# Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping

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URL: https://www.frixlaw.com/law-library/documents/crs%3A98-326

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** October 9, 2012
- **Citation:** 98-326

## Text

Privacy: An Overview of Federal Statutes
Governing Wiretapping and
Electronic Eavesdropping
(name redacted)
Legislative Attorney
(name redacted)
Senior Specialist in American Public Law
October 9, 2012

Congressional Research Service
7-....
www.crs.gov
98-326

CRS Report for Congress
Prepared for Members and Committees of Congress

Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping

Summary
This report provides an overview of the Electronic Communications Privacy Act (ECPA) and the
Foreign Intelligence Surveillance Act (FISA). ECPA consists of three parts. The first, often
referred to as Title III, outlaws wiretapping and electronic eavesdropping, except as otherwise
provided. The second, the Stored Communications Act, governs the privacy of, and government
access to, the content of electronic communications and to related records. The third outlaws the
use and installation of pen registers and of trap and trace devices, unless judicially approved for
law enforcement or intelligence gathering purposes.
FISA consists of seven parts. The first, reminiscent of Title III, authorizes electronic surveillance
in foreign intelligence investigations. The second authorizes physical searches in foreign
intelligence cases. The third permits the use and installation of pen registers and trap and trace
devices in the context of a foreign intelligence investigation. The fourth affords intelligence
officials access to business records and other tangible items. The fifth directs the Attorney
General to report to Congress on the specifics of the exercise of FISA authority. The sixth,
scheduled to expire on December 31, 2017, permits the acquisition of the communications of
targeted overseas individuals and entities. The seventh creates a safe harbor from civil liability for
those who assist or have assisted in the collection of information relating to the activities of
foreign powers and their agents.
This report includes the text of the Electronic Communications Privacy Act and the Foreign
Intelligence Surveillance Act, as well as appendixes listing the citations to state statutes that
correspond to various aspects of ECPA. The report is available in an abridged form without
footnotes, attributions to authority, the text of ECPA or FISA, or appendixes found here as CRS
Report 98-327, Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and
Electronic Eavesdropping, by (name redacted) and (name redacted). CRS Report R41733,
Privacy: An
Overview of the Electronic Communications Privacy Act, by (name redacted), replicates portions of
this report. Related CRS reports include CRS Report R42725, Reauthorization of the FISA
Amendments Act, by (name redacted), and CRS Report R40138,Amendments to the Foreign
Intelligence Surveillance Act (FISA) Extended Until June 1, 2015, by the same author.

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Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping

Contents
Introduction...................................................................................................................................... 1
Background ...................................................................................................................................... 1
Title III: Prohibitions ....................................................................................................................... 6
Illegal Wiretapping and Electronic Eavesdropping ................................................................... 7
Person .................................................................................................................................. 7
Intentional ........................................................................................................................... 7
Jurisdiction .......................................................................................................................... 8
Interception ......................................................................................................................... 9
Content .............................................................................................................................. 10
By Electronic, Mechanical, or Other Device .................................................................... 10
Wire, Oral, or Electronic Communications ....................................................................... 12
Endeavoring to Intercept ................................................................................................... 13
Exemptions: Consent Interceptions ................................................................................... 13
Exemptions: Publicly Accessible Radio Communications ............................................... 14
Exemptions: Government Officials ................................................................................... 15
Exemptions: Communication Service Providers ............................................................... 16
Domestic Exemptions ....................................................................................................... 16
Illegal Disclosure of Information Obtained by Wiretapping or Electronic
Eavesdropping ...................................................................................................................... 17
Illegal Use of Information Obtained by Unlawful Wiretapping or Electronic
Eavesdropping ...................................................................................................................... 20
Shipping, Manufacturing, Distributing, Possessing or Advertising Wire, Oral, or
Electronic Communication Interception Devices ................................................................. 21
Title III: Government Access ......................................................................................................... 23
Law Enforcement Wiretapping and Electronic Eavesdropping............................................... 23
Title III: Consequences of a Violation ........................................................................................... 29
Criminal Penalties ............................................................................................................. 29
Civil Liability .................................................................................................................... 30
Civil Liability of the United States.................................................................................... 32
Administrative Action ....................................................................................................... 32
Attorney Discipline ........................................................................................................... 32
Exclusion of Evidence....................................................................................................... 33
Stored Communications Act (SCA) ............................................................................................... 35
SCA: Prohibitions.................................................................................................................... 35
SCA: Government Access ....................................................................................................... 40
SCA: Consequences ................................................................................................................ 45
Pen Registers and Trap and Trace Devices (PR/T&T) .................................................................. 46
PR/T&T: Prohibitions.............................................................................................................. 46
PR/T&T: Government Access ................................................................................................. 47
PRT&T: Consequences ............................................................................................................ 48
Foreign Intelligence Surveillance Act............................................................................................ 50
Introduction ............................................................................................................................. 50
Foreign Intelligence Surveillance Court .................................................................................. 50
FISA Electronic Surveillance and Physical Search Orders ..................................................... 51

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Government Access ........................................................................................................... 51
Exclusivity......................................................................................................................... 55
Prohibitions and Consequences ......................................................................................... 56
Pen Registers and Trap and Trace Devices .............................................................................. 60
Government Access ........................................................................................................... 60
Prohibition and Consequences .......................................................................................... 60
Tangible Items ......................................................................................................................... 61
Overseas FISA Targets (Expires December 31, 2017) ............................................................ 62
FISA Reporting Requirements................................................................................................. 67
Electronic Communications Privacy Act (Text) ............................................................................ 67
Chapter 119 (“Title III”) .......................................................................................................... 67
18 U.S.C. 2510. Definitions. ............................................................................................. 67
18 U.S.C. 2511. Interception and disclosure of wire, oral, or electronic
communications prohibited. ........................................................................................... 69
18 U.S.C. 2512. Manufacture, distribution, possession, and advertising of wire,
oral, or electronic communication intercepting devices prohibited. .............................. 73
18 U.S.C. 2513. Confiscation of wire, oral, or electronic communication
interception devices........................................................................................................ 73
18 U.S.C. 2515. Prohibition of use as evidence of intercepted wire or oral
communications. ............................................................................................................ 74
18 U.S.C. 2516. Authorization for interception of wire, oral, or electronic
communications. ............................................................................................................ 74
18 U.S.C. 2517. Authorization for disclosure and use of intercepted wire, oral, or
electronic communications............................................................................................. 76
18 U.S.C. 2518. Procedure for interception of wire, oral, or electronic
communications. ............................................................................................................ 77
18 U.S.C. 2519. Reports concerning intercepted wire, oral, or electronic
communications. ............................................................................................................ 81
18 U.S.C. 2520. Recovery of civil damages authorized.................................................... 82
18 U.S.C. 2521. Injunction against illegal interception. ................................................... 83
18 U.S.C. 2522. Enforcement of the Communications Assistance for Law
Enforcement Act. ........................................................................................................... 83
Chapter 121 (“Stored Communications Act”) ......................................................................... 84
18 U.S.C. 2701. Unlawful access to stored communications............................................ 84
18 U.S.C. 2702. Voluntary disclosure of customer communications or records. .............. 84
18 U.S.C. 2703. Required disclosure of customer communications or records. ............... 86
18 U.S.C. 2704. Backup preservation. .............................................................................. 87
18 U.S.C. 2705. Delayed notice. ....................................................................................... 88
18 U.S.C. 2706. Cost reimbursement. ............................................................................... 89
18 U.S.C. 2707. Civil action. ............................................................................................ 90
18 U.S.C. 2708. Exclusivity of remedies. ......................................................................... 91
18 U.S.C. 2709. Counterintelligence access to telephone toll and
transactional records....................................................................................................... 91
18 U.S.C. 2711. Definitions for chapter. ........................................................................... 92
18 U.S.C. 2712. Civil Action against the United States. ................................................... 92
Chapter 206 (“Pen Register & Trap and Trace Devices”) ....................................................... 93
18 U.S.C. 3121. General prohibition on pen register and tape and trace device
use; exception. ................................................................................................................ 93
18 U.S.C. 3122. Application for an order for a pen register or a trap and
trace device. ................................................................................................................... 94

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18 U.S.C. 3123. Issuance of an order for a pen register or a trap and trace device........... 94
18 U.S.C. 3124. Assistance in installation and use of a pen register or a trap and
trace device. ................................................................................................................... 95
18 U.S.C. 3125. Emergency pen register and trap and trace device installation. .............. 96
18 U.S.C. 3126. Reports concerning pen registers and trap and trace devices. ................ 97
18 U.S.C. 3127. Definitions for chapter. ........................................................................... 97
Foreign Intelligence Surveillance Act (Text) ................................................................................. 98
Subchapter I (Electronic Surveillance) .................................................................................... 98
50 U.S.C. 1801. Definitions. ............................................................................................. 98
50 U.S.C. 1802. Electronic surveillance authorization without court order;
certification by Attorney General; reports to Congressional committees;
transmittal under seal; duties and compensation of communication common
carrier; applications; jurisdiction of court. ................................................................... 101
50 U.S.C. 1803. Designation of judges. .......................................................................... 102
50 U.S.C. 1804. Applications for court orders. ............................................................... 103
50 U.S.C. 1805. Issuance of order. .................................................................................. 105
50 U.S.C. 1806. Use of information. ............................................................................... 108
50 U.S.C. 1807. Report to Administrative Office of the United States Courts and
to Congress. .................................................................................................................. 110
50 U.S.C. 1808. Report of Attorney General to Congressional committees;
limitation on authority or responsibility of information gather activities of
Congressional committees; report of Congressional committees to Congress. ........... 111
50 U.S.C. 1809. Criminal sanctions. ............................................................................... 111
50 U.S.C. 1810. Civil Liability........................................................................................ 112
50 U.S.C. 1811. Authorization during time of war. ......................................................... 112
50 U.S.C. 1812. Statement of Exclusive Means by Which Electronic Surveillance
and Interception of Certain Communications May Be Conducted. ............................. 112
Subchapter II (Physical Searches) ......................................................................................... 112
50 U.S.C. 1821. Definitions ............................................................................................ 112
50 U.S.C. 1822. Authorization of physical searches for foreign
intelligence purposes. ................................................................................................... 113
50 U.S.C. 1823. Application for an order. ....................................................................... 114
50 U.S.C. 1824. Issuance of an order. ............................................................................. 116
50 U.S.C. 1825. Use of information. ............................................................................... 118
50 U.S.C. 1826. Congressional oversight. ...................................................................... 120
50 U.S.C. 1827. Penalties................................................................................................ 120
50 U.S.C. 1828. Civil Liability........................................................................................ 121
50 U.S.C. 1829. Authorization during time of war.......................................................... 121
Subchapter III (Pen Registers & Trap and Trace Devices) .................................................... 121
50 U.S.C. 1841. Definitions. ........................................................................................... 121
50 U.S.C. 1842. Pen registers and trap and trace devices for foreign intelligence
and international terrorism investigations. ................................................................... 121
50 U.S.C. 1843. Authorization during emergencies. ....................................................... 123
50 U.S.C. 1844. Authorization during time of war.......................................................... 124
50 U.S.C. 1845. Use of information. ............................................................................... 124
50 U.S.C. 1846. Congressional oversight. ...................................................................... 126
Subchapter IV (Business Records/Tangible Items) ............................................................... 126
50 U.S.C. 1861. Access to Certain Business Records for Foreign Intelligence and
International Terrorism Investigations. ........................................................................ 126
50 U.S.C. 1862. Congressional oversight. ...................................................................... 130

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Subchapter V (Reporting Requirement) ................................................................................ 131
50 U.S.C. 1871. Semiannual report of the Attorney General .......................................... 131
Subchapter VI (Persons Overseas)(Repealed eff. Dec. 31, 2017) ......................................... 133
50 U.S.C. 1881. Definitions ............................................................................................ 133
50 U.S.C. 1881a. Procedures for targeting certain persons outside the United
States other than United States persons........................................................................ 133
50 U.S.C. 1881b. Certain acquisitions inside the United States targeting United
States persons outside the United States. ..................................................................... 140
50 U.S.C. 1881c. Other acquisitions targeting United States persons outside the
United States. ............................................................................................................... 144
50 U.S.C. 1881d. Joint applications and concurrent authorizations. ............................... 146
50 U.S.C. 1881e. Use of information acquired under this subchapter. ........................... 146
50 U.S.C. 1881f. Congressional Oversight. .................................................................... 147
50 U.S.C. 1881g. Savings provision. .............................................................................. 148
Subchapter VII (Providing Assistance Defense) ................................................................... 148
50 U.S.C. 1885. Definitions. ........................................................................................... 148
50 U.S.C. 1885a. Procedures for implementing statutory defenses. ............................... 149
50 U.S.C. 1885b. Preemption. ......................................................................................... 150
50 U.S.C. 1885c. Reporting. ........................................................................................... 150

Appendixes
Appendix A. State Statutes Outlawing the Interception of Wire(w), Oral(o) and Electronic
Communications(e) .................................................................................................................. 151
Appendix B. Consent Interceptions Under State Law ................................................................. 152
Appendix C. Statutory Civil Liability for Interceptions Under State Law .................................. 153
Appendix D. Court Authorized Interception Under State Law .................................................... 154
Appendix E. State Statutes Regulating Stored Electronic Communications (SE), Pen
Registers (PR) and Trap and Trace Devices (T) ....................................................................... 155
Appendix F. State Computer Crime Statutes ............................................................................... 156

Contacts
Author Contact Information......................................................................................................... 156

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Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping

Introduction
This is an outline of two federal statutes: the Electronic Communications Privacy Act (ECPA) and
the Foreign Intelligence Surveillance Act (FISA).1 Both evolved out of the shadow of the
Supreme Court’s Fourth Amendment jurisprudence. The courts play an essential role in both.
Congress crafted both to preserve the ability of government officials to secure information critical
to the nation’s well-being and to ensure individual privacy. It modeled parts of FISA after features
in ECPA. There are differences, however. ECPA protects individual privacy from the intrusions of
other individuals. FISA has no such concern. FISA authorizes the collection of information about
the activities of foreign powers and their agents, whether those activities are criminal or not.
ECPA’s only concern is crime.

Background
At common law, “eavesdroppers, or such as listen under walls or windows, or the eaves of a
house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a
common nuisance and presentable at the court-leet; or are indictable at the sessions, and
punishable by fine and finding of sureties for [their] good behavior.”2 Although early American
law proscribed common law eavesdropping, the crime was little prosecuted and by the late
1

Portions of this report draw upon a series of earlier reports, no longer available, entitled: Wiretapping and Electronic
Surveillance: A Brief Discussion of Pertinent Supreme Court Cases, A Summary and Compilation of Federal State
Statutes, and a Selected Legal Bibliography (1970); Wiretapping and Electronic Surveillance: A Brief Discussion of
Pertinent Supreme Court Cases, A Summary and Compilation of Federal State Statutes, and a Selected Legal
Bibliography (1971); Wiretapping and Electronic Surveillance: Federal and State Statutes (1974); Taps and Bugs: A
Compilation of Federal and State Statutes Governing the Interception of Wire and Oral Communications (1981); The
Interception of Communications: A Legal Overview of Bugs and Taps (1988); Wiretapping & Electronic Surveillance:
The Electronic Communications Privacy Act and Related Matters (1992); Taps, Bugs & Telephony: An Overview of
Federal Statutes Governing Wiretapping and Electronic Eavesdropping (1998); Privacy: An Overview of Federal
Statutes Governing Wiretapping and Electronic Eavesdropping (2001); id. (2003); id. (2006); id. (2009). Much of what
appears here was used to create a more limited report, CRS Report R41733, Privacy: An Overview of the Electronic
Communications Privacy Act, by (name redacted).
As used in this report “electronic eavesdropping” refers to the use of hidden microphones, recorders and any other
mechanical or electronic means of capturing ongoing communications, other than wiretapping (tapping into telephone
conversations). In previous versions of this report and other earlier writings, it was common to use a more neutral, and
consequently preferred, term—electronic surveillance—at least when referring to law enforcement use. Unfortunately,
continued use of the term “electronic surveillance” rather than “electronic eavesdropping” risks confusion with forms
of surveillance that either have individualistic definitions (e.g., “electronic surveillance” under the Foreign Intelligence
Surveillance Act, 50 U.S.C. 1801(f)), that involve surveillance that does not capture conversation (e.g., thermal
imaging or electronic tracking devices), or that may or may not capture conversation (e.g., the coverage of video
surveillance depends upon the circumstances and the statutory provision question).
Related developments are discussed in CRS Report R42725, Reauthorization of the FISA Amendments Act, by (name r
edacted); CRS Report R40138,
Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1,
2015, by (name redacted); CRS Report R40980,Government Collection of Private Information: Background and Issues
Related to the USA PATRIOT Act Reauthorization, by (name redacted) and (name redacted); CRS Report 97-1025,
Cybercrime: An Overview of the Federal Computer Fraud and Abuse Statute and Related Federal Criminal Laws, by
(name redacted); CRS Report RL33424,Government Access to Phone Calling Activity and Related Records: Legal
Authorities, by (name redacted) and (name redacted); CRS Report RL30677,
The Communications Assistance for Law
Enforcement Act, by (name redacted); and CRS Report RL34693,
Online Data Collection and Disclosure to
Private Entities: Selected Federal Laws and Self-Regulatory Regimes, by (name redacted).
2
4 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 169 (1769).

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Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping

nineteenth century had “nearly faded from the legal horizon.”3 With the invention of the telegraph
and telephone, however, state laws outlawing wiretapping or indiscretion by telephone and
telegraph operators preserved the spirit of the common law prohibition in this country.
Congress enacted the first federal wiretap statute as a temporary measure to prevent disclosure of
government secrets during World War I.4 Later, it proscribed intercepting and divulging private
radio messages in the Radio Act of 1927,5 but did not immediately reestablish a federal wiretap
prohibition. By the time of the landmark Supreme Court decision in Olmstead, however, at least
forty-one of the forty-eight states had banned wiretapping or forbidden telephone and telegraph
employees and officers from disclosing the content of telephone or telegraph messages or both.6
Olmstead was a Seattle bootlegger whose Prohibition Act conviction was the product of a federal
wiretap. He challenged his conviction on three grounds, arguing unsuccessfully that the wiretap
evidence should have been suppressed as a violation of either his Fourth Amendment rights, his
Fifth Amendment privilege against self-incrimination, or the rights implicit in the Washington
state statute that outlawed wiretapping.
For a majority of the Court, writing through Chief Justice Taft, Olmstead’s Fourth Amendment
challenge was doomed by the absence of “an official search and seizure of his person, or such a
seizure of his papers or his tangible material effects, or an actual physical invasion of his house or
curtilage7 for the purposes of making a seizure.”8

3

“Eavesdropping is indictable at the common law, not only in England but in our states. It is seldom brought to the
attention of the courts, and our books contain too few decisions upon it to enable an author to define it with
confidence.... It never occupied much space in the law, and it has nearly faded from the legal horizon.” 1 BISHOP,
COMMENTARIES ON THE CRIMINAL LAW, 670 (1882).
4
40 Stat.1017-18 (1918)(“whoever during the period of governmental operation of the telephone and telegraph systems
of the United States ... shall, without authority and without the knowledge and consent of the other users thereof, except
as may be necessary for operation of the service, tap any telegraph or telephone line ... or whoever being employed in
any such telephone or telegraph service shall divulge the contents of any such telephone or telegraph message to any
person not duly authorized or entitled the receive the same, shall be fined not exceeding $1,000 or imprisoned for not
more than one year or both”); 56 Cong.Rec. 10761-765 (1918).
5
44 Stat. 1172 (1927)(“ ... no person not being authorized by the sender shall intercept any message and divulge or
publish the contents, substance, purpose, effect, or meaning of such intercepted message to any person ... ”).
6
Olmstead v. United States, 277 U.S. 438, 479-80 n.13 (1928)(Brandeis, J., dissenting). Olmstead is remembered most
today for the dissents of Holmes and Brandeis, but for four decades it stood for the view that the Fourth Amendment’s
search and seizure commands did not apply to government wiretapping accomplished without a trespass onto private
property.
7
Curtilage originally meant the land and buildings enclosed by the walls of a castle; in later usage it referred to the
barns, stables, garden plots and the like immediately proximate to a dwelling; it is understood in Fourth Amendment
parlance to describe that area which “harbors those intimate activities associated with domestic life and the privacies of
the home,” United States v. Dunn, 480 U.S. 294, 301 n.4 (1987).
8
277 U.S. at 466. Olmstead had not been compelled to use his phone and so the Court rejected his Fifth Amendment
challenge. 277 U.S.C. at 462. Any violation of the Washington state wiretap statute was thought insufficient to warrant
the exclusion of evidence, 277 U.S. at 466-68. Justice Holmes in his dissent tersely characterized the conduct of federal
wiretappers as “dirty business,” 277 U.S. at 470. The dissent of Justice Brandeis observed that the drafters of the
Constitution “conferred as against the Government, the right to be let alone—the most comprehensive of rights and the
right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government against
privacy of the individual whatever the means employed, must be deemed in violation of the Fourth Amendment,” 277
U.S. at 478-79.

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Chief Justice Taft pointed out that Congress was free to provide protection which the Constitution
did not.9 Congress did so in the 1934 Communications Act by expanding the Radio Act’s
proscription against intercepting and divulging radio communications so as to include
intercepting and divulging radio or wire communications.10
The Federal Communications Act outlawed wiretapping, but it said nothing about the use of
machines to surreptitiously record and transmit face to face conversations.11 In the absence of a
statutory ban the number of surreptitious recording cases decided on Fourth Amendment grounds
surged and the results began to erode Olmstead’s underpinnings.12
Erosion, however, came slowly. Initially the Court applied Olmstead’s principles to the electronic
eavesdropping cases. Thus, the use of a dictaphone to secretly overhear a private conversation in
an adjacent office offended no Fourth Amendment precepts because no physical trespass into the
office in which the conversation took place had occurred.13 Similarly, the absence of a physical
trespass precluded Fourth Amendment coverage of the situation where a federal agent secretly
recorded his conversation with a defendant held in a commercial laundry in an area open to the
public.14 On the other hand, the Fourth Amendment did reach the government’s physical intrusion
upon private property during an investigation, as for example when they drove a “spike mike”
into the common wall of a row house until it made contact with a heating duct for the home in
which the conversation occurred.15
The spike mike case presented something of a technical problem, because there was some
question whether the spike mike had actually crossed the property line of the defendant’s town
house when it made contact with the heating duct. The Court declined to rest its decision on the
technicalities of local property law, and instead found that the government’s conduct had intruded
upon privacy of home and hearth in a manner condemned by the Fourth Amendment.16

9
“Congress may of course protect the secrecy of telephone messages by making them, when intercepted inadmissible
in evidence in federal criminal trials, by direct legislation,” 277 U.S. at 465.
10
48 Stat. 1103-104 (1934), 47 U.S.C. 605 (1940 ed.). The Act neither expressly condemned law enforcement
interceptions nor called for the exclusion of wiretap evidence, but it was read to encompass both, Nardone v. United
States, 302 U.S. 379 (1937); Nardone v. United States, 308 U.S. 321 (1939).
11
Section 605 did ban the interception and divulgence of radio broadcasts but it did not reach the radio transmission of
conversations that were broadcast unbeknownst to all of the parties to the conversation. Late in the game, the FCC
supplied a partial solution when it banned the use of licensed radio equipment to overhear or record private
conversation without the consent of all the parties involved in the conversation, 31 Fed.Reg. 3400 (March 4, 1966),
amending then 47 C.F.R. §§2.701, 15.11. The FCC excluded “operations of any law enforcement offices conducted
under lawful authority,” id.
12
The volume of all Fourth Amendment cases calling for Supreme Court review increased dramatically after Mapp v.
Ohio, 367 U.S. 643 (1961), acknowledged the application of the Fourth Amendment exclusionary rule to the states.
13
Goldman v. United States, 316 U.S. 129 (1942).
14
On Lee v. United States, 343 U.S. 747 (1952).
15
Silverman v. United States, 365 U.S. 505 (1961).
16
“The absence of a physical invasion of the petitioner’s premises was also a vital factor in the Court’s decision in
Olmstead v. United States.... In holding that the wiretapping there did not violate the Fourth Amendment, the Court
noted that the insertions were made without trespass upon any property of the defendants. They were made in the
basement of the large office building. The taps from house lines were made in the streets near the houses. 277 U.S. at
457. There was no entry of the houses or offices of the defendants. 277 U.S. at 464. Relying upon these circumstances,
the Court reasoned that the intervening wires are not part of (the defendant’s) house or office any more than are the
highways along which they are stretched. 277 U.S. at 465.
“Here, by contrast, the officers overheard the petitioners’ conversations only by usurping part of the petitioners’ house
(continued...)

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Each of these cases focused upon whether a warrantless trespass onto private property had
occurred, that is, whether the means of conducting a search and seizure had been so unreasonable
as to offend the Fourth Amendment. Yet in each case, the object of the search and seizure had
been not those tangible papers or effects for which the Fourth Amendment’s protection had been
traditionally claimed, but an intangible, a conversation. This enlarged view of the Fourth
Amendment could hardly be ignored, for “[i]t follows from ... Silverman ... that the Fourth
Amendment may protect against the overhearing of verbal statements as well as against the more
traditional seizure of papers and effects.”17
Soon thereafter the Court repudiated the notion that the Fourth Amendment’s protection was
contingent upon some trespass to real property in Katz v. United States.18 Katz was a bookie
convicted on the basis of evidence gathered by an electronic listening and recording device set up
outside the public telephone booth that Katz used to take and place bets. The Court held that the
gateway for Fourth Amendment purposes stood at that point where an individual should to able to
expect that his or her privacy would not be subjected to unwarranted governmental intrusion.19
One obvious consequence of Fourth Amendment coverage of wiretapping and other forms of
electronic eavesdropping is the usual attachment of the Amendment’s warrant requirement. To
avoid constitutional problems and at the same time preserve wiretapping and other forms of
electronic eavesdropping as a law enforcement tool, some of the states established a statutory
system under which law enforcement officials could obtain a warrant, or equivalent court order,
authorizing wiretapping or electronic eavesdropping.

(...continued)
or office—a heating system which was an integral part of the premises occupied by the petitioners, a usurpation that
was effected without their knowledge and without their consent. In these circumstances we need not pause to consider
whether or not there was a technical trespass under the local property law relating to party walls. Inherent Fourth
Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law . . . .
“The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the
right of a man to retreat into his own home and there be free from unreasonable governmental intrusion ... This Court
has never held that a federal officer may without warrant and without consent physically entrench into a man’s office or
home, there secretly observe or listen, and relate at the man’s subsequent criminal trial what was seen or heard.
“A distinction between the dictaphone employed in Goldman and the spike mike utilized here seemed to the Court of
Appeals too fine a one to draw. The court was unwilling to believe that the respective rights are to be measured in
fractions of inches. But decision here does not turn upon the technicality of a trespass upon a party wall as a matter of
local law. It is based upon the reality of an actual intrusion into a constitutionally protected area. What the Court said
long ago bears repeating now: It may be that it is the obnoxious thing in its mildest and least repulsive form; but
illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight
deviations from legal modes of procedure. Boyd v. United States, 116 U.S. 616, 635. We find no occasion to reexamine Goldman here, but we decline to go beyond it, by even a fraction of an inch,” 365 U.S. at 510-12 (internal
quotation marks omitted).
17

Wong Sun v. United States, 371 U.S. 471, 485 (1963).
389 U.S. 347 (1967).
19
“We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions
that the trespass doctrine there enunciated can no longer be regarded as controlling. The Government’s activities in
electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied
while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth
Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of
the booth can have no constitutional significance.” Later courts seem to prefer the “expectation of privacy” language
found in Justice Harlan’s concurrence: “My understanding of the rule that has emerged from prior decisions is that
there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and,
second, that the expectation be one that society is prepared to recognize as reasonable,” 389 U.S. at 361.
18

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The Court rejected the constitutional adequacy of one of the more detailed of these state statutory
schemes in Berger v. New York.20 The statute was found deficient because of its failure to require:
•

a particularized description of the place to be searched;

•

a particularized description of the crime to which the search and seizure related;

•

a particularized description of the conversation to be seized;

•

limitations to prevent general searches;

•

termination of the interception when the conversation sought had been seized;

•

prompt execution of the order;

•

return to the issuing court detailing the items seized; and

•

any showing of exigent circumstances to overcome the want of prior notice.21

Berger helped persuade Congress to enact Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, a comprehensive wiretapping and electronic eavesdropping statute that not
only outlawed both activities in general terms but that also permitted federal and state law
enforcement officers to use them under strict limitations designed to meet the objections in
Berger.22
A decade later another Supreme Court case persuaded Congress to supplement Title III with a
judicially supervised procedure for the use of wiretapping and electronic eavesdropping in foreign
intelligence gathering situations. When Congress passed Title III there was some question over
the extent of the President’s inherent powers to authorize wiretaps—without judicial approval—in
national security cases. As a consequence, the issue was simply removed from the Title III
scheme.23
After the Court held that the President’s inherent powers were insufficient to excuse warrantless
electronic eavesdropping on purely domestic threats to national security,24 Congress considered it
prudent to augment the foreign intelligence gathering authority of the United States with the
Foreign Intelligence Security Act of 1978 (FISA).25 The FISA provides a procedure for judicial
review and authorization of electronic surveillance and other forms of information gathering for
foreign intelligence purposes.
Two other Supreme Court cases influenced the development of federal law in the area. In United
States v. Miller,26 the Court held that a customer had no Fourth Amendment protected expectation
20

388 U.S. 41 (1967).
388 U.S. at 58-60.
22
87 Stat. 197, 18 U.S.C. 2510 - 2520 (1970 ed.).
23
18 U.S.C. 2511(3)(1970 ed.)(“Nothing contained in this chapter or in section 605 of the Communications Act ... shall
limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation
against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information
deemed essential to the security of the United States, or to protect national security information against foreign
intelligence activities ... ”).
24
United States v. United States District Court, 407 U.S. 297 (1972).
25
92 Stat. 1783, 50 U.S.C. 1801-1862.
26
425 U.S. 435, 441-43 (1976).
21

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of privacy in the records his bank created concerning his transactions with them. These third party
records were therefore available to the government under a subpoena duces tecum rather than a
more narrowly circumscribed warrant.27 In Smith v. Maryland,28 it held that no warrant was
required for the state’s use of a pen register or trap and trace device, if the device merely
identified the telephone numbers for calls made and received from a particular telephone. No
Fourth Amendment search or seizure occurred, the Court held, since the customer had no
justifiable expectation of privacy in information which he knew or should have known the
telephone company might ordinarily capture for billing or service purposes.29
In 1986, Congress enacted in the Electronic Communications Privacy Act (ECPA).30 ECPA
consists of three parts: a revised Title III;31 the Stored Communications Act (SCA);32 and
provisions governing the installation and use of pen registers as well as trap and trace devices.33
Congress has adjusted the components of ECPA and FISA, over the years. It has done so
sometimes in the interests of greater privacy; sometimes in the interest of more effective law
enforcement or foreign intelligence gathering; often with an eye to some combination of those
interests. Prominent among its enactments are:
•

the USA PATRIOT Act; 34

•

the Intelligence Authorization Act for Fiscal Year 2002;35

•

the 21st Century Department of Justice Appropriations Authorization Act;36

•

the Department of Homeland Security Act;37

•

the USA PATRIOT Improvement and Reauthorization Act;38 and

•

the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008
(2008 FISA Amendments Act).39

Title III: Prohibitions
In Title III, ECPA begins the proposition that unless provided otherwise, it is a federal crime to
engage in wiretapping or electronic eavesdropping; to possess wiretapping or electronic
27

Id. at 44-45.
442 U.S. 735, 741-46 (1979).
29
Id. In United States v. New York Telephone Co., the Court held that the Title III did not apply to the use of pen
registers and that federal courts had the power to authorize their installation for law enforcement purposes, 434 U.S.
157, 168 (1977).
30
100 Stat. 1848 (1986).
31
18 U.S.C. 2510-2522.
32
18 U.S.C. 2701-2712.
33
18 U.S.C. 3121-3126.
34
P.L. 107-56, 115 Stat. 272 (2001).
35
P.L. 107-108, 115 Stat. 1394 (2001).
36
P.L. 107-273, 116 Stat. 1758 (2002).
37
P.L. 107-296, 116 Stat. 2135 (2002).
38
P.L. 109-177, 120 Stat. 192 (2006).
39
P.L. 110-261, 122 Stat. 2436 (2008).
28

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eavesdropping equipment; to use or disclosure of information obtained through illegal
wiretapping or electronic eavesdropping; or to disclosure of information secured through courtordered wiretapping or electronic eavesdropping, in order to obstruct justice.40

Illegal Wiretapping and Electronic Eavesdropping
First among these is the ban on illegal wiretapping and electronic eavesdropping that covers:
•

any person who

•

intentionally

•

intercepts, or endeavors to intercept,

•

wire, oral or electronic communications

•

by using an electronic, mechanical or other device

•

unless the conduct is specifically authorized or expressly not covered, e.g.
•

one of the parties to the conversation has consent to the interception

•

the interception occurs in compliance with a statutorily authorized, (and
ordinarily judicially supervised) law enforcement or foreign intelligence
gathering interception,

•

the interception occurs as part of providing or regulating communication
services,

•

certain radio broadcasts, and

•

in some places, spousal wiretappers.41

Person
The prohibition applies to “any employee, or agent of the United States or any State or political
subdivision thereof, and any individual, partnership, association, joint stock company, trust, or
corporation.”42

Intentional
Conduct can only violate Title III if it is done “intentionally,” inadvertent conduct is no crime; the
offender must have done on purpose those things which are outlawed.43 He need not be shown to
have known, however, that his conduct was unlawful.44
40

18 U.S.C. 2511. Elsewhere, federal law proscribes: unlawful access to stored communications, 18 U.S.C. 2701;
unlawful use of a pen register or a trap and trace device, 18 U.S.C. 3121; and abuse of eavesdropping and search
authority or unlawful disclosures under the Foreign Intelligence Surveillance Act, 50 U.S.C. 1809, 1827.
41
18 U.S.C. 2511(1).
42
18 U.S.C. 2510(6). Although the governmental entities are not subject to criminal liability, as noted infra, some
courts believe them subject to civil liability under 18 U.S.C. 2520; Smoot v. United Transportation Union, 246 F.3d
633, 640-41 (6th Cir. 2001).
43
“In order to underscore that the inadvertent reception of a protected communication is not a crime, the subcommittee
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Jurisdiction
Subsection 2511(1) contains two interception bars—one, 2511(1)(a), simply outlaws intentional
interception; the other, 2511(1)(b), outlaws intentional interception when committed under any of
five jurisdictional circumstances with either an implicit or explicit nexus to interstate or foreign
commerce.45 Congress adopted the approach because of concern that its constitutional authority
might not be sufficient to ban instances of electronic surveillance that bore no discernable
connection to interstate commerce or any other of Congress’s enumerated constitutional powers.
So it enacted a general prohibition, and as a safety precaution, a second provision more tightly
tethered to specific jurisdictional factors.46 The Justice Department has honored that caution by
employing subparagraph (b) to prosecute the interception of oral communications, while using
subparagraph (a) to prosecute other forms of electronic eavesdropping.47

(...continued)
changed the state of mind requirement under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 from
‘willful’ to ‘intentional,’” S.Rept. 99-541, at 23 (1986); “This provision makes clear that the inadvertent interception of
a protected communication is not unlawful under this Act,” H.Rept. 99-647, at 48-9 (1986). See, e.g., In re Pharmatrak,
Inc., 329 F.3d 9, 23 (1st Cir. 2003); Sanders v. Robert Bosch Corp., 38 F.3d 736, 742-43 (4th Cir. 1994); Lonegan v.
Hasty, 436 F.Supp.2d 419, 429 (E.D.N.Y. 2006); Lewton v. Divingnzzo, 772 F.Supp.2d 1046, 1059 (D.Nev. 2011).
“But the plaintiffs need not produce direct evidence of the intentional interception; for often the only way to prove that
a stealthy interception occurred is through circumstantial evidence,” McCann v. Iroquois Memorial Hospital, 622 F.3d
745, 752 (7th Cir. 2010), citing, DirectTV v. Webb, 545 F.3d 837, 844 (9th Cir. 2008).
44
Narducci v. Village of Bellwood, 444 F.Supp. 924, 935 (N.D. Ill. 2006).
45
“(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,” 18 U.S.C. 2511(1)(a),(b).
46
“Subparagraph (a) establishes a blanket prohibition against the interception of wire communication. Since the
facilities used to transmit wire communications form part of the interstate or foreign communications network,
Congress has plenary power under the commerce clause to prohibit all interception of such communications whether by
wiretapping or otherwise.
“The broad prohibition of subparagraph (a) is also applicable to the interception of oral communications. The
interception of such communications, however, does not necessarily interfere with the interstate or foreign commerce
network, and the extent of the constitutional power of Congress to prohibit such interception is less clear than in the
case of interception of wire communications. . . .
“Therefore, in addition to the broad prohibitions of subparagraph (a), the committee has included subparagraph (b),
which relies on accepted jurisdictional bases under the commerce clause, and other provisions of the Constitution to
prohibit the interception of oral communications,” S.Rept. 90-1097, at 91-2 (1968).
47
DEPARTMENT OF JUSTICE CRIMINAL RESOURCE MANUAL §9-60.200 at 1050, available at http://www.justice.gov/usao/
eousa/foia_reading_room/usam/title9/60mcrm.htm#9-60.400. As will be noted in a moment, the statutory definitions of
wire and electronic communications contain specific commerce clause elements, but the definition of oral
communications does not. Subsequent Supreme Court jurisprudence relating to the breadth of Congress’s commerce
clause powers indicates that the precautions may have been well advised, United States v. Lopez, 514 U.S. 549 (1995)
and United States v. Morrison, 529 U.S. 598 (2000).

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Interception
Interception “means the aural or other acquisition of the contents” of various kinds of
communications by means of “electronic, mechanical or other devices.”48 Although logic might
suggest that interception occurs only in the place where the communication is captured, the cases
indicate that interception occurs as well where the communication begins, is transmitted, or is
received.49 Yet, it does not include instances when an individual simply reads or listens to a
previously intercepted communication, regardless of whether additional conduct may implicate
the prohibitions on use or disclosure.50
Once limited to aural acquisitions, ECPA enlarged the definition of “interception” by adding the
words “or other acquisition” so that it is no longer limited to interceptions of communications that
can be heard.51 The change complicates the question of whether the wiretap, stored
communications, or trap and trace portions of the ECPA govern the legality of various means of
capturing information relating to a communication. The analysis might seem to favor wiretap
coverage when it begins with an examination of whether an “interception” has occurred. Yet,
there is little consensus over when an interception occurs; that is, whether “interception” as used
in section 2511 contemplates surreptitious acquisition, either contemporaneous with transmission,
or whether such acquisition may occur anytime before the initial cognitive receipt of the contents
by the intended recipient, or under some other conditions.52
48
18 U.S.C. 2510(4). The dictionary definition of “aural” is “of or relating to the ear or to the sense of hearing,”
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 76 (10th ed. 1996).
49
United States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006)(“an interception occurs where the tapped phone is
located and where the law enforcement officers first overheard the call ... United States v. Rodriguez, 968 F.2d 130, 136
(2d Cir. 1992); accord, United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997)(concluding that an interception
occurs in the jurisdiction where the tapped phone is located, where the second phone in the conversation is located, and
where the scanner used to overhear the call is located); United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996)”).
50
Noel v. Hall, 568 F.3d 743, 749 (9th Cir. 2009)(“In reaching this conclusion, we join a number of other circuits that
have held that replaying of tapes containing recorded phone conversations does not amount to a new interception in
violation of the Wiretap Act”), citing inter alia, United States v. Hammond, 286 F.3d 189, 193 (4th Cir. 2002); Reynolds
v. Spears, 93 F.3d 428, 432-33 (8th Cir. 1996); United States v. Shields, 675 F.2d 1152, 1156 (11th Cir. 1982).
51
S.Rept. 99-541, at 13 (1986)(the “amendment clarifies that it is illegal to intercept the non-voice portion of a wire
communication. For example, it is illegal to intercept the data or digitized portion of a voice communication”); see
also, H.Rept. 99-647, at 34 (1986).
52
See, United States v. Szymuszkiewicz, 622 F.3d 701, 705-706 (7th Cir. 2010)(an employee’s surreptitiously
programming his supervisor’s computer, so that the server forwards duplicates to the employee of all emails sent to the
supervisor, constitutes an interception in violation of Title III); United States v. Councilman, 418 F.3d 67, 79-80(1st Cir.
2005)(en banc)(service provider’s access to email “during transient storage” constitutes “interception”; without
deciding whether “interception is limited to acquisition contemporaneous with transmission”); Konop v. Hawaiian
Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002)(fraudulent access to stored communication does not constitute an
“interception”; interception requires access contemporaneous with transmission); United States v. Smith, 155 F.3d
1051, 1058 (9th Cir. 1998)(unauthorized retrieval and recording of another’s voice mail messages constitutes an
“interception”); United States v. Jones, 451 F.Supp.2d 71, 75 (D.D.C. 2006)(government’s acquisition from the phone
company of text messages was no interception because there was no contemporaneous access); Fraser v. National
Mutual Insurance Co., 135 F.Supp.2d 623, 634-37 (E.D.Pa. 2001)(“interception” of email occurs with its unauthorized
acquisition prior to initial receipt by its addressee); Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d
457, 461-62 n.7 (5th Cir. 1994)(Congress did not intend for “interception” to apply to email stored on an electronic
bulletin board; stored wire communications (voice mail), however, is protected from “interception”); United States v.
Meriwether, 917 F.2d 955, 959-60 (6th Cir. 1990)(access to stored information through the use of another’s pager does
not constitute an “interception”); United States v. Reyes, 922 F.Supp. 818, 836-37 (S.D.N.Y. 1996)(same); Wesley
College v. Pitts, 947 F.Supp. 375, 385 (D.Del. 1997)(no “interception” occurs when the contents of electronic
communications are acquired unless contemporaneous with their transmission); Cardinal Health 414, Inc. v. Adams,
582 F.Supp.2d 967, 979-81 (M.D. Tenn. 2008)(same); see also, Adams v. Battle Creek, 250 F.3d 980, 982 (6th Cir.
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The USA PATRIOT Act resolved some of the statutory uncertainty concerning voice mail when it
removed voice mail from the wiretap coverage of Title III (striking the phrase “and such term
includes any electronic storage of such communication” from the definition of “wire
communications” in Title III (18 U.S.C. 2510(1)) and added stored wire communications to the
stored communications coverage of 18 U.S.C. 2703.53

Content
The interceptions proscribed in Title III are confined to those that capture a communication’s
“content,” that is, “information concerning [its] substance, purport, or meaning.” 54 Trap and trace
devices and pen registers once captured only information relating to the source and addressee of a
communication, not its content. That is no longer the case. The “post-cut-through dialed digit
features” of contemporary telephone communications now transmit communications in such a
manner that the use of ordinary pen register or trap and trace devices will capture both noncontent and content.55 As a consequence, a few courts have held, either as a matter of statutory
construction or constitutional necessity, that the authorities must rely on a Title III wiretap order
rather than a pen register/trap and trace order if such information will be captured.56

By Electronic, Mechanical, or Other Device
The statute does not cover common law “eavesdropping,” but only interceptions “by electronic,
mechanical or other device.”57 The term includes computers,58 but it is defined so as not to
(...continued)
2001)(use of a “clone” or duplicate pager to simultaneously receive the same message as a target pager is an
“interception”); Brown v. Waddell, 50 F.3d 285, 294 (4th Cir. 1995)(same).
53
115 Stat. 283 (2001). Such recourse to the procedures of the Stored Communications Act must still comply with the
demands of the Fourth Amendment, see, United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)(“Accordingly, we
hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent
or received through, a commercial ISP. The government may not compel a commercial ISP to turn over the contents of
a subscriber’s emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain
a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s
emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the
SCA is unconstitutional”).
54

18 U.S.C. 2510(8). In re iPhone Application Litigation, 844 F.Supp.2d 1040, 1061 (2012)(“In United States v. Reed,
575 F.3d 900 (9th Cir. 2009), the Ninth Circuit held that data automatically generated about a telephone call, such as the
call’s time of origination and its duration, do not constitute ‘content’ for purposes of the Wiretap Act’s sealing
provisions because such data ‘contains no “information concerning the substance, purport, or meaning of [the]
communication.”’ Id. at 916 (quoting 18 U.S.C. 2510[(8)]). Rather, ‘content’ is limited to information the user intended
to communicate, such as the words spoken in a phone call. Id. Here, the allegedly intercepted electronic
communications are simply users’ geolocation data. This data is generated automatically, rather than through the intent
of the user, and therefore does not constitute ‘content’ susceptible to interception”).
55
“‘Post-cut-through dialed digits’ are any numbers dialed from a telephone after the call is initially setup or ‘cutthrough.’ Sometimes these digits are other telephone numbers, as when a party places a credit card call by first dialing
the long distance carrier access number and then the phone number of the intended party. Sometimes these digits
transmit real information, such as bank account numbers, Social Security numbers, prescription numbers, and the like.
In the latter case, the digits represent communications content; in the former, they are non-content call processing
numbers,” In re United States, 441 F.Supp.2d 816, 818 (S.D. Tex. 2006).
56
In re United States for Orders (1) Authorizing Use of Pen Registers and Trap and Trace Devices, 515 F.Supp.2d 325,
328-38 (E.D.N.Y. 2007); In re United States, 441 F.Supp.2d 816, 818-27 (S.D. Tex. 2006).
57
18 U.S.C. 2510(4). United States v. Jones, 451 F.Supp.2d 71, 75 (D.D.C. 2006)(government’s acquisition from the
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include hearing aids or extension telephones in normal use (use in the “ordinary course of
business”).59 Whether an extension phone has been installed and is being used in the ordinary
course of business or in the ordinary course of law enforcement duties, so that it no longer
constitutes an interception device for purposes of Title III and comparable state laws has proven a
somewhat vexing question.60
Although often intertwined with the consent exception discussed below, the question generally
turns on the facts in a given case.61 When the exemption is claimed as a practice in the ordinary
course of business, the interception must be for a legitimate business reason, it must be routinely
conducted, and at least in some circuits employees must be notified that their conversations are
being monitored.62 Similarly, “Congress most likely carved out an exception for law enforcement
officials to make clear that the routine and almost universal recording of phone lines by police
departments and prisons, as well as other law enforcement institutions, is exempt from the
statute.”63 The exception contemplates administrative rather than investigative monitoring,64
which must nevertheless be justified by a lawful, valid law enforcement concern.65
(...continued)
phone company of text messages was not an interception because it did not involve contemporaneous access and
because no electronic, mechanical, or other devices were used).
58
United States v. Szymuszkiewicz, 622 F.3d 701, 707 (7th Cir. 2010)(“Thus Szymuszkiewicz acquired the emails by
using at least three devices: Infusino’s computer (where the rule [directing surreptitious duplication of incoming
emails] was set up), the Kansas City server (where the rule caused each message to be duplicated and sent his way),
and his own computer (where the messages were received, read, and sometimes stored”).
59
“‘[E]lectronic, mechanical, or other device’ means any device or apparatus which can be used to intercept a wire,
oral, or electronic communication other than—(a) any telephone or telegraph instrument, equipment or facility, or any
component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in
the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or
furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of
its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its
business, or by an investigative or law enforcement officer in the ordinary course of his duties; (b) a hearing aid or
similar device being used to correct subnormal hearing to not better than normal,” 18 U.S.C. 2510(5).
60
See the cases cited and commentary in Barnett & Makar, “In the Ordinary Course of Business”: The Legal Limits of
Workplace Wiretapping, 10 HASTINGS JOURNAL OF COMMUNICATIONS AND ENTERTAINMENT LAW 715 (1988);
Application to Extension Telephones of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.
§§2510 et seq.), Pertaining to Interceptions of Wire Communications, 58 ALR Fed. 594; Eavesdropping on Extension
Telephone as Invasion of Privacy, 49 ALR 4th 430.
61
E.g., Deal v. Spears, 780 F.Supp. 618, 623 (W.D.Ark. 1991), aff’d, 980 F.2d 1153 (8th Cir. 1992)(employer regularly
taped employee calls by means of a device attached to an extension phone; most of the calls were personal and
recording and disclosing them served no business purpose).
62
Adams v. Battle Creek, 250 F.3d 980, 983 (6th Cir. 2001); Arias v. Mutual Central Alarm Service, 202 F.3d 553, 558
(2d Cir. 2000); Berry v. Funk, 146 F.3d 1003, 1008 (D.C.Cir. 1998); Sanders v. Robert Bosch Corp., 38 F.3d 736, 741
(4th Cir. 1994). See also, Hall v. Earthlink Network Inc., 396 F.3d 500, 503-04 (2d Cir. 2005) (Internet service
provider’s receipt and storage of former customer’s email after termination of the customer’s account was done in
ordinary course of business and consequently did not constitute an interception).
Some courts include surreptitious, extension phone interceptions conducted within the family home as part of the
“business extension” exception, Anonymous v. Anonymous, 558 F.2d 677, 678-79 (2d Cir. 1977); Scheib v. Grant, 22
F.3d 149, 154 (7th Cir. 1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991); contra, United States v.
Murdock, 63 F.3d 1391, 1400 (6th Cir. 1995).
63
Adams v. Battle Creek, 250 F.3d at 984; see also, United States v. Lewis, 406 F.3d 11, 18 (1st Cir. 2005); United
States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002); Smith v. U.S.Dept. of Justice, 251 F.3d 1047, 1049-50 (D.C.Cir.
2001); United States v. Poyck, 77 F.3d 285, 292 (9th Cir. 1996); United States v. Daniels, 902 F.2d 1238, 1245 (7th Cir.
1990); United States v. Paul, 614 F.2d 115, 117 (6th Cir. 1980).
64
Amati v. Woodstock, 176 F.3d 952, 955 (7th Cir. 1999)(“Investigation is within the ordinary course of law
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Wire, Oral, or Electronic Communications
An interception is only a violation of Title III if the conversation or other form of captured
communication is among those kinds which the statute protects, in oversimplified terms—if it is a
telephone (wire), face to face (oral), or computer (electronic) communication. Thus, Title III does
cover silent video surveillance.66
Title III does not cover all wire, oral or electronic communications. “Oral communications,” by
definition, includes only those face to face conversations for which the speakers have a justifiable
expectation of privacy.67 “Wire communications” are limited to those that are at some point
involve voice communications (i.e., only aural transfers).68 The term “electronic
communications” encompasses radio and data transmissions generally, but excludes certain radio
transmissions which can be innocently captured without great difficulty.69 Even when a radio
transmission meets the definition, Title III’s general exemption may render its capture innocent.70
(...continued)
enforcement, so if ‘ordinary’ were read literally warrants would rarely if ever be required for electronic eavesdropping,
which was surely not Congress’s intent. Since the purpose of the statute was primarily to regulate the use of
wiretapping and other electronic surveillance for investigatory purposes, ‛ordinary’ should not be read so broadly; it is
more reasonably interpreted to refer to routine noninvestigative recording of telephone conversations”); accord, United
States v. Lewis, 416 F.3d at 11; Colandrea v. Orangetown, 411 F.Supp.2d 342, 347-48 (S.D.N.Y. 2007).
65
The exception, however, does not permit a county to record all calls in and out of the offices of county judges merely
because a detention center and the judges share a common facility, Abraham v. Greenville, 237 F.3d 386, 390 (4th Cir.
2001), nor does it permit jailhouse telephone monitoring of an inmate’s confession to a clergyman, Mockaitis v.
Harcleroad, 104 F.3d 1522, 1530 (9th Cir. 1997). The courts are divided over whether private corrections officials are
covered by the law enforcement exception. Compare, United States v. Faulkner, 323 F. Supp.2d 1111, 1113-17 (D.
Kan. 2004), aff’d on other grounds, 439 F.3d 1221 (10th Cir. 2006) (not covered) with, United States v. Rivera, 292 F.
Supp.2d 838, 842-43 (E.D.Va. 2003) (covered).
66
United States v. Larios, 593 F.3d 82, 90-91 (1st Cir. 2010); United States v. Falls, 34 F.3d 674, 679-80 (8th Cir.
1994); United States v. Koyomejian, 970 F.2d 536, 538 (9th Cir. 1992); United States v. Biasucci, 786 F.2d 505, 508509 (2d Cir. 1986); United States v. Torres, 751 F.2d 875, 880-81 (7th Cir. 1984).
67
“‘[O]ral communication’ means any oral communication uttered by a person exhibiting an expectation that such
communication is not subject to interception under circumstances justifying such expectation, but such term does not
include any electronic communication,” 18 U.S.C. 2510(2). United States v. Larios, 593 F.3d 82, 92 (1st Cir.
2010)(emphasis in the original but most internal quotation marks and citations omitted)(The “legislative history of this
statutory provision shows that Congress intended this definition to parallel the ‘reasonable expectation of privacy test’
articulated by the Supreme Court in Katz. Thus, for Title III to apply, the court must conclude: (1) the defendant had an
actual, subjective expectation of privacy—i.e., that his communications were not subject to interception; and (2) the
defendant’s expectation is one society would objectively consider reasonable.... We conclude that the most reasonable
reading of the statute is that the meaning of ‘oral communication’ was intended to parallel evolving Fourth Amendment
jurisprudence on reasonable expectations of privacy in one’s communications”); Pattee v. Georgia Ports Authority, 512
F.Supp.2d 1372, 1376-377 (S.D.Ga. 2007).
68
“‘[W]ire communication’ means any aural transfer made in whole or in part through the use of facilities for the
transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the
point of reception (including the use of such connection in a switching station) furnished or operated by any person
engaged in providing or operating such facilities for the transmission of interstate or foreign communications or
communications affecting interstate or foreign commerce,” 18 U.S.C. 2510(1).
69
“‘[E]lectronic communication’ means any transfer of signs, signals, writing, images, sounds, data, or intelligence of
any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that
affects interstate or foreign commerce, but does not include—(A) the radio portion of a cordless telephone
communication that is transmitted between the cordless handset and the base unit; (B) any wire or oral communication;
(C) any communication made through a tone-only paging device; or (D) any communication from a tracking device (as
defined in section 3117 of this title),” 18 U.S.C. 2510(12).
70
18 U.S.C. 2511(2)(g).

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Endeavoring to Intercept
Although the statute condemns attempted wiretapping and electronic eavesdropping
(“endeavoring to intercept”),71 the provisions appear to have escaped use, interest, or comment
heretofore, perhaps because the conduct most likely to constitute preparation for an
interception—possession of wiretapping equipment—is already a separate crime.72

Exemptions: Consent Interceptions
Consent interceptions are common, controversial and have a history all their own. The early bans
on divulging telegraph or telephone messages had a consent exception.73 The Supreme Court
upheld consent interceptions against Fourth Amendment challenge both before and after the
enactment of Title III.74 The argument in favor of consent interceptions has always been
essentially that a speaker risks the indiscretion of his listeners and holds no superior legal position
simply because a listener elects to record or transmit his statements rather than subsequently
memorializing or repeating them.75 Wiretapping or electronic eavesdropping by either the police
or anyone else with the consent of at least one party to the conversation is not unlawful under the
federal statute.76 These provisions do no more than shield consent interceptions from the
sanctions of federal law; they afford no protection from the sanctions of state law. Many of the

71

18 U.S.C. 2511(1).
18 U.S.C. 2512, discussed, infra.
73
E.g., 47 U.S.C. 605 (1940 ed.).
74
On Lee v. United States, 343 U.S. 747 (1952); Lopez v. United States, 373 U.S. 427 (1963); United States v. White,
401 U.S. 745 (1971).
75
United States v. White, 401 U.S. at 751 (1971)(“Concededly a police agent who conceals his police connections may
write down for official use his conversations with a defendant and testify concerning them, without a warrant
authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights....
For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing
his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is
carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the
conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency.
On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do
not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of
the same conversations made by the agent or by others from transmissions received from the agent to whom the
defendant is talking and whose trustworthiness the defendant necessarily risks”); Lopez v. United States 373 U.S. 427,
439 (1963)(“Stripped to its essentials, petitioner’s argument amounts to saying that he has a constitutional right to rely
on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating
evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a
conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to
Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or
mechanical recording”).
76
“(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,”
18 U.S.C. 2511(2)(c), (d).
72

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states recognize comparable exceptions, but some only permit interception with the consent of all
parties to a communication.77
Under federal law, consent may be either explicitly or implicitly given. For instance, someone,
who uses a telephone other than his or her own and has been told by the subscriber that
conversations over the instrument are recorded, has been held to have implicitly consented to
interception when using the instrument.78 This is not to say that subscriber consent alone is
sufficient, for it is the parties to the conversation whose privacy is protected.79 Although consent
may be given in the hopes of leniency from law enforcement officials or as an election between
unpalatable alternatives, it must be freely given and not secured coercively.80
Private consent interceptions may not be conducted for a criminal or tortious purpose.81 Some
state wiretap laws do not recognize a one party consent exception. There, interception with the
consent of but one party to the conversation is a violation of state law. But the federal exception is
available as long as the purpose of the interception was neither criminal nor tortious—though the
means may have been.82 At one time, the limitation encompassed interceptions for criminal,
tortious, or otherwise injurious purposes, but ECPA dropped the reference to injurious purposes
for fear that First Amendment values might be threatened should the clause be read to outlaw
consent interceptions conducted to embarrass.83

Exemptions: Publicly Accessible Radio Communications
Radio communications which can be inadvertently heard or are intended to be heard by the public
are likewise exempt. These include not only commercial broadcasts, but ship and aircraft distress
signals, tone-only pagers, marine radio and citizen band radio transmissions, and interceptions
necessary to identify the source of any transmission, radio or otherwise, disrupting
communications satellite broadcasts.84

77

For citations to state law, see, Appendix B.
United States v. Verdin-Garcia, 516 F.3d 884, 894-95 (10th Cir. 2008) (inmate use of prison phone); United States v.
Friedman, 300 F.3d 111, 122-23 (2d Cir. 2002)(same); United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002)
(same); United States v. Footman, 215 F.3d 145, 154-55 (1st Cir. 2000) (same); Griggs-Ryan v. Smith, 904 F.2d 112,
116-17 (1st Cir. 1990) (use of landlady’s phone); United States v. Rivera, 292 F. Supp.2d 838, 843-45 (E.D.Va. 2003)
(inmate use of prison phone monitored by private contractors); see also, United States v. Conley, 531 F.3d 56, 58-9 (1st
Cir. 2008)(explicit consent as a condition for phone privileges).
79
Anthony v. United States, 667 F.2d 870, 876 (10th Cir. 1981).
80
United States v. Antoon, 933 F.2d 200, 203-204 (3d Cir. 1991). But see, O’Ferrell v. United States, 968 F.Supp.
1519, 1541 (M.D.Ala. 1997) (an individual who spoke to his wife on the telephone after being told by FBI agents who
were then executing a search warrant at his place of business that he could only speak to her with the agents listening in
consented to the interception, even if FBI’s initial search was unconstitutional).
81
18 U.S.C. 2511(2)(d); United States v. Lam, 271 F.Supp.2d 1182, 1183-184 (N.D.Cal. 2003).
82
Caro v. Weintraub, 618 F.3d 94, 100 (2d Cir. 2010)(“We join the courts that have considered this question, and hold
that a cause of action under §2511(2)(d) requires that the interceptor intend to commit a crime or tort independent of
the act of recording itself”), citing, Desnick v. American Broadcasting Co., 44 F.3d 1345, 1347-48 (7th Cir. 1995);
Sussman v. American Broadcasting Co, 186 F.3d 1200, 1201 (9th Cir. 1999).
83
S.Rept. 99-541, at 17-8 (1986); H.Rept. 99-647, at 39-40 (1986).
84
“(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—(I) by any station for the use of the general public, or
(continued...)
78

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Exemptions: Government Officials
Government officials have the benefit an exemption when executing a Title III eavesdropping
order;85 acting in an emergency situation pending issuance of a court order;86 acting under the
authority of Title III in the case of communications of an intruder in a communications system
acting with the approval of the system provider;87 acting under the authority of the Foreign
Intelligence Surveillance Act,88 or acting pursuant to the authority according them the use of pen
registers and trap and trace devices.89
(...continued)
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,” 18 U.S.C. 2511(2)(g).
85
“Except as otherwise specifically provided in this chapter any person who (a) intentionally intercepts.... ” 18 U.S.C.
2511(1)(emphasis added).
86
“Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially
designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal
prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably
determines that—(a) an emergency situation exists that involves—(i) immediate danger of death or serious physical
injury to any person, (ii) conspiratorial activities threatening the national security interest, or (iii) conspiratorial
activities characteristic of organized crime, [—] that requires a wire, oral, or electronic communication to be
intercepted before an order authorizing such interception can, with due diligence, be obtained, and (b) there are grounds
upon which an order could be entered under this chapter to authorize such interception, may intercept such wire, oral,
or electronic communication if an application for an order approving the interception is made in accordance with this
section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order, such
interception shall immediately terminate when the communication sought is obtained or when the application for the
order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the
interception is terminated without an order having been issued, the contents of any wire, oral, or electronic
communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall
be served as provided for in subsection (d) of this section on the person named in the application,” 18 U.S.C. 2518(7).
87
“(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; (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,” 18 U.S.C. 2511(2)(i).
88
“(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,” 18 U.S.C. 2511(2)(e).
89
“(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 purpose of chapter 206).... ” 18 U.S.C. 2511(2)(h). Neither the stored communications sections in
chapter 121 nor the pen register and trap and trace device in chapter 206 authorize the contemporaneous interception of
the contents of a communication. For the citations to state statutes permitting judicial authorization of law enforcement
interception of wire, oral or electronic communications, for access to stored electronic communications, and for the use
(continued...)

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Exemptions: Communication Service Providers
A further exemption applies to those who supply communications services: the telephone
company, switchboard operators, and the like. The exemption permits interception in the name of
improved service; to allow a service provider to itself against fraud;90 to assist federal and state
officials operating under a judicially supervised interception order,91 and for the regulatory
activities of the Federal Communications Commission.92

Domestic Exemptions
A few courts recognize a “vicarious consent” exception under which a custodial parent may
secretly record the conversations of his or her minor child in the interest of protecting the child.93
(...continued)
of pen registers and trap and trace devices, see, Appendix D.
90
“(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 . . .
* * *
“(h) It shall not be unlawful under this chapter . . .
“(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,” 18 U.S.C. 2511(2)(a)(I), (h).
91
“(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, 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,” 18 U.S.C. 2511(2)(a)(ii).
92
“(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,” 18
U.S.C. 2511(2)(b).
93
Pollock v. Pollock, 154 F.3d 601, 611 (8th Cir. 1998); Wagner v. Wagner, 64 F.Supp.2d 895, 889-901 (D.Minn.
(continued...)

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Although rejected by most,94 a handful of federal courts have held that Title III does not preclude
one spouse from wiretapping or electronically eavesdropping upon the other,95 a result other
courts have sometimes reached through the telephone extension exception discussed above.96

Illegal Disclosure of Information Obtained by Wiretapping or
Electronic Eavesdropping
Title III has three disclosure offenses. The first is a general prohibition focused on the products of
an unlawful interception:
•

any person [who]

•

intentionally

•

discloses or endeavors to disclose to another person

•

the contents of any wire, oral, or electronic communication

•

having reason to know

•

that the information was obtained through the interception of a wire, oral, or
electronic communication

•

in violation of 18 U.S.C. 2511(1)

•

is subject to the same sanctions and remedies as the wiretapper or electronic
eavesdropper.97

This is true of the wiretapper or electronic eavesdropper and of all those who, aware of the
information’s illicit origins, disclose it. The defendant must be shown to have known that the
interception occurred and that the interception was unlawful.98 There are exceptions. When the
illegally secured information relates to a matter of usual public concern, the First Amendment
precludes a prosecution for disclosure under §2511(c).99 Moreover, the legislative history
(...continued)
1999); Campbell v. Price, 2 F.Supp.2d 1186, 1191-192 (E.D.Ark. 1998); Thompson v. Dulaney, 838 F.Supp. 1535,
1544-45 (D.Utah 1993); cf., Babb v. Eagleton, 616 F.Supp.2d 1195, 1205-206 (N.D.Okla. 2007).
94
Glazner v. Glazner, 347 F.3d 1212, 1215-16 (11th Cir. 2003); Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir. 1991);
Kempf v. Kempf, 868 F.2d 970, 972 (8th Cir. 1989); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984); United
States v. Jones, 542 F.2d 661, 667 (6th Cir. 1976); Kratz v. Kratz, 477 F.Supp. 463, 467-70 (E.D.Pa. 1979); Heyman v.
Heyman, 548 F.Supp. 1041, 1045-47 (N.D.Ill.1982); Lombardo v. Lombardo, 192 F.Supp.2d 885, 809 (N.D.Ill. 2002).
95
Simpson v. Simpson, 490 F.2d 803, 809 (5th Cir. 1974); Perfit v. Perfit, 693 F.Supp. 851, 854-56 (C.D.Cal. 1988); see
generally, Applicability, in Civil Action, of Provisions of Omnibus Crime Control and Safe Streets Act of 1968
Prohibiting Interception of Communications (18 USCS §2511(1)), to Interception by Spouse, or Spouse’s Agent, of
Conversations of Other Spouse, 139 ALR Fed. 517, and the cases discussed therein.
96
Anonymous v. Anonymous, 558 F.2d 677, 678-79 (2d Cir. 1977); Scheib v. Grant, 22 F.3d 149, 154 (7th Cir. 1994);
Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991); cf., Babb v. Eagleton, 616 F.Supp.2d 1195, 1203-205 (N.D.
Okla. 2007); contra, United States v. Murdock, 63 F.3d 1391, 1400 (6th Cir. 1995).
97
18 U.S.C. 2511(1)(c).
98
McCann v. Iroquois Memorial Hospital, 622 F.3d 745, 753 (7th Cir. 2010), citing, Nix v. O’Malley, 160 F.3d 343,
348 (6th Cir. 1998); Williams v. Poulos, 11 F.3d 271, 284 (1st Cir. 1993); and Thompson v. Dulaney, 970 F.2d 744, 749
(10th Cir. 1992).
99
Bartnicki v. Vopper, 532 U.S. 514, 533-34 (2001). Bartnicki was a union negotiator whose telephone conversations
with the union’s president concerning a negotiation of a teachers’ contract were surreptitiously intercepted and
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indicates that Congress did not intend to punish the disclosure of intercepted information that is
public knowledge. Less clear is whether the limitation is confined to information commonly
known at the time of capture, or more likely, information of which the public was generally aware
at the time of disclosure.100 Finally, the results of electronic eavesdropping authorized under Title
III may be disclosed and used for law enforcement purposes 101 and for testimonial purposes.102
Title III makes it a federal crime to disclose intercepted communications under two other
circumstances. It is a federal crime to disclose, with an intent to obstruct criminal justice, any
information derived from lawful police wiretapping or electronic eavesdropping, i.e.:
•

any person [who]

•

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) (communication service providers, landlords, etc. who
assist police setting up wiretaps or electronic eavesdropping devices)

•

2511(2)(b) (FCC regulatory activity)

•

2511(2)(c) (police one party consent)

•

2511(2)(e) (Foreign Intelligence Surveillance Act)

(...continued)
recorded. During the conversation, the possibility of using violence against school board members was mentioned.
After the teachers’ contract was signed, the unknown wiretapper secretly supplied Yocum, a critic of the union’s
position, with a copy of the tape. Yocum in turn played it for members of the school board and turned it over to
Vopper, a radio talk show host, who played it on his show. Other stations and media outlets published the contents as
well. Bartnicki sued Vopper and Yocum for use and disclosure in violation of sections 2511(1)(c) and 2511(1)(d).
Vopper and Yocum offered a free speech defense, which the Supreme Court accepted. But see, Quigley v. Rosenthal,
327 F.3d 1044, 1067-68 (10th Cir. 2003) (denying First Amendment protection for those knowingly involved with
interceptors of private matters (not public concerns)); Boehner v. McDermott, 484 F.3d 573, 577-81 (D.C.Cir.
2007)(Members of Congress do not have a First Amendment right to disclose unlawful wiretap information in violation
of House rules).
100
“Subparagraphs (c) and (d) prohibit, in turn, the disclosure or use of the contents of any intercepted communication
by any person knowing or having reason to know the information was obtained through an interception in violation of
this subsection. The disclosure of the contents of an intercepted communication that had already become ‘public
information’ or ‘common knowledge’ would not be prohibited. The scope of this knowledge required to violate either
subparagraph reflects existing law (Pereira v. United States, 347 U.S. 1 (1954)),” S.Rept. 90-1097, at 93 (1967).
101
“Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained
knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose
such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the
proper performance of the official duties of the officer making or receiving the disclosure,” 18 U.S.C. 2517(1).
102
“Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or
electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter
may disclose the contents of that communication or such derivative evidence while giving testimony under oath or
affirmation in any proceeding held under the authority of the United States or of any State or political subdivision
thereof,” 18 U.S.C. 2517(3). This does not entitle private litigants to disclosure in the view of at least one court, In re
Motion to Unseal Electronic Surveillance Evidence, 990 F.2d 1015 (8th Cir. 1993).
When court-ordered interception results in evidence of a crime other than the crime with respect to which the order was
issued, the evidence is admissible only upon a judicial finding that it was otherwise secured in compliance with Title
III/ECPA requirements, 18 U.S.C. 2517(5).

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•

2516 (court-ordered, police wiretapping or electronic surveillance)

•

2518 (emergency wiretaps or electronic surveillance)

•

knowing or having reason to know that

•

the information was obtained through the interception of such a communication

•

in connection with a criminal investigation

•

having obtained or received the information in connection with a criminal
investigation

•

with intent to improperly obstruct, impede, or interfere with a duly authorized
criminal investigation

•

is subject to the same sanctions and remedies as one who illegally wiretaps.103

Offenders face the criminal and civil liability as those who wiretap.104
This second disclosure proscription applies to efforts to obstruct justice by revealing information
gleaned from either federal wiretaps. It may also apply to state wiretaps. It covers information
generated from a court-ordered wiretap authorized under Section 2516. Section 2516 authorizes
both federal and state court-ordered wiretaps.105 On the other hand, strictly speaking, Section
2516 permits state wiretapping when “authorized” by state law.106 The courts might conclude that
Congress would have spoken more clearly, if it intended to make it a federal crime to obstruct
state criminal prosecutions by the disclosing of information derived from a state wiretap.
A third disclosure proscription applies only to electronic communications service providers “who
intentionally divulge the contents of the communication while in transmission” to anyone other
than sender and intended recipient.107 The prohibition comes with its own exemptions for
divulgence—when one of the parties to the communications consents, when Title III authorizes
disclosure of a court approved interception, when necessary for transmission of the
communication, or when it involves inadvertent discovery of information relating to the
commission of a crime.108 Although subsection 2511(3) provides no specific sanctions, violators
103
18 U.S.C. 2511(1)(e). When acting with a similar intent, disclosure of the fact of authorized federal wiretap or
foreign intelligence gathering is proscribed elsewhere in title 18: “Whoever, having knowledge that a Federal
investigative or law enforcement officer has been authorized or has applied for authorization under chapter 119 to
intercept a wire, oral, or electronic communication, in order to obstruct, impede, or prevent such interception, gives
notice or attempts to give notice of the possible interception to any person shall be fined under this title or imprisoned
not more than five years, or both,” 18 U.S.C. 2232(d).
“Whoever, having knowledge that a Federal officer has been authorized or has applied for authorization to conduct
electronic surveillance under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801, et seq.), in order to
obstruct, impede, or prevent such activity, gives notice or attempts to give notice of the possible activity to any person
shall be fined under this title or imprisoned not more than five years, or both,” 18 U.S.C. 2232(e).
104
18 U.S.C. 2511(1)(e), (4)(a), 2520(a), (g).
105
18 U.S.C. 2516(2).
106
Id.
107
18 U.S.C. 2511(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”).
108
18 U.S.C. 2511(3)(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
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would presumably be exposed to criminal liability under the general disclosure proscription, 18
U.S.C. 2511(1)(c), and to civil liability under 18 U.S.C. 2520.109

Illegal Use of Information Obtained by Unlawful Wiretapping or
Electronic Eavesdropping
The prohibition on the use of information secured from illegal wiretapping or electronic
eavesdropping mirrors its disclosure counterpart:
•

any person [who]

•

intentionally

•

uses or endeavors to use to another person

•

the contents of any wire, oral, or electronic communication

•

having reason to know

•

that the information was obtained through the interception of a wire, oral, or
electronic communication

•

in violation of 18 U.S.C. 2511(1)

•

is subject to the same sanctions and remedies as the wiretapper or electronic
eavesdropper.110

The available case law under the use prohibition of paragraph 2511(1)(d) is scant, and the section
has rarely been invoked except in conjunction with the disclosure prohibition of paragraph
2511(1)(c).111 The wording of the two is clearly parallel, the legislative history describes them in
the same breath,112 and they are treated alike for law enforcement purposes.113

(...continued)
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”).
109
Note that subsection 2520(d) establishes a good faith defense that specifically references the prohibition: “A good
faith reliance on ... (3) a good faith determination that section 2511(3) ... of this title permitted the conduct complained
of; is a complete defense against any civil or criminal action brought under this chapter.... ”
110
18 U.S.C. 2511(1)(d).
111
See e.g., McCann v. Iroquois Memorial Hospital, 622 F.3d 745, 753-54 (7th Cir. 2010).
112
“Subparagraphs (c) and (d) prohibit, in turn, the disclosure or use of the contents of any intercepted communication
by any person knowing or having reason to know the information was obtained through an interception in violation of
this subsection,” S.Rept. 90-1097, at 93 (1967).
113
Compare, 18 U.S.C. 2517(1)(“Any investigative or law enforcement officer who, by any means authorized by this
chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived
therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such
disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the
disclosure”), with 18 U.S.C. 2517(2)(“Any investigative or law enforcement officer who, by any means authorized by
this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived
therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties”).
On the other hand, the Supreme Court in Bartnicki seemed to parse the constitutionally suspect ban on disclosure from
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A few courts had recognized an exception to the disclosure-use bans of subsection 2511(1) when
law enforcement officials disclose or use the results of an illegal interception in which they had
played no role.114
The criminal and civil liability that attend unlawful use of intercepted communications in
violation of paragraph 2511(1)(d) are the same as for unlawful disclosure in violation of
paragraphs 2511(1)(c) or 2511(1)(e), or for unlawful interception under paragraphs 2511(1)(a) or
2511(1)(b).115

Shipping, Manufacturing, Distributing, Possessing or Advertising
Wire, Oral, or Electronic Communication Interception Devices
The proscriptions for possession and trafficking in wiretapping and eavesdropping devices are
even more demanding than those that apply to the predicate offense itself. There are exemptions
for service providers,116 government officials and those under contract with the government,117
but there is no exemption for equipment designed to be used by private individuals, lawfully but
surreptitiously.118 Nevertheless, inoperable equipment, though designed to intercept, may not be
considered equipment “which can be used to intercept” and consequently may not serve as the
basis for a conviction under §2512.119
Section 2512’s three prohibitions feature several common elements, declaring that:

(...continued)
the constitutionally permissible ban on use. Bartnicki v. Vopper, 532 U.S. 514, 526-27 (2001)(“[T]he naked prohibition
against disclosures is fairly characterized as a regulation of pure speech. Unlike the prohibition against the ‛use’ of the
contents of an illegal interception in §2511(1)(d), subsection (c) is not a regulation of conduct”).
114
Forsyth v. Barr, 19 F.3d 1527, 1541-545 (5th Cir. 1994); United States v. Murdock, 63 F.3d 1391, 1400-403 (6th Cir.
1995); contra, United States v. Crabtree, 565 F.3d 887, 889 (4th Cir. 2009); Berry v. Funk, 146 F.3d 1003, 1011-13
(D.C.Cir. 1998); Chandler v. United States Army, 125 F.3d 1296, 1300-302 (9th Cir. 1997); In re Grand Jury, 111 F.3d
1066, 1077 (3d Cir. 1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987).
115
18 U.S.C. 2511(4), 2520(a), (g).
116
“It shall not be unlawful under this section for—(a) a provider of wire or electronic communication service or an
officer, agent, or employee of, or a person under contract with, such a provider, in the normal course of the business of
providing that wire or electronic communication service ... to send through the mail, send or carry in interstate or
foreign commerce, or manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or
having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious
interception of wire, oral, or electronic communications,” 18 U.S.C. 2512(2)(a).
117
“(2) It shall not be unlawful under this section for ... (b) an officer, agent, or employee of, or a person under contract
with, the United States, a State, or a political subdivision thereof, in the normal course of the activities of the United
States, a State, or a political subdivision thereof, to send through the mail, send or carry in interstate or foreign
commerce, or manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having
reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious
interception of wire, oral, or electronic communications.
“(3) It shall not be unlawful under this section to advertise for sale a device described in subsection (1) of this section if
the advertisement is mailed, sent, or carried in interstate or foreign commerce solely to a domestic provider of wire or
electronic communication service or to an agency of the United States, a State, or a political subdivision thereof which
is duly authorized to use such device,” 18 U.S.C. 2512(2)(b),(3).
118
United States v. Spy Factory, Inc., 951 F.Supp. 450, 473-75 (S.D.N.Y. 1997); United States v. Bast, 495 F.2d 138,
141 (D.C.Cir. 1974).
119
United States v. Simels, 654 F.3d 161, 171 (2d Cir. 2011).

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•

any person who

•

intentionally

•

either
(a)
•

sends through the mail or sends or carries in interstate or foreign
commerce

•

any electronic, mechanical, or other device

•

knowing or having reason to know

•

that the design of such device renders it primarily useful

•

for the purpose of the surreptitious interception of wire, oral, or
electronic communications; or
(b)

•

manufactures, assembles, possesses, or sells

•

any electronic, mechanical, or other device

•

knowing or having reason to know

•

that the design of such device renders it primarily useful

•

for the purpose of the surreptitious interception of wire, oral, or
electronic communications, and

•

that such device or any component thereof has been or will be sent
through the mail or transported in interstate or foreign commerce; or
(c)

•

places in any newspaper, magazine, handbill, or other publication or
disseminates electronically

•

any advertisement of—

•

•

any electronic, mechanical, or other device

•

knowing or having reason to know

•

that the design of such device renders it primarily useful

•

for the purpose of the surreptitious interception of wire, oral, or
electronic communications; or

•

any other electronic, mechanical, or other device

•

where such advertisement promotes the use of such device

•

for the purpose of the surreptitious interception of wire, oral, or
electronic communications

knowing the content of the advertisement and knowing or having reason
to know

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•

that such advertisement will be sent through the mail or transported in
interstate or foreign commerce

shall be imprisoned for not more than five years and/or fined not more than $250,000
(not more than $500,000 for organizations).120
The legislative history lists among the items Congress considered “primarily useful for the
purpose of the surreptitious interception of communications: the martini olive transmitter, the
spike mike, the infinity transmitter, and the microphone disguised as a wristwatch, picture frame,
cuff link, tie clip, fountain pen, stapler, or cigarette pack.”121
Questions once raised over whether §2512 covers equipment designed to permit unauthorized
reception of scrambled satellite television signals have been resolved.122 Each of the circuits to
consider the question has now concluded that §2512 outlaws such devices,123 but simple
possession does not give rise to a private cause of action.124

Title III: Government Access
The prohibitions in each of ECPA’s three parts—chapter 119 (Title III), chapter 121 (Stored
Communications Act), and chapter 206 (pen registers and trap & trace devices)—yield to the
need for government access, usually under judicial supervision.

Law Enforcement Wiretapping and Electronic Eavesdropping
Title III exempts federal and state law enforcement officials from its prohibitions on the
interception of wire, oral, and electronic communications under three circumstances: (1) pursuant
to or in anticipation of a court order,125 (2) with the consent of one of the parties to the
communication;126 and (3) with respect to the communications of an intruder within an electronic
communications system.127
120

18 U.S.C. 2512.
S.Rept. 90-1097, at 95 (1968).
122
The two appellate panel decisions that found the devices beyond the bounds of section 2512, United States v.
Herring, 933 F.2d 932 (11th Cir. 1991) and United States v. Hux, 940 F.2d 314 (8th Cir. 1991) were overturned en banc,
United States v. Herring, 993 F.2d 784, 786 (11th Cir. 1993); United States v. Davis, 978 F.2d 415, 416 (8th Cir. 1992).
123
United States v. Harrell, 983 F.2d 36, 37-39 (5th Cir. 1993); United States v. One Macom Video Cipher II, 985 F.2d
258, 259-61 (6th Cir. 1993); United States v. Shriver, 989 F.2d. 898, 901-06 (7th Cir. 1992); United States v. Davis, 978
F.2d 415, 417-20 (8th Cir. 1992); United States v. Lande, 968 F.2d 907, 910-11 (9th Cir. 1992); United States v. McNutt,
908 F.2d 561, 564-65 (10th Cir. 1990); United States v. Herring, 993 F.2d 784, 786-89 (11th Cir. 1991).
124
DirecTV, Inc. v. Treworgy, 373 F.3d 1124, 1129 (11th Cir. 2004); DirecTV, Inc. v. Robson, 420 F.3d 532, 538-39
th
(5 Cir. 2005)(citing several district court cases that have reached the same conclusion). Proof that the possessor used
the device to intercept satellite transmission evidences a violation of section 2511 and exposure to civil liability under
section 2520, DirecTV, Inc. v. Nicholas, 403 F.3d 223, 227-28 (4th Cir. 2005); DirecTV, Inc. v. Pepe, 431 F.3d 162, 169
(3d Cir. 2005).
125
18 U.S.C. 2516-2518.
126
18 U.S.C. 2511(2)(c).
127
18 U.S.C. 2511(2)(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
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To secure a Title III interception order as part of a federal criminal investigation, a senior Justice
Department official must approve the application for the court order authorizing the interception
of wire or oral communications.128 The procedure is only available where there is probable cause
to believe that the wiretap or electronic eavesdropping will produce evidence of one of a long, but
not exhaustive, list of federal cri

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3A98-326. Public record. Not legal advice.