Domestic Eavesdropping and Wiretapping: Admissibility of Intercepted Communications
| Publication year | 1992 |
| Pages | 455 |
| Citation | Vol. 21 No. 3 Pg. 455 |
1992, March, Pg. 455. Domestic Eavesdropping and Wiretapping: Admissibility of Intercepted Communications
The technology of surveillance has become an issue for attorneys representing litigants in dissolution proceedings. Body bugs, miniature tape recording devices and wiretap transmitters are readily available to those who feel compelled to provide their attorneys and the court secret recordings of their spouses and children. As one commentator points out,(fn1) the motivation for spousal wiretapping is this all-too-frequent lament made to the attorney: "He/she comes off amiable and virtuous in court. How is the judge going to know what he/she is really like?" By virtue of this perception, the litigant (and perhaps his or her uninformed attorney) is tempted to render additional, but in many instances unlawful, assistance to the trier of fact.
This article is intended to familiarize the family law practitioner with the perils of eavesdropping and wiretapping when such activities are confined to a domestic setting. According to one commentator, a lack of familiarity with such issues resulting in the
Federal Lawill-advised use and dissemination of illegally obtained evidence could subject the client, the lawyer, the private investigator, the secretary who transcribes secret tapes and anyone who used or discussed the tapes to various liabilities under federal law.(fn2)
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Act") governs the interception of communications.(fn3) This federal law inter alia imposes criminal felony liability not only for the act of wiretapping but also for the disclosure or use of the contents of any communication that was known to be wiretapped.(fn4) Further, criminal liability under the Act can be imposed not only on the wiretapper but on any person who procures another to intercept or endeavor to intercept any wire, oral or electronic communication.(fn5) [Emphasis added.]
It should be noted that under the Act, it is not unlawful for a person to intercept a wire or oral communication in instances where the person is a party to the communication or where one party previously has given consent, unless the communication is intercepted for the purpose of committing a criminal or tortious act.(fn6)
In addition to the foregoing criminal liability, a civil damage action may be brought against the offender for actual damages or profits realized, or for a statutory fine of $100 per day for each day of violation or $10,000, whichever is greater.(fn7) Reasonable attorney fees and costs as well as punitive damages also may be awarded.
Until August 23, 1991, no federal or state court had determined whether a custodial parent's interception, within the family home, of telephone conversations between a minor child and a third party (without the child's knowledge or consent) constituted a violation of the child's rights of privacy under Title III of the Act. The Tenth Circuit rendered an opinion on this issue in the case of New-comb v. Ingle.(fn8)
In Newcomb, a mother who was the custodial parent wiretapped, inside her home, telephone conversations between her son and her former spouse. One of these recordings revealed that the child's father had been instructing the child and his brother, over the telephone, as they set fire to the mother's home. This tape recorded conversation later was used to obtain a criminal conviction against the father and juvenile findings as to the children. When one of the children reached the age of majority, he sued his mother and others for money damages for both the wiretapping and the use of the tape recordings under the civil damage recovery provisions of the Act.
The Newcomb court held that Title III did not apply to the interception. Therefore, the custodial parent's interception (by wiretap) of the minor's telephone conversations in her home, without the child's knowledge or consent, was not protected
by Title III. The court gave five reasons for its holding. First, 18 U.S.C. § 2510 (5)(a)(i) exempts from the wiretapping act communications intercepted by a business phone customer in the ordinary course of its business through the use of a business extension phone.(fn9) Second, "[n]o persuasive reason exists why Congress would exempt a business extension and not one in the home."(fn10) Third, the court found the difference between listening in on an extension and tapping the line within the home in the context of this case to be immaterial.(fn11)
Fourth, the court expressly found that Congress intended an exemption to the Act to apply to interceptions of...
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