose of committing any criminal or tortious act," precluding official's recovery
against station and journalist under Federal Wiretap Statute; intent, rather than ultimate liability
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 86
18 U.S.C.A. § 2511
under state defamation or other tort law, was deciding factor. Vazquez-Santos v. El Mundo
Broadcasting Corp., D.Puerto Rico 2003, 283 F.Supp.2d 561. Telecommunications
1448
Wiretap of home telephone of former chief of the National Security Council Policy Planning
Group until former chief lost status as consultant with top secret security clearance was
objectively reasonable due to concern with national security and was within qualified immunity
of former national security advisor and former chief administrative aide to President, even
though former chief resigned approximately eight months before losing status as consultant, even
if former chief was not intentionally leaking information, and even if conversations reported by
Federal Bureau of Investigation involved matters of political interest; former chief had
increasing motivation to leak and possessed insider knowledge making him potential source of
leaks that continued to plague foreign policymaking; and wiretap did produce information
relative to leaks. Halperin v. Kissinger, D.D.C.1989, 723 F.Supp. 1535. Telecommunications
1441
On motion to suppress evidence obtained in wiretap, evidence established that person with whom
defendant had had telephone conversations had given prior written consent to monitoring and
recording conversations, that such consent had not been obtained by promises, force, threats or
coercion but had been given freely, voluntarily and intelligently and that owner of telephone
involved had also given prior consent to it being used, monitored and recorded. U. S. v. Bryson,
W.D.Okla.1975, 418 F.Supp. 818. Criminal Law
394.6(4)
62. Summary judgment
Genuine issue of material fact as to whether postal employee had subjective expectation that
conversations taking place near his work station were free from electronic interception by
supervisors and whether such expectation was objectively justified under circumstances
precluded grant of summary judgment in favor of supervisors in employee's action under
antiwiretap statute; employee presented affidavit that he did not give permission to supervisors to
monitor any conversations at work station, and although employee might have expected
conversations uttered in normal tone of voice to be overheard by those standing nearby, it was
highly unlikely that he would have expected his conversations to be electronically intercepted
and monitored in office in another part of building. Walker v. Darby, C.A.11 (Ala.) 1990, 911
F.2d 1573. Federal Civil Procedure
2519
Genuine issue of material fact, as to when satellite TV service first had reasonable opportunity to
discover purchaser of pirate access devices was violating Electronic Communications Policy Act
(Wiretap Act) by allegedly intercepting or engaging in unauthorized use of its satellite signal,
precluded summary judgment as to when claims accrued and thus as to whether limitations
barred civil damages claims against purchaser of devices. DIRECTV, Inc. v. Rodkey,
W.D.Pa.2005, 369 F.Supp.2d 587. Federal Civil Procedure
2519
Genuine issue of material fact as to whether satellite television subscriber used pirate access
devices shipped to her address to intercept broadcaster's signals precluded summary judgment in
broadcaster's action against subscriber for violation of the Cable Communications Policy Act and
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 87
18 U.S.C.A. § 2511
statute barring interception and disclosure of electronic communications. DIRECTV, Inc. v.
Hosey, D.Kan.2004, 333 F.Supp.2d 1102. Federal Civil Procedure
2519
63. Scope of review
Where district court dismissed actions because it concluded that plaintiffs did not allege
judicially cognizable claims under Privacy Act, Court of Appeals' review was plenary. Shubert
v. Metrophone, Inc., C.A.3 (Pa.) 1990, 898 F.2d 401. Federal Courts
763.1
18 U.S.C.A. § 2511, 18 USCA § 2511
Current through P.L. 110-17 approved 04-09-07
Copr. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
END OF DOCUMENT
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.