Privacy: An Overview of the Electronic Communications Privacy Act

Congressional research reportOct 9, 2012

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Privacy: An Overview of the

Electronic Communications Privacy Act

(name redacted)

Senior Specialist in American Public Law

October 9, 2012

Congressional Research Service

7-....

www.crs.gov

R41733

CRS Report for Congress

Prepared for Members and Committees of Congress

Privacy: An Overview of the Electronic Communications Privacy Act

Summary

This report provides an overview of federal law governing wiretapping and electronic

eavesdropping under the Electronic Communications Privacy Act (ECPA). It also appends

citations to state law in the area and the text of ECPA.

It is a federal crime to wiretap or to use a machine to capture the communications of others

without court approval, unless one of the parties has given his prior consent. It is likewise a

federal crime to use or disclose any information acquired by illegal wiretapping or electronic

eavesdropping. Violations can result in imprisonment for not more than five years; fines up to

$250,000 (up to $500,000 for organizations); civil liability for damages, attorneys’ fees and

possibly punitive damages; disciplinary action against any attorneys involved; and suppression of

any derivative evidence. Congress has created separate, but comparable, protective schemes for

electronic communications (e.g., email) and against the surreptitious use of telephone call

monitoring practices such as pen registers and trap and trace devices.

Each of these protective schemes comes with a procedural mechanism to afford limited law

enforcement access to private communications and communications records under conditions

consistent with the dictates of the Fourth Amendment. The government has been given narrowly

confined authority to engage in electronic surveillance, conduct physical searches, and install and

use pen registers and trap and trace devices for law enforcement purposes under ECPA and for

purposes of foreign intelligence gathering under the Foreign Intelligence Surveillance Act.

This report appears as a part of a larger piece, which includes a discussion of the Foreign

Intelligence Surveillance Act and is entitled CRS Report 98-326, Privacy: An Overview of

Federal Statutes Governing Wiretapping and Electronic Eavesdropping, by (name redacted) and

(name redacted). Each of the two is available inan abridged form without footnotes, quotations,

attributions of authority, or appendices, i.e., CRS Report R41734, Privacy: An Abridged

Overview of the Electronic Communications Privacy Act, by (name redacted), and CRS Report 98327, Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic

Eavesdropping, by (name redacted) and (name redacted).

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Privacy: An Overview of the Electronic Communications Privacy Act

Contents

Introduction...................................................................................................................................... 1

Background...................................................................................................................................... 1

Title III: Prohibitions ....................................................................................................................... 7

Illegal Wiretapping and Electronic Eavesdropping ................................................................... 7

Person.................................................................................................................................. 7

Intentional ........................................................................................................................... 8

Jurisdiction .......................................................................................................................... 8

Interception ......................................................................................................................... 9

Content .............................................................................................................................. 10

By Electronic, Mechanical, or Other Device .................................................................... 11

Wire, Oral, or Electronic Communications....................................................................... 12

Endeavoring to Intercept ................................................................................................... 13

Exemptions: Consent Interceptions................................................................................... 13

Exemptions: Publicly Accessible Radio Communications ............................................... 15

Exemptions: Government Officials................................................................................... 15

Exemptions: Communication Service Providers............................................................... 16

Domestic Exemptions ....................................................................................................... 17

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......................................................................................................... 24

Law Enforcement Wiretapping and Electronic Eavesdropping............................................... 24

Title III: Consequences of a Violation ........................................................................................... 29

Criminal Penalties ............................................................................................................. 29

Civil Liability .................................................................................................................... 31

Civil Liability of the United States.................................................................................... 32

Administrative Action ....................................................................................................... 32

Attorney Discipline ........................................................................................................... 32

Exclusion of Evidence....................................................................................................... 34

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 ................................................................................................. 48

PRT&T: Consequences............................................................................................................ 49

Electronic Communications Privacy Act (Text). ........................................................................... 50

Chapter 119 (“Title III”) .......................................................................................................... 50

18 U.S.C. 2510. Definitions. ............................................................................................. 50

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18 U.S.C. 2511. Interception and disclosure of wire, oral, or electronic

communications prohibited............................................................................................ 52

18 U.S.C. 2512. Manufacture, distribution, possession, and advertising of wire,

oral, or electronic communication intercepting devices prohibited. .............................. 55

18 U.S.C. 2513. Confiscation of wire, oral, or electronic communication

interception devices........................................................................................................ 56

18 U.S.C. 2515. Prohibition of use as evidence of intercepted wire or oral

communications. ............................................................................................................ 56

18 U.S.C. 2516. Authorization for interception of wire, oral, or electronic

communications. ............................................................................................................ 56

18 U.S.C. 2517. Authorization for disclosure and use of intercepted wire, oral, or

electronic communications............................................................................................. 59

18 U.S.C. 2518. Procedure for interception of wire, oral, or electronic

communications. ............................................................................................................ 60

18 U.S.C. 2519. Reports concerning intercepted wire, oral, or electronic

communications. ............................................................................................................ 64

18 U.S.C. 2520. Recovery of civil damages authorized.................................................... 65

18 U.S.C. 2521. Injunction against illegal interception. ................................................... 66

18 U.S.C. 2522. Enforcement of the Communications Assistance for Law

Enforcement Act. ........................................................................................................... 66

Chapter 121 (“Stored Communications Act”) ......................................................................... 66

18 U.S.C. 2701. Unlawful access to stored communications............................................ 66

18 U.S.C. 2702. Voluntary disclosure of customer communications or records. .............. 67

18 U.S.C. 2703. Required disclosure of customer communications or records................ 68

18 U.S.C. 2704. Backup preservation. .............................................................................. 70

18 U.S.C. 2705. Delayed notice. ....................................................................................... 71

18 U.S.C. 2706. Cost reimbursement................................................................................ 72

18 U.S.C. 2707. Civil action. ............................................................................................ 72

18 U.S.C. 2708. Exclusivity of remedies. ......................................................................... 73

18 U.S.C. 2709. Counterintelligence access to telephone toll and transactional

records............................................................................................................................ 73

18 U.S.C. 2711. Definitions for chapter. ........................................................................... 75

18 U.S.C. 2712. Civil Action against the United States. ................................................... 75

Chapter 206 (“Pen Register and Trap and Trace Devices”) .................................................... 76

18 U.S.C. 3121. General prohibition on pen register and tape and trace device

use; exception................................................................................................................. 76

18 U.S.C. 3122. Application for an order for a pen register or a trap and trace

device. ............................................................................................................................ 76

18 U.S.C. 3123. Issuance of an order for a pen register or a trap and trace device........... 77

18 U.S.C. 3124. Assistance in installation and use of a pen register or a trap and

trace device. ................................................................................................................... 78

18 U.S.C. 3125. Emergency pen register and trap and trace device installation............... 79

18 U.S.C. 3126. Reports concerning pen registers and trap and trace devices. ................ 79

18 U.S.C. 3127. Definitions for chapter............................................................................ 79

Appendixes

Appendix A. State Statutes Outlawing the Interception of Wire(w), Oral(o) and Electronic

Communications(e) .................................................................................................................... 81

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Appendix B. Consent Interceptions Under State Law ................................................................... 82

Appendix C. Statutory Civil Liability for Interceptions Under State Law .................................... 83

Appendix D. Court Authorized Interception Under State Law...................................................... 84

Appendix E. State Statutes Regulating Stored Electronic Communications (SE), Pen

Registers (PR) and Trap and Trace Devices (T) ......................................................................... 85

Appendix F. State Computer Crime Statutes ................................................................................. 86

Contacts

Author Contact Information........................................................................................................... 86

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Privacy: An Overview of the Electronic Communications Privacy Act

Introduction

This is an outline of the Electronic Communications Privacy Act (ECPA).1 ECPA consists of three

parts. The first, sometimes referred to as Title III, outlaws the unauthorized interception of wire,

oral, or electronic communications.2 It also establishes a judicial supervised procedure to permit

such interceptions for law enforcement purposes.3 The second, the Stored Communications Act,

focuses on the privacy of, and government access to, stored electronic communications.4 The

third creates a procedure for governmental installation and use of pen registers as well as trap and

trace devices.5 It also outlaws such installation or use except for law enforcement and foreign

intelligence investigations.6

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

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). It constitutes

the ECPA portion of a separate report that includes a discussion of the Foreign Intelligence Surveillance Act (FISA),

CRS Report 98-326, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping.

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)), involve surveillance that does not capture conversation (e.g., thermal imaging or

electronic tracking devices), or 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; CRS

Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015; CRS

Report R40980, Government Collection of Private Information: Background and Issues Related to the USA PATRIOT

Act Reauthorization; 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; 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).

18 U.S.C. 2510-2522. This part of ECPA was originally enacted as Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. 2510-2520 (1964 ed,)(Supp. IV).

Id.

18 U.S.C. 27-1-2712.

18 U.S.C. 3121-3127.

18 U.S.C. 3121.

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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.”7 Although early American

law proscribed common law eavesdropping, the crime was little prosecuted and by the late

nineteenth century had “nearly faded from the legal horizon.”8 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.9 Later, it proscribed intercepting and divulging private

radio messages in the Radio Act of 1927,10 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.11

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

curtilage12 for the purposes of making a seizure.”13

4 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 169 (1769).

“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).

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).

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 ... ”).

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.

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).

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

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Chief Justice Taft pointed out that Congress was free to provide protection which the Constitution

did not.14 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.15

The Federal Communications Act outlawed wiretapping, but it said nothing about the use of

machines to surreptitiously record and transmit face to face conversations.16 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.17

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.18 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.19 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.20

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.21

(...continued)

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.

“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.

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).

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.

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.

Goldman v. United States, 316 U.S. 129 (1942).

On Lee v. United States, 343 U.S. 747 (1952).

Silverman v. United States, 365 U.S. 505 (1961).

“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

(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.”22

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.23 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.24

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

(...continued)

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

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).

Wong Sun v. United States, 371 U.S. 471, 485 (1963).

389 U.S. 347 (1967).

“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.

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system under which law enforcement officials could obtain a warrant, or equivalent court order,

authorizing wiretapping or electronic eavesdropping.

The Court rejected the constitutional adequacy of one of the more detailed of these state statutory

schemes in Berger v. New York.25 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.26

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.27

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.28

After the Court held that the President’s inherent powers were insufficient to excuse warrantless

electronic eavesdropping on purely domestic threats to national security,29 Congress considered it

prudent to augment the foreign intelligence gathering authority of the United States with the

Foreign Intelligence Security Act of 1978 (FISA).30 The FISA provides a procedure for judicial

review and authorization of electronic surveillance and other forms of information gathering for

foreign intelligence purposes.

388 U.S. 41 (1967).

388 U.S. at 58-60.

87 Stat. 197, 18 U.S.C. 2510 - 2520 (1970 ed.).

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 ... ”).

United States v. United States District Court, 407 U.S. 297 (1972).

92 Stat. 1783, 50 U.S.C. 1801-1862.

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Two other Supreme Court cases influenced the development of federal law in the area. In United

States v. Miller,31 the Court held that a customer had no Fourth Amendment protected expectation

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.32 In Smith v. Maryland,33 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.34

In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA).35 ECPA consists

of three parts: a revised Title III;36 the Stored Communications Act (SCA);37 and provisions

governing the installation and use of pen registers as well as trap and trace devices.38 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; 39

•

the Intelligence Authorization Act for Fiscal Year 2002;40

•

the 21st Century Department of Justice Appropriations Authorization Act;41

•

the Department of Homeland Security Act;42

•

the USA PATRIOT Improvement and Reauthorization Act;43 and

•

the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008

(2008 FISA Amendments Act).44

425 U.S. 435, 441-43 (1976).

Id. at 44-45.

442 U.S. 735, 741-46 (1979).

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).

100 Stat. 1848 (1986).

18 U.S.C. 2510-2522.

18 U.S.C. 2701-2712.

18 U.S.C. 3121-3126.

P.L. 107-56, 115 Stat. 272 (2001).

P.L. 107-108, 115 Stat. 1394 (2001).

P.L. 107-273, 116 Stat. 1758 (2002).

P.L. 107-296, 116 Stat. 2135 (2002).

P.L. 109-177, 120 Stat. 192 (2006).

P.L. 110-261, 122 Stat. 2436 (2008).

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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

eavesdropping equipment; to use or disclose information obtained through illegal wiretapping or

electronic eavesdropping; or to disclose information secured through court-ordered wiretapping

or electronic eavesdropping, in order to obstruct justice.45

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 consented 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.46

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.”47

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.

18 U.S.C. 2511(1).

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).

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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.48 He need not be shown to

have known, however, that his conduct was unlawful.49

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.50 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.51 The Justice Department has honored that caution by

“In order to underscore that the inadvertent reception of a protected communication is not a crime, the subcommittee

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. 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, DirecTV v. Webb, 545 F.3d 837, 844 (9th Cir. 2008).

Narducci v. Village of Bellwood, 444 F.Supp. 924, 935 (N.D. Ill. 2006).

“(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).

“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).

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employing subparagraph (b) to prosecute the interception of oral communications, while using

subparagraph (a) to prosecute other forms of electronic eavesdropping.52

Interception

Interception “means the aural or other acquisition of the contents” of various kinds of

communications by means of “electronic, mechanical or other devices.”53 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.54 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.55

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.56 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.57

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).

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).

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)”).

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).

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).

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

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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. 2703.58

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.”59 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.60 As a consequence, a few courts have held, either as a matter of statutory

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“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.

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).

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”).

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”).

“‘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).

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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.61

By Electronic, Mechanical, or Other Device

The statute does not cover common law “eavesdropping,” but only interceptions “by electronic,

mechanical or other device.”62 The term includes computers,63 but it is defined so as not to

include hearing aids or extension telephones in normal use (use in the “ordinary course of

business”).64 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.65

Although often intertwined with the consent exception discussed below, the question generally

turns on the facts in a given case.66 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.67 Similarly, “Congress most likely carved out an exception for law enforcement

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).

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

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).

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”).

“‘[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).

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.

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).

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).

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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.”68 The exception contemplates administrative rather than investigative monitoring,69

which must nevertheless be justified by a lawful, valid law enforcement concern.70

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.71

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.72 “Wire communications” are limited to those that are at some point

involve voice communications (i.e., only aural transfers).73 The term “electronic

communications” encompasses radio and data transmissions generally, but excludes certain radio

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).

Amati v. Woodstock, 176 F.3d 952, 955 (7th Cir. 1999)(“Investigation is within the ordinary course of law

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).

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).

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).

“‘[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).

“‘[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).

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transmissions which can be innocently captured without great difficulty.74 Even when a radio

transmission meets the definition, Title III’s general exemption may render its capture innocent.75

Endeavoring to Intercept

Although the statute condemns attempted wiretapping and electronic eavesdropping

(“endeavoring to intercept”),76 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.77

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.78 The Supreme Court

upheld consent interceptions against Fourth Amendment challenge both before and after the

enactment of Title III.79 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.80 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.81 These provisions do no more than shield consent interceptions from the

“‘[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;

defined in section 3117 of this title),” 18 U.S.C. 2510(12).

18 U.S.C. 2511(2)(g).

18 U.S.C. 2511(1).

18 U.S.C. 2512, discussed, infra.

E.g., 47 U.S.C. 605 (1940 ed.).

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).

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”).

“(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or

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sanctions of federal law; they afford no protection from the sanctions of state law. Many of the

states recognize comparable exceptions, but some only permit interception with the consent of all

parties to a communication.82

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.83 This is not to say that subscriber consent alone is

sufficient, for it is the parties to the conversation whose privacy is protected.84 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.85

Private consent interceptions may not be conducted for a criminal or tortious purpose.86 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.87 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.88

(...continued)

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).

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).

Anthony v. United States, 667 F.2d 870, 876 (10th Cir. 1981).

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).

18 U.S.C. 2511(2)(d); United States v. Lam, 271 F.Supp.2d 1182, 1183-184 (N.D.Cal. 2003).

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).

S.Rept. 99-541, at 17-8 (1986); H.Rept. 99-647, at 39-40 (1986).

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Privacy: An Overview of the Electronic Communications Privacy Act

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.89

Exemptions: Government Officials

Government officials have the benefit of an exemption when executing a Title III eavesdropping

order;90 acting in an emergency situation pending issuance of a court order;91 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;92 acting under the authority of the Foreign

“(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

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).

“Except as otherwise specifically provided in this chapter any person who (a) intentionally intercepts.... ” 18 U.S.C.

2511(1)(emphasis added).

“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).

“(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

(continued...)

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Privacy: An Overview of the Electronic Communications Privacy Act

Intelligence Surveillance Act,93 or acting pursuant to the authority according them the use of pen

registers and trap and trace devices.94

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;95 to assist federal and state

officials operating under a judicially supervised interception order,96 and for the regulatory

activities of the Federal Communications Commission.97

(...continued)

other than those transmitted to or from the computer trespasser,” 18 U.S.C. 2511(2)(i).

“(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).

“(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

of pen registers and trap and trace devices, see, Appendix D.

“(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).

“(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,

(continued...)

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Privacy: An Overview of the Electronic Communications Privacy Act

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.98

Although rejected by most,99 a handful of federal courts have held that Title III does not preclude

one spouse from wiretapping or electronically eavesdropping upon the other,100 a result other

courts have sometimes reached through the telephone extension exception discussed above.101

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)

(...continued)

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).

“(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).

Pollock v. Pollock, 154 F.3d 601, 611 (8th Cir. 1998); Wagner v. Wagner, 64 F.Supp.2d 895, 889-901 (D.Minn.

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).

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).

100

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.

101

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).

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•

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

eavesdropper.102

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.103 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).104 Moreover, the legislative history

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.105 Finally, the results of electronic eavesdropping authorized under Title

III may be disclosed and used for law enforcement purposes106 and for testimonial purposes.107

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]

102

18 U.S.C. 2511(1)(c).

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).

104

Bartnicki v. Vopper, 532 U.S. 514, 533-34 (2001). Bartnicki was a union negotiator whose telephone conversations

with the union’s president concerning teachers’ contract negotiations were surreptitiously intercepted and 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, 106768 (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).

105

“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).

106

“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).

107

“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).

103

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•

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)

•

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.108

Offenders face the criminal and civil liability as those who wiretap.109

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 §2516. Section 2516 authorizes both

federal and state court-ordered wiretaps.110 On the other hand, strictly speaking, §2516 permits

state wiretapping when “authorized” by state law.111 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.

108

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).

109

18 U.S.C. 2511(1)(e), (4)(a), 2520(a), (g).

110

18 U.S.C. 2516(2).

111

Id.

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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.112 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.113 Although subsection 2511(3) provides no specific sanctions, violators

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. 2520.114

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.115

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

112

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”).

113

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

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”).

114

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.... ”

115

18 U.S.C. 2511(1)(d).

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2511(1)(c).116 The wording of the two is clearly parallel, the legislative history describes them in

the same breath,117 and they are treated alike for law enforcement purposes.118

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.119

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).120

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,121 government officials and those under contract with the government,122

116

See e.g., McCann v. Iroquois Memorial Hospital, 622 F.3d 745, 753-54 (7th Cir. 2010).

“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).

118

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

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”).

119

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).

120

18 U.S.C. 2511(4), 2520(a), (g).

121

“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).

122

“(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

(continued...)

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but there is no exemption for equipment designed to be used by private individuals, lawfully but

surreptitiously.123 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 §2512.124

Section 2512’s three prohibitions feature several common elements, declaring that:

•

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—

(...continued)

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).

123

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).

124

United States v. Simels, 654 F.3d 161, 171 (2d Cir. 2011).

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•

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

•

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).125

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.”126

Questions once raised over whether §2512 covers equipment designed to permit unauthorized

reception of scrambled satellite television signals have been resolved.127 Each of the circuits to

consider the question has now concluded that §2512 outlaws such devices,128 but simple

possession does not give rise to a private cause of action.129

125

18 U.S.C. 2512.

S.Rept. 90-1097, at 95 (1968).

127

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).

128

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).

129

DirecTV, Inc. v. Treworgy, 373 F.3d 1124, 1129 (11th Cir. 2004); DirecTV, Inc. v. Robson, 420 F.3d 532, 538-39

(5th 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).

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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 and 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,130 (2) with the consent of one of the parties to the

communication;131 and (3) with respect to the communications of an intruder within an electronic

communications system.132

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.133 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 crimes,134 or of the whereabouts of a “fugitive from justice” fleeing

130

18 U.S.C. 2516-2518.

18 U.S.C. 2511(2)(c).

132

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

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”).

A computer trespasser is a person who: (A) “accesses a protected computer without authorization and thus has no

reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and

(B) does not include a person known by the owner or operator of the protected computer to have an existing contractual

relationship with the owner or operator of the protected computer for access to all or part of the protected computer,”

18 U.S.C. 2510(21).

133

“The Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General,

any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney

General in the Criminal Division specially designated by the Attorney General, may authorize an application to a

Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter

an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of

Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application

is made, when such interception may provide or has provided evidence of [the predicate offenses]....” 18 U.S.C.

2516(1).

Subsection 2516(1) “plainly calls for the prior, informed judgment of enforcement officers desiring court approval for

intercept authority, and investigative personnel may not themselves ask a judge for authority to wiretap or eavesdrop.

The mature judgment of a particular, responsible Department of Justice official is interposed as a critical precondition

of any judicial order,” United States v. Giordano, 416 U.S. 505, 515-16 (1974). Evidence generated without such senior

approval must be suppressed, id. at 23. However, “suppression is not warranted ... when a wiretap application or order

either misidentifies a DOJ official who could not legally authorize the wiretap or, ... identifies no official at all, so long

as the record shows that a statutorily designated official actually gave the authorization,” United States v. Gray, 521

F.3d 514, 526-27 (6th Cir. 2008), citing in accord, United States v. Callum, 410 F.3d 571, 576 (9th Cir. 2005); United

States v. Radcliff, 331 F.3d 1153, 1160-163 (10th Cir. 2003); United States v. Fudge, 325 F.3d 910, 918 (7th Cir. 2003).

134

The list appears in 18 U.S.C. 2516(1).

131

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from prosecution of one of the offenses on the predicate offense list.135 Any federal prosecutor

may approve an application for a court order under section 2518 authorizing the interception of

email or other electronic communications and the authority extends to any federal felony rather

than more limited list of federal felonies upon which a wiretap or bug must be predicated.136

At the state level, the principal prosecuting attorney of a state or any of its political subdivisions

may approve an application for an order authorizing wiretapping or electronic eavesdropping

based upon probable cause to believe that it will produce evidence of a felony under the state

laws covering murder, kidnaping, gambling, robbery, bribery, extortion, drug trafficking, or any

other crime dangerous to life, limb or property. State applications, court orders and other

procedures must at a minimum be as demanding as federal requirements.137

Applications for a court order authorizing wiretapping and electronic surveillance include:

•

the identity of the applicant and the official who authorized the application;

•

a full and complete statement of the facts including

•

details of the crime,

•

a particular description of the nature, location and place where the

interception is to occur,138

•

a particular description of the communications to be intercepted, and

•

the identities (if known) of the person committing the offense and of the

persons whose communications are to be intercepted;

•

a full and complete statement of the alternative investigative techniques used or

an explanation of why they would be futile or dangerous;

•

a statement of the period of time for which the interception is to be maintained

and if it will not terminate upon seizure of the communications sought, a

probable cause demonstration that further similar communications are likely to

occur;

•

a full and complete history of previous interception applications or efforts

involving the same parties or places;

•

in the case of an extension, the results to date or explanation for the want of

results; and

•

any additional information the judge may require.139

135

18 U.S.C. 2516(1)(l).

“Any attorney for the Government (as such term is defined for the purposes of the Federal Rules of Criminal

Procedure) may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant, in

conformity with section 2518 of this title, an order authorizing or approving the interception of electronic

communications by an investigative or law enforcement officer having responsibility for the investigation of the

offense as to which the application is made, when such interception may provide or has provided evidence of any

Federal felony,” 18 U.S.C. 2516(3); e.g., United States v. Benjamin, 72 F.Supp.2d 161, 189 (W.D.N.Y. 1999).

137

18 U.S.C. 2516(2).

138

Identification of the place where, or facilities over which, the targeted communications are to occur may be excused

where the court finds that the suspect has or will take steps to thwart interception, 18 U.S.C. 2518(11), (12); United

States v. Oliva, 686 F.3d 1106, 1109-110 (9th Cir. 2012).

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Before issuing an order authorizing interception, the court must find:

•

probable cause to believe that an individual is, has or is about to commit one or

more of the predicate offenses;

•

probable cause to believe that the particular communications concerning the

crime will be seized as a result of the interception requested;

•

probable cause to believe that “the facilities from which, or the place where, the

wire, oral, or electronic communications are to be intercepted are being used, or

are about to be used, in connection with the commission of such offense, or are

leased to, listed in the name of, or commonly used by such person”;140 and

•

that normal investigative procedures have been or are likely to be futile or too

dangerous.”141

Subsections 2518(4) and (5) demand that any interception order include:

•

the identity (if known) of the persons whose conversations are to be intercepted;

•

the nature and location of facilities and place covered by the order;

•

a particular description of the type of communication to be intercepted and an

indication of the crime to which it relates;

•

the individual approving the application and the agency executing the order;

(...continued)

139

18 U.S.C. 2518(1), (2).

140

18 U.S.C. 2518(3). Paragraphs 2518(3)(a) and (b) mirror the probable demands of the Fourth Amendment, i.e., that

the court find probable cause to believe that the interception will capture evidence of a specific offense, United States v.

Abu-Jihaad, 630 F.3d 102, 122 (2d Cir. 2010), citing, Dalia v. United States, 441 U.S. 238, 255 (1979). Title III,

however, provides its own particularity requirements relating to targets, facilities, locations, and crimes, United States

v. Gaines, 639 F.3d 423, 430 (8th Cir. 2011), citing inter alia, United States v. Donovan, 429 U.S. 413, 427 n.15 (1977).

141

18 U.S.C. 2518(3). As for the necessity requirement of paragraph 2518(3)(c), the Supreme Court explained in the

infancy of Title III that: “[I]t is at once apparent that [Title III] not only limits the crimes for which intercept authority

may be obtained but also imposes important preconditions to obtaining any intercept authority at all. Congress

legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear

intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant

the surreptitious interception of wire and oral communications. These procedures were not to be routinely employed as

the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal

investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too

dangerous. §§2518(1)(c) and (3)(c),” United States v. Giordano, 416 U.S. 505, 515 (1974).

Thus, “[t]he necessity requirement was intended to ensure that wiretaps are not used as the initial step in a criminal

investigation. However, officials need not exhaust every conceivable investigative technique before obtaining a

wiretap.” United States v. Forrester, 616 F.3d 929, 944 (9th Cir. 2010)(internal citations omitted); see also, United

States v. Long, 639 F.3d 293, 301 (7th Cir. 2011)(internal citations omitted)(“While this necessity requirement

discourages the use of wiretaps as a first-line investigative tool in the mine run of cases, it was not intended to ensure

that wiretaps are used only as a last resort in an investigation. Hence, the government’s burden of establishing necessity

is not high, and whether it met the burden is reviewed in a practical, common-sense fashion”); United States v. Glover,

681 F.3d 411, 420 (D.C.Cir. 2012)(“That [necessity] requirement is satisfied when traditional investigative techniques

have proved inadequate to reveal the operation’s full nature and scope”); United States v. Perez, 661 F.3d 568, 581 (1st

Cir. 2011); United States v. Foy, 641 F.3d 455, 464 (10th Cir. 2011); United States v. Wilson, 484 F.3d 267, 281 (4th

Cir. 2007).

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•

the period of time during which the interception may be conducted and an

indication of whether it may continue after the communication sought has been

seized;

•

an instruction that the order shall be executed

•

as soon as practicable, and

•

so as to minimize the extent of innocent communication seized;142 and

upon request, a direction for the cooperation of communications providers and

others necessary or useful for the execution of the order.143

Compliance with these procedures may be postponed briefly until after the interception effort has

begun, upon the approval of senior Justice Department officials in emergency cases involving

organized crime or national security threatening conspiracies or involving the risk of death or

serious injury.144

The court orders remain in effect only as long as required but not more than 30 days. After 30

days, the court may grant 30 day extensions subject to the procedures required for issuance of the

original order.145 During that time the court may require progress reports at such intervals as it

considers appropriate.146 Intercepted communications are to be recorded and the evidence secured

and placed under seal (with the possibility of copies for authorized law enforcement disclosure

and use) along with the application and the court’s order.147

142

Under subsection 2518(5), officers executing an interception order must make efforts to minimize the capture of

communications that are outside the scope of the orders; United States v. De La Cruz Suarez, 601 F.3d 1202, 1215 (11th

Cir. 2010). Whether their efforts are sufficient is matter governed by the circumstances surrounding the interception,

Scott v. United States, 436 U.S. 128, 135-37 (1978); United States v. Glover, 681 F.3d 411, 420-21 (D.C.Cir. 2012);

United States v. West, 589 F.3d 936, 939-40 (8th Cir. 2009); United States v. Yarbrough, 527 F.3d 1092, 1098 (10th Cir.

2008)(“In United States v. Willis, this court articulated the proper procedure for determining the reasonableness of

governmental efforts to avoid monitoring non-pertinent calls. 890 F.2d 1099, 1102 (10th Cir. 1989). The government

must make an initial prima facie showing of reasonable minimization. Id. ‘Once the government has made a prima facie

showing of reasonable minimization, the burden then shifts to the defendant to show more effective minimization could

have taken place.” Id. In determining whether the government has made a prima facie showing of reasonable efforts to

minimize the interception of non-pertinent calls, we consider the factors identified by the Supreme Court in Scott: (1)

whether a large number of the calls are very short, one-time only, or in guarded or coded language; (2) the breadth of

the investigation underlying the need for the wiretap; (3) whether the phone is public or private; and (4) whether the

non-minimized calls occurred early in the surveillance. 436 U.S. at 140-41. It is also appropriate to consider (5) the

extent to which the authorizing judge supervised the ongoing wiretap. United States v. Lopez, 300 F.3d 46, 57 (1st Cir.

2002); United States v. Daly, 535 F.2d 434, 442 (8th Cir. 1976); United States v. Vento, 533 F.2d 838, 853 (3d Cir.

1976)”).

143

18 U.S.C. 2518(4).

144

18 U.S.C. 2518(7). An observation made a quarter of a century ago remains true: “very little case-law interpretation

of the emergency requirement exists,” United States v. Crouch, 666 F.Supp. 1414, 1416 (N.D. Cal. 1987)(holding that

twenty-day-old information indicating the defendants would commit a bank robbery within the next sixty days did not

constitute a sufficient emergency to justify invocation of subsection 2518(7)); but see, Nabozny v. Marshall, 781 F.2d

83, 84-5 (6th Cir. 1986)(holding with respect to a hostage situation “an emergency situation existed within the terms of

the statute”).

145

18 U.S.C. 2518(5).

146

18 U.S.C. 2518(6).

147

18 U.S.C. 2518(8)(a),(b). Paragraph 2518(8)(a) requires that court ordered interceptions be recorded and that the

recording immediately be sealed by the court, upon expiration of the interception authority. The seal or a satisfactory

explanation for its absence is a prerequisite to the admissibility of the contents or anything derived from the contents as

(continued...)

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Within 90 days of the expiration of the order those whose communications have been intercepted

are entitled to notice, and evidence secured through the intercept may be introduced into evidence

with 10 days’ advance notice to the parties.148

Title III also describes conditions under which information derived from a court ordered

interception may be disclosed or otherwise used. It permits disclosure and use for official

purposes by:

•

other law enforcement officials including foreign officials;149

•

federal intelligence officers to the extent that it involves foreign intelligence

information;150

•

other American or foreign government officials to the extent that it involves the

threat of hostile acts by foreign powers, their agents, or international terrorists.151

It also allows witnesses testifying in federal or state proceedings to reveal the results of a Title III

tap,152 provided the intercepted conversation or other communication is not privileged.153

(...continued)

evidence.

“The ‘absence’ the Government must satisfactorily explain encompasses not only the total absence of a seal but also the

absence of a timely applied seal,” United States v. Ojeda Rios, 495 U.S. 257, 263 (1990). “[T]he ‘satisfactory

explanation’ language in §2518(8)(a) must be understood to require that the Government explain not only why a delay

occurred but also why it is excusable,” Id. at 265; United States v. Martin, 618 F.3d 705, 716, 718 (7th Cir. 2010)(some

internal citations omitted)(“[W]hat should be deemed ‘satisfactory’ in the context of a statute aimed at preventing

government tampering with electronic evidence must depend largely on the statutory objective. A satisfactory

explanation must dispel any reasonable suspicion of tampering, and also must be both accurate and believable. Whether

the explanation is satisfactory also may depend on the delay in sealing, unique pressure on the Government to obtain a

conviction due to particularly notorious charges or defendants, the importance of the recordings to the Government’s

case and whether the Government has established a procedure for complying with its sealing obligations.... Cf. United

States v. Quintero, 38 F.3d 1317, 1328-330 (3d Cir. 1994) (rejecting the prosecutor’s heavy workload as a satisfactory

explanation for a sealing delay because to do so ‘would be rendering extraordinary that which is ordinary’); United

States v. Carson, 969 F.2d 1480, 1498 (3d Cir. 1992) (rejecting the need to enhance the audibility of tapes as a

satisfactory explanation for a sealing delay because that need was “readily foreseeable and could just as readily become

routine”); but see, United States v. Bansal, 663 F.3d 634, 651-53 (3d Cir. 2011)(finding the government’s reasonable

mistake of fact a satisfactory explanation for its failure to seal in a timely manner).

The section does not preclude use or disclosure other than admissibility of the intercepted contents in judicial

proceedings, United States v. Amanuel, 615 F.3d 117, 125-28 (2d Cir. 2010)(uphold the admissibility of evidence

secured under a warrant based on interceptions that were recorded in violation of section 2518(8)(a)).

148

18 U.S.C. 2518(8)(d), (9).

149

18 U.S.C. 2517(1), (2), (5), (7). This includes the disclosures to a criminal defendant required in 18 U.S.C. 2518(9),

cf., SEC v. Rajaratnam, 622 F.3d 159, 172-87 (2d Cir. 2010)(holding that a government attorney may disclose wiretap

communications to a criminal defendant under 18 U.S.C. 2517(2) and that under some circumstances the defendant

may be compelled to disclose them in the context of a governmental civil enforcement action).

150

18 U.S.C. 2517(6). “‘[F]oreign intelligence information,’ for purposes of section 2517(6) of this title, means—(A)

information, whether or not concerning a United States person, that relates to the ability of the United States to protect

against—(i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (ii)

sabotage or intentional terrorism by a foreign power or an agent of a foreign power; or (iii) clandestine intelligence

activities by and intelligence service or network of a foreign power or by an agent of a foreign power; or (B)

information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that

relates to—(i) the national defense or the security of the United States; or (ii) the conduct of the foreign affairs of the

United States,” 18 U.S.C. 2510(19).

151

18 U.S.C. 2518(8).

152

18 U.S.C. 2517(3), (5).

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Without a Title III order and without offending Title III, authorities may intercept the wire, oral,

or electronic communications, it they have the consent of one of the parties to the

communication.154 As noted earlier, 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.155 This is not to say that subscriber consent

alone is sufficient, for it is the parties to the conversation whose privacy is designed to be

protected.156 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.157

Little judicial or academic commentary accompanies the narrow “computer trespasser”

justification for governmental interception of electronic communications in paragraph

2511(2)(i).158 The paragraph originated as a temporary provision in the USA PATRIOT Act,159 and

seems designed to enable authorities to track intruders who would surreptitiously use the

computer systems of others to cover their trail.160

Title III: Consequences of a Violation

Criminal Penalties

Interception, use, or disclosure in violation of Title III is generally punishable by imprisonment

for not more than five years and/or a fine of not more than $250,000 for individuals and not more

than $500,000 for organizations.161 The same penalties apply to the unlawful capture of cell

(...continued)

153

18 U.S.C. 2517(4).

154

18 U.S.C. 2511(2)(c).

155

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).

156

Anthony v. United States, 667 F.2d 870, 876 (10th Cir. 1981).

157

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).

158

See, Clemnts-Jeffrey v. Springfield, 810 F.Supp.2d 857, 871-72 (S.D.Ohio 2011)(“As Plaintiffs correctly point out,

§2511(2)(i) is completely inapposite because the Absolute Defendants, who intercepted Plaintiffs’ electronic

communications, were not ‘acting under color of law’”).

159

Section 217, P.L. 107-56, 115 Stat. 291 (2001).

160

Implementation of the USA PATRIOT Act: Crime, Terrorism and the Age of Technology: Hearing Before the

Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 109th Cong., 2d sess.

30-1 (2005)(prepared statement of FBI Dep. Ass’t Director Steven M. Martinez).

161

“Except as provided in (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section

shall be fined under this title* or imprisoned not more than five years, or both.” 18 U.S.C. 2511(4)(a).

* Section 3559 of title 18 classifies as a felony any offense with a maximum penalty of imprisonment of more than one

(continued...)

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phone and cordless phone conversations, since the Homeland Security Act162 repealed the reduced

penalty provisions that at one time applied to the unlawful interceptions using radio scanners and

the like.163 There is a reduced penalty, however, for filching satellite communications as long as

the interception is not conducted for criminal, tortious, nor mercenary purposes: unauthorized

interceptions are broadly proscribed subject to an exception for unscrambled transmissions164 and

are subject to the general five-year penalty, but interceptions for neither criminal, tortious, nor

mercenary purposes subject offenders to only civil punishment.165 Equipment used to wiretap or

eavesdrop in violation of Title III is subject to confiscation by the United States, either in a

separate civil proceeding or a part of the prosecution of the offender.166

In addition to exemptions previously mentioned, Title III provides a defense to criminal liability

based on good faith.167

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year; and as a Class A misdemeanor any offense with a maximum penalty of imprisonment set at between six months

and one year. Unless Congress clearly rejects the general fine ceilings it provides, section 3571 of title 18 sets the fines

for felonies at not more than $250,000 for individuals and not more than $500,000 for organizations, and for class A

misdemeanors at not more than $100,000 for individuals and not more than $200,000 for organizations. If there is

monetary loss or gain associated with the offense, the offender may alternatively be fined not more than twice the

amount of the loss or gain, 18 U.S.C. 3571.

162

116 Stat. 2158 (2002).

163

18 U.S.C. 2511(4)(b)(2000 ed.).

164

“(b) Conduct otherwise an offense under this subsection that consists of or relates to the interception of a satellite

transmission that is not encrypted or scrambled and that is transmitted—(i) to a broadcasting station for purposes of

retransmission to the general public; or (ii) as an audio subcarrier intended for redistribution to facilities open to the

public, but not including data transmissions or telephone calls, is not an offense under this subsection unless the

conduct is for the purpose of direct or indirect commercial advantage or private financial gain,” 18 U.S.C. 2511(4)(b).

165

“(5)(a)(I) If the communication is—(A) a private satellite video communication that is not scrambled or encrypted

and the conduct in violation of this chapter is the private viewing of that communication and is not for a tortious or

illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; or (B) a radio

communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal

Communications Commission that is not scrambled or encrypted and the conduct in violation of this chapter is not for

tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then

the person who engages in such conduct shall be subject to suit by the Federal Government in a court of competent

jurisdiction. (ii) In an action under this subsection—(A) if the violation of this chapter is a first offense for the person

under paragraph (a) of subsection (4) and such person has not been found liable in a civil action under section 2520 of

this title, the Federal Government shall be entitled to appropriate injunctive relief; and (B) if the violation of this

chapter is a second or subsequent offense under paragraph (a) of subsection (4) or such person has been found liable in

any prior civil action under section 2520, the person shall be subject to a mandatory $500 civil fine.

“(b) The court may use any means within its authority to enforce an injunction issued under paragraph (ii)(A), and shall

impose a civil fine of not less than $500 for each violation of such an injunction.” 18 U.S.C. 2511(5).

Under 18 U.S.C. 2520, victims may recover the greater of actual damages or statutory damages of not less than $50 and

not more than $500 for the first offense; those amounts are increased to $100 and $1000 for subsequent offenses.

166

18 U.S.C. 2513 (“Any electronic, mechanical, or other device used, sent, carried, manufactured, assembled,

possessed, sold, or advertised in violation of section 2511 or section 2512 of this chapter may be seized and forfeited to

the United States ... ”); 18 U.S.C. 983(a)(3)(C)(“In lieu of, or in addition to, filing a civil forfeiture complaint, the

Government may include a forfeiture allegation in a criminal indictment ... ”).

167

“A good faith reliance on—(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a

statutory authorization; (2) a request of an investigative or law enforcement officer under section 2518(7) of this title;

or (3) a good faith determination that section 2511(3) [electronic communications provider authority to disclose content

of an electronic communication “(i) as otherwise authorized in section 2511(2)(a) or 2517 of this title; (ii) with the

lawful consent of the originator or any addressee or intended recipient of such communication; (iii) to a person

employed or authorized, or whose facilities are used, to forward such communication to its destination; or (iv) which

were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if such

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Civil Liability

Victims of a violation of Title III may be entitled to equitable relief, damages (equal to the greater

of actual damages, $100 per day of violation, or $10,000),168 punitive damages, reasonable

attorney’s fees and reasonable litigation costs.169 A majority of federal courts hold that a court

may decline to award damages, attorneys’ fees and costs, but a few still consider such awards

mandatory.170 In addition, a majority hold that governmental entities other than the United States

may be liable for violations of section 2520171 and that law enforcement officers enjoy a qualified

immunity from suit under section 2520.172

The cause of action created in section 2520 is subject to a good faith defense.173 Efforts to claim

the defense by anyone other than government officials or someone working at their direction have

(...continued)

divulgence is made to a law enforcement agency] or 2511(2)(I) [interception of communications of a trespasser in a

computer system] of this title permitted the conduct complained of; is a complete defense against any civil or criminal

action brought under this chapter or any other law,” 18 U.S.C. 2520(d).

168

The $10,000 lump sum for liquidated damages is limited to a single award per victim rather than permitting $10,000

multiples based on the number of violations or the number of types of violations, as long as the violations are

“interrelated and time compacted,” Smoot v. United Transportation Union, 246 F.3d 633, 642-645 (6th Cir. 2001);

Desilets v. Wal-Mart Stores, Inc., 171 F.3d 711, 713 (1st Cir. 1999); see also, Dish Nework v. Delvecchio, 831

F.Supp.2d 595, 601 (W.D.N.Y. 2011)(“”Although a range is given for violations under 2520(c)(1), Congress provided

no such range under 2520(c)(2). Therefore, in the Court’s view, the discretion provided to it allows it only to decide

between no damages and $10,000”).

169

18 U.S.C. 2520(b), (c).

170

Compare, e.g., DirecTV, Inc. v. Barczewski, 604 F.3d 1004, 1006-1008 (7th Cir. 2010); DirecTV, Inc. v. Brown, 371

F.3d 814, 818 (11th Cir. 2004); Dorris v. Absher, 179 F.3d, 420, 429-30 (6th Cir. 1999); Nalley v. Nalley, 53 F.3d 649,

651-53 (4th Cir. 1995), Reynolds v. Spears, 93 F.3d 428, 433 (8th Cir. 1996); DirecTV, Inc. v. Neznak, 371 F.Supp.2d

130, 133-34 (D.Conn. 2005) (each concluding that courts have discretion), with, Rodgers v. Wood, 910 F.2d 444, 44749 (7th Cir. 1990) and Menda Biton v. Menda, 812 F.Supp. 283, 284 (D. Puerto Rico 1993) (courts have no such

discretion) (note that after Menda, the First Circuit in Desilets v. Wal-Mart Stores, Inc., 171 F.3d at 716-17 treated as a

matter for the trial court’s discretion the question of whether the award of plaintiff’s attorneys’ fees should be reduced

when punitive damages have been denied).

Section 2520(c) has a second statutory damage provision, available for violations involving private satellite videos or

radio communications, 18 U.S.C. 2520(c)(1). This provision is more clearly mandatory (18 U.S.C. 2520(c)(1): “the

court shall access damages” versus 18 U.S.C. 2520(c)(2): “the court may assess as damages”)(emphasis added in both

instances).

171

Adams v. Battle Creek, 250 F.3d 980, 984 (6th Cir. 2001); Organizacion JD Ltda. v. United States Department of

Justice, 18 F.3d 91, 94-5 (2d Cir. 1994); Garza v. Bexar Metropolitan Water District, 639 F.Supp.2d 770, 773-74

(W.D.Tex. 2009); Connor v. Tate, 130 F.Supp.2d 1370, 1374 (N.D.Ga. 2001); Dorris v. Absher, 959 F.Supp. 813, 820

(M.D.Tenn. 1997), aff’d/rev’d in part on other grounds, 179 F.3d 420 (6th Cir. 1999); PBA Local No. 38 v. Woodbridge

Police Department, 832 F.Supp. 808, 822-23 (D.N.J. 1993) (each concluding that governmental entities may be held

liable); contra, Abbott v. Winthrop Harbor, 205 F.3d 976, 980 (7th Cir. 2000); Amati v. Woodstock, 176 F.3d 952, 956

(7th Cir. 1999).

172

Narducci v. Moore, 572 F.3d 313, 323 (7th Cir. 2009); Tapley v. Collins, 211 F.3d 1210, 1216 (11th Cir. 2000);

Blake v. Wright, 179 F.3d 1003, 1011-13(6th Cir. 1999); Babb v. Eagleton, 614 F.Supp.2d 1232, 1237-238 (N.D.Okla.

2008); contra, Berry v. Funk, 146 F.3d 1003, 1013 (D.C.Cir. 1998); see generally, Qualified Immunity as Defense in

Suit Under Federal Wiretap Act (18 U.S.C.A. §§2510 et seq.), 178 ALR FED. 1.

173

18 U.S.C. 2520(d) (“A good faith reliance on—(1) a court warrant or order, a grand jury subpoena, a legislative

authorization, or a statutory authorization; (2) a request of an investigative or law enforcement officer under section

2518(7) of this title; or (3) a good faith determination that section 2511(3) or 2511(2)(i) of this title permitted the

conduct complained of; [—] is a complete defense against any civil or criminal action brought under this chapter or any

other law”); SEC v. Rajaratnam, 622 F.3d 159, 175 (2d Cir. 2010); Clements-Jeffrey v. Springfield, 810 F.Supp.2d 857,

872 (S.D. Ohio 2011).

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been largely unsuccessful.174 Moreover, as addressed more extensively below, the 2008 Foreign

Intelligence Surveillance Amendments Act, under some circumstances, bars any state or federal

cause of action against anyone who assists the government with the installation or use of a means

of electronic eavesdropping or electronic surveillance.175

Civil Liability of the United States

The USA PATRIOT Act authorizes a cause of action against the United States for willful

violations of Title III, the Foreign Intelligence Surveillance Act or the provisions governing stored

communications in 18 U.S.C. 2701-2712.176 Successful plaintiffs are entitled to the greater of

$10,000 or actual damages, and reasonable litigation costs.177

Administrative Action

Upon a judicial or administrative finding of a Title III violation suggesting possible intentional or

willful misconduct on the part of a federal officer or employee, the federal agency or department

involved may institute disciplinary action. It is required to explain to its Inspector General’s

office if it declines to do so.178

Attorney Discipline

At one time, the American Bar Association (ABA) considered it ethical misconduct for an

attorney to intercept or record a conversation without the consent of all of the parties to the

conversation, ABA Formal Op. 337 (1974). The reaction of state regulatory authorities with the

174

Williams v. Poulos, 11 F.3d 271, 285 (1st Cir. 1993); United States v. Wuliger, 981 F.2d 1497, 1507 (6th Cir. 1992);

Rice v. Rice, 951 F.2d 942, 944-45 (8th Cir. 1991); but see, McCready v. eBay, 453 F.3d 882, 892 (7th Cir. 2006).

175

50 U.S.C. 1885a(“Notwithstanding any other provision of law, a civil action may not lie or be maintained in a

Federal or State court against any person for providing assistance to an element of the intelligence community, and

shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such

action is pending that - (1) any assistance by that person was provided pursuant to an order of the court established

under section 1803(a) of this title [relating to electronic surveillance under FISA] directing such assistance; (2) any

assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B)[relating to

the Attorney General’s assurance that no court approval is required] or 2709(b)[relating to a national security letter] of

title 18; (3) any assistance by that person was provided pursuant to a directive under section 1802(a)(4)[relating to

electronic surveillance without a court order under FISA] ... or 1881a(h)[relating to communications of overseas targets

under FISA] of this title directing such assistance; [or] (4) in the case of a covered civil action, the assistance alleged to

have been provided by the electronic communication service provider was—(A) in connection with an intelligence

activity involving communications that was - (i) authorized by the President during the period beginning on September

11, 2001, and ending on January 17, 2007 ... ”).

176

18 U.S.C. 2712.

177

18 U.S.C. 2712(a).

178

“If a court or appropriate department or agency determines that the United States or any of its departments or

agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the

circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the

United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt

of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly

initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head

of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the

Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General

with the reasons for such determination,” 18 U.S.C. 2520(f).

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power to discipline professional misconduct was mixed. Some agreed with the ABA.179 Some

agreed with the ABA, but expanded the circumstances under which recording could be conducted

within ethical bounds.180 Some disagreed with the ABA view.181 The ABA has since repudiated its

earlier position, ABA Formal Op. 01-422 (2001). Attorneys who engage in unlawful wiretapping

or electronic eavesdropping will remain subject to professional discipline in every jurisdiction.182

In light of the ABA’s change of position, courts and bar associations have had varied reactions to

lawful wiretapping or electronic eavesdropping by members of the bar.183

179

Ala. Opinion 84-22 (1984); People v. Smith, 778 P.2d 685, 686, 687 (Colo. 1989); Haw. Formal Opinion No. 30

(1988); Ind.State Bar Ass’n Op.No.1 (2000); Iowa State Bar Ass’n v. Mollman, 488 N.W.2d 168, 169-70, 171-72 (Iowa

1992); Mo.Advisory Comm. Op. Misc. 30 (1978); Tex.Stat.Bar Op. 514 (1996); Va. LEO #1635 (1995), Va. LEO

#1324; Gunter v. Virginia State Bar, 238 Va. 617, 621-22, 385 S.E.2d 597, 600 (1989).

The federal courts seem to have been in accord, Parrott v. Wilson, 707 F.2d 1262 (11th Cir. 1983); Moody v. IRS, 654

F.2d 795 (D.C.Cir. 1981); Ward v. Maritz, Inc., 156 F.R.D. 592 (D.N.J. 1994); Wilson v. Lamb, 125 F.R.D. 142

(E.D.Ky. 1989); Haigh V. Matsushita Electric Corp., 676 F.Supp. 1332 (E.D.Va. 1987).

180

Ariz. Opinion No. 95-03 (1995); Alaska Bar Ass’n Eth.Comm. Ethics Opinions No. 95-5 (1995) and No. 91-4

(1991); Idaho Formal Opinion 130 (1989); Kan.Bar.Ass’n Opinion 96-9 (1997); Ky.Opinion E-279 (1984);

Minn.Law.Prof. Resp.Bd. Opinion No. 18 (1996); Ohio Bd.Com.Griev.Disp. Opinion No. 97-3 (1997); S.C. Ethics

Advisory Opinion 92-17 (1992); Tenn.Bd.Prof.Resp. Formal Ethics Opinion No. 86-F-14(a) (1986).

181

D.C. Opinion No. 229 (1992) (recording was not unethical because it occurred under circumstances in which the

uninformed party should have anticipated that the conversation would be recorded or otherwise memorialized);

Mississippi Bar v. Attorney ST., 621 So.2d 229 (Miss. 1993)(context of the circumstances test); Conn.Bar Ass’‘n Op.

98-9 (1998)(same); Mich.State Bar Op. RI-309 (1998)(same); Me.State Bar Op.No. 168 (1999)(same); N.M.Opinion

1996-2 (1996)(members of the bar are advised that there are no clear guidelines and that the prudent attorney avoids

surreptitious recording); N.C. RPC 171 (1994)(lawyers are encouraged to disclose to the other lawyer that a

conversation is being tape recorded); Okla.Bar Ass’n Opinion 307 (1994)(a lawyer may secretly recording his or her

conversations without the knowledge or consent of other parties to the conversation unless the recording is unlawful or

in violation of some ethical standard involving more than simply recording); Ore.State Bar Ass’n Formal Opinion No.

1991-74 (1991) (an attorney with one party consent he or she may record a telephone conversation “in absence of

conduct which would reasonably lead an individual to believe that no recording would be made”); Utah State Bar

Ethics Advisory Opinion No. 96-04 (1996) (“recording conversations to which an attorney is a party without prior

disclosure to the other parties is not unethical when the act, considered within the context of the circumstances, does

not involve dishonesty, fraud, deceit or misrepresentation”); Wis.Opinion E-94-5 (“whether the secret recording of a

telephone conversation by a lawyer involves ‛dishonesty, fraud, deceit or misrepresentation’ under SCR 20:8.4(c)

depends upon all the circumstances operating at the time”). In New York, the question of whether an attorney’s

surreptitiously recording conversations is ethically suspect is determined by locality, compare, Ass’n of the Bar of City

of N.Y. Formal Opinion No. 1995-10 (1995)(secret recording is per se unethical), with, N.Y.County Lawyer’s Ass’n

Opinion No. 696 (1993)(secret recording is not per se unethical).

182

Cf., Nissan Motor Co., Ltd. v. Nissan Computer Corp., 180 F.Supp.2d 1089, 1095-97 (C.D.Cal. 2002).

183

E.g., State v. Murtagh, 169 P.3d 602, 617-18 (Alaska 2007)(“undisclosed recording is not unethical”); In re

Crossen, 450 Mass. 533, 558, 880 N.E.2d 352, 372 (2008) (undisclosed recording was unethical where it was part of

scheme to coerce or manufacture testimony against the judge presiding over pending litigation); Midwest Motor Sports

v. Arctic Cat Sales, Inc., 347 F.3d 693, 699 (8th Cir. 2003) (citing ABA Comm. on Ethics and Prof’l Responsibility,

Formal Op. 01-422, which states that recording without consent should be prohibited when circumstances make it

unethical); United States v. Smallwood, 365 F. Supp.2d 689, 697-98 (E.D. Va. 2005) (holding that a lawyer cannot

ethically record a conversation without the consent of all parties, even though doing so is not illegal under Virginia

law). Declaring the new ABA opinion to be an “overcorrection,” one bar association explained that secret taping should

not be routine practice, but that it should be permitted if it advances a “societal good.” Ass’n of the Bar of the City of

New York Formal Opinion No. 2003-02 (2003). For a New York state bar opinion employing a similar line of

reasoning, see, Mena v. Key Food Stores Co-operative, Inc., 758 N.Y.S.2d 246, 247-50 (N.Y. Sup. Ct. 2003) (conduct

of attorney who obtained a private investigator’s services for a client and instructed the client on the use of recording

equipment held not to warrant severe sanctions, because there was a compelling public interest in exposing the racial

discrimination that was the subject of the secret recordings); see also, S.C. Bar Ethics Advisory Op. 08-13 (November

14, 2008)(noting that the S.C. ethical prohibition on undisclosed recording by attorneys, based on the earlier ABA

opinion, had not been withdrawn); Tex. Ethics Op. 575 (November 2006)(undisclosed recording by an attorney is not a

per se violation of the Texas Disciplinary Rules of Professional Conduct); Mo. Formal Advisory Op. 123 (March 8,

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Congressional Research Service

Privacy: An Overview of the Electronic Communications Privacy Act

Exclusion of Evidence

When the federal wiretap statute prohibits disclosure, the information is inadmissible as evidence

before any federal, state, or local tribunal or authority.184 Individuals whose conversations have

been intercepted or against whom the interception was directed185 have standing to claim the

benefits of the section 2515 exclusionary rule through a motion to suppress under 18 U.S.C.

2518(10)(a). Paragraph 2518(10)(a) bars admission as long as the evidence is the product of (1)

an unlawful interception, (2) an interception authorized by a facially insufficient court order, or

(3) an interception executed in manner substantially contrary to the order authorizing the

interception. Mere technical noncompliance is not enough; the defect must be of a nature that

substantially undermines the regime of court-supervised interception for law enforcement

purposes.186

Although the Supreme Court has held that section 2515 may require suppression in instances

where the Fourth Amendment exclusionary rule would not,187 some of the lower courts have

recognized the applicability of the good faith exception to the Fourth Amendment exclusionary

rule in section 2515 cases.188 Other courts have held, moreover, that the fruits of an unlawful

wiretapping or electronic eavesdropping may be used for impeachment purposes.189

(...continued)

2006)(agreeing with ABA Formal Opinion 01-422); see generally, CRS Report R42650, Wiretapping, Tape Recorders,

and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation.

184

“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication

and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before

any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the

United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of

this chapter,” 18 U.S.C. 2515 (emphasis added); United States v. Chavez, 416 U.S. 562, 570 (1974); United States v.

Lnu, 575 F.3d 298, 301 (3d Cir. 2009); United States v. Lam, 271 F.Supp.2d 1182, 1183-184 (N.D.Cal. 2003). Note

that suppression does not extend to unlawfully intercepted electronic communications, United States v.

Amanuel, 615 F.3d 117, 125 (2d Cir. 2010); United States v. Steiger, 318 F.3d 1039, 1050-52 (11th Cir. 2003); United

States v. Jones, 364 F. Supp.2d 1303, 1308-09 (D.Utah 2005); nor does it extend to evidence secured in violation the

pen register/trap and trace provisions, United States v. German, 486 F.3d 849, 852-53 (5th Cir. 2007).

185

18 U.S.C. 2510(11)(“‘aggrieved person’ means a person who was a party to any an intercepted wire, oral, or

electronic communication or a person against whom the interception was directed”); United States v. Oliva, 686 F.3d

1106, 1108-109 (9th Cir. 2012).

186

United States v. Lomeli, 676 F.3d 734, 739 (8th Cir. 2012)(internal citations omitted)(“Suppression is not justified if

the facial insufficiency of the wiretap order is not more than a technical defect. According to Moore, our analysis is two

tiered, first identifying the omission or defect at issue ... and second, determining whether that defect violates a core

statutory requirement or whether it is a mere technical defect not warranting suppression”); see also, United States v.

Lopez, 300 F.3d 46, 55-6 (1st Cir. 2002); United States v. Staffeldt, 451 F.3d 578, 582-85 (9th Cir. 2006); United States

v. Gray, 521 F.3d 514, 522 (6th Cir. 2008); United States v. Foy, 641 F.3d 455, 463 (10th Cir. 2011). This is the case

even where the court is clearly troubled by the government’s failure to comply with the requirements of Title III,

United States v. Callum, 410 F.3d 571, 579 (9th Cir. 2005)(“Under the force of precedent, we uphold the challenged

wiretap applications and orders. Still, we note that the Department of Justice and its officers did not cover themselves

with glory in obtaining the wiretap orders at issue in this case. Title III is an exacting statute obviously meant to be

followed punctiliously, yet the officers repeatedly ignored its clear requirements”).

187

Gelbard v. United States, 408 U.S. 41, 52 (1972).

188

United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994); United States v. Ambrosio, 898 F.Supp. 177, 187

(S.D.N.Y. 1995); United States v. Malelzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988); United States v. Mullen, 451

F.Supp.2d 509, 530-31 (W.D.N.Y. 2006); contra, United States v. Rice, 478 F.3d 704, 711-14 (6th Cir. 2007).

Gelbard held that a grand jury witness might claim the protection of section 2515 through a refusal to answer questions

based upon an unlawful wiretap notwithstanding the fact that the Fourth Amendment exclusionary rule does not apply

in grand jury proceed

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