Wiretapping may seem like something that only happens when the government is investigating a crime but it occurs all the time by everyday people. Spouses, business partners, employers and employees, businesses and their competitors, and parties to a lawsuit may be guilty of wiretapping, just to name a few. Generally, wiretapping is illegal and perpetrators can face significant liability. Accordingly, if you think you are being wiretapped or you want to record someone without their knowledge, you should consult an attorney to advise you regarding your rights.
Misunderstandings About Wiretapping
In many instances, the individuals or companies doing the wiretapping know they are acting illegally and want the information for an unlawful purpose, such as trying to steal a trade secret. However, in other circumstances, the perpetrators may not understand they cannot record someone or intercept their phone or electronic communications. For example, spouses may think they have the right to monitor what the other one is doing online because the computer is in their shared home. Some employers think they can freely record their employees’ calls or monitor their computers and don’t realize they can be liable if they don’t take the appropriate steps first. That’s why it is imperative to know the law.
Federal Electronic Privacy Laws
The Electronic Communications Privacy Act is the primary federal electronic privacy law. It is divided into two parts. Part 1, known as the Wiretap Act, prohibits the interception of any telephonic or electronic communications while the communication is occurring. Part 2, called the Stored Communications Act or SCA, broadly covers electronic data or information stored by an internet service provider, such as Google, AOL, or Microsoft. The SCA will be covered in a future post.
The Wiretap Act
The Wiretap Act applies to law enforcement and private individuals, such as employers, vendors, spouses, and anyone who would benefit from obtaining private communications. To constitute illegal wiretapping, the following requirements must be met:
- The communication is aural, like a telephone call, or a data format, such as a text message, email, or other data transmission.
- The acquisition of the communication, or “interception,” must occur in “real-time,” meaning while the call is being made or the data is being transmitted.
- The method of interception must include a device capable of capturing or acquiring communication. Examples include recording a room with an open phone, placing a recorder on a telephone line, using an app to record a cell phone call made between third parties, and auto-forwarding email being transmitted between third parties.
- The interception must be non-consensual. Mere ownership of a telephone or computer does not establish consent nor does a close relationship between the parties. For example, spouses, employers, and employees do not have the right to record or intercept each other’s communications. Instead, the person intercepting the communication must have evidence of formal consent that is express or clearly implied. This can be established by a written waiver or a sign or notice that a call or communication may be recorded.
If information has been obtained in violation of the Wiretap Act, it is illegal to knowingly use or disclose such information. For example, a party cannot use or disclose illegally obtained materials or information in a court proceeding or give illegally obtained materials or information to their attorney. An attorney also may not knowingly use or disclose such illegally obtained information provided by the client.
Protecting Yourself from Illegal Wiretaps
A red flag that may indicate wiretapping is hearing another person make a stray remark or comment about you that includes information the person shouldn’t have known about. If you think you may be the target of an interception, you should take some basic steps, including:
- Changing your passwords.
- Periodically, checking your cell phone or computer for apps or programs that can copy and forward your messages or data, especially if other people have had access to your cell phone or computer.
- Having your devices and email accounts checked to see if any settings, such as auto-forwarding of messages or texts, have been activated. This is particularly true if you are in a relationship that is experiencing dysfunction, such as a divorce or workplace harassment. You’re at a greater risk of having your electronic privacy compromised.
Wiretapping or electronic eavesdropping can be done with relatively inexpensive equipment that can be purchased online, so you shouldn’t assume others would have trouble doing it to you. Be careful about maintaining your privacy.
Penalties and Liability under the Wiretap Act
Wiretapping is a felony and can subject the eavesdropper to substantial fines and civil liability. Victims can sue to recover intercepted information or data as well as obtain actual and statutory financial awards. It’s important to note that a party is liable for illegal wiretapping regardless of whether the information they intercepted has any value. Even if all they recorded was information they already knew or was outdated, it is still a violation of federal law.
If you suspect you are being wiretapped, you should speak to a lawyer to discuss how to proceed. Also, consult an attorney if you are considering any type of recording or interception of communications regardless of the circumstances. Please contact us if you have questions about the Wiretap Act.
