Should Parents Be Allowed to Record a Child's Telephone Conversations When They Believe the Child Is in Danger?: an Examination of the Federal Wiretap Statute and the Doctrine of Vicarious Consent in the Context of a Criminal Prosecution

Publication year2005



Should Parents Be Allowed to Record a Child's Telephone Conversations When They Believe the Child Is in Danger?: An Examination of the Federal Wiretap Statute and the Doctrine of Vicarious Consent in the Context of a Criminal Prosecution

Daniel R. Dinger(fn*)

I. Introduction

On February 28, 1997, the mother of a Georgia teenager picked up a telephone in her home and found that her daughter, then thirteen years old, was engaged in conversation with Kyle Richard Bishop.(fn1) While it is not unusual for a thirteen-year-old girl to talk on the telephone, the conversation that the young girl's mother overheard that day was not a typical teenage conversation. In fact, the conversation was very much atypical for two reasons. First, Bishop was a thirty-eight-year-old man who, along with his wife, lived across the street from the young girl.(fn2) Second, the conversation involved both talk of a sexual nature and discussions of killing the young girl's parents.(fn3)

Concerned for her daughter's safety and well-being, the young girl's mother contacted law enforcement and informed them of what she had overheard.(fn4) The authorities immediately launched an investigation of Bishop, but it stalled as quickly as it started because the young girl denied that anything inappropriate had occurred between her and Bishop.(fn5) Not satisfied, the girl's parents took matters into their own hands. Specifically, "[w]ithin hours of the police interview, the victim's parents went to Radio Shack and purchased a tape recorder to record all of the phone calls to and from their home. After installing the equipment, the parents recorded numerous phone conversations between Bishop and the victim."(fn6) Copies of these conversations were later turned over to law enforcement. These tapes, in conjunction with the young victim's testimony "that she had engaged in sexual acts with Bishop,"(fn7) ultimately led to Bishop's indictment on charges of child molestation, aggravated child molestation, and aggravated sexual battery.(fn8)

As the case against Bishop proceeded, prosecutors sought to use the taped conversations as evidence against him.(fn9) In response, Bishop filed a challenge to the prosecution's use of the tapes, arguing that they were recorded in violation of Georgia law.(fn10) The trial court denied Bishop's motion.(fn11) In so doing, it relied on a legal doctrine known as the doctrine of vicarious consent.(fn12) Though the trial court was ultimately overruled on the issue, based on the language of a specific Georgia statute,(fn13) it expressed a belief that has been adopted by a small handful of federal and state courts.(fn14) Specifically, the trial court adopted the view that a parent can surreptitiously tape record a minor child's telephone conversations with a third party-and do so without violating federal and state wiretap statutes-if the parent has a good faith and objectively reasonable basis for believing that recording the conversations is in the minor child's best interest.(fn15)

This Article will address the little-used but important doctrine of vicarious consent; in particular, this Article will argue that the doctrine should be more widely accepted by the criminal courts. Part II gives a brief overview of the federal wiretap statute, its state law counterparts, and the doctrine of vicarious consent that has emerged as courts have interpreted federal and state wiretap legislation. Part III addresses the doctrine's viability and, as referenced above, argues that it should be accepted by the criminal courts. Specifically, Part III argues that when a parent records a child's telephone conversations with a third party out of a true concern for the child and under a belief that doing so is in the child's best interest, those recordings should be available for use during a criminal prosecution as evidence against both the third party and, if necessary, the child whose parents recorded the conversations. Finally, Part IV briefly addresses important procedural issues arising when criminal courts accept the vicarious consent doctrine, and Part V concludes by summarizing the policies, issues, and answers presented herein.

II. Background

The judicially created doctrine of vicarious consent has developed over the last ten years through a series of little-referenced but significant federal and state court decisions.(fn16) These court decisions, though relatively few in number, have uniformly held that parents who secretly, but with appropriate motivations, record a child's telephone conversations can avoid civil and criminal liability under federal and state wiretapping laws that generally prohibit such action.(fn17) This section addresses those federal and state laws, the creation and nature of the vicarious consent doctrine, and the various criticisms that have been leveled against it.

A. The Federal Wiretap Statute

Enacted in 1968 as Title III of the Omnibus Crime Control and Safe Streets Act, the federal wiretap statute governs the interception and capture of wire and other specified communications.(fn18) As stated by the United States Supreme Court, the purpose of Title III is "to prohibit, on the pain of criminal and civil penalties, all interceptions of oral and wire communications, except those specifically provided for in the Act."(fn19) Because the doctrine of vicarious consent necessarily involves parental interception and capture of a child's communications, understanding the basics of Title III is a prerequisite to understanding the doctrine itself. Specifically, to fully understand the ramifications of the vicarious consent doctrine, what is needed is a basic understanding of Title Ill's history, combined with an overview of the process for obtaining a valid wiretap, the penalties associated with violations of the federal wiretap statute, the consent exception to the general prohibition of wiretapping, and the applicability of Title III in domestic situations.

1. A Brief History of the Federal Wiretap Statute

As stated above, Congress enacted the federal wiretap statute in 1968 as Title III of the Omnibus Crime Control and Safe Streets Act. Prior to Title Ill's existence, wiretapping by both law enforcement and private citizens was governed by the Federal Communications Act of 1934.(fn20) In 1986, nearly twenty years after its enactment, Congress amended and updated Title III to keep pace with technological advancements in the area of wiretapping and eavesdropping.(fn21) The original act, which was passed to assist law enforcement in the investigation and prosecution of organized crime and to protect the privacy rights of United States citizens against the unwarranted interception of telephonic and other communications,(fn22) was a response to two key decisions by the United States Supreme Court. In the first case, Berger v. New York,(fn23)the Supreme Court ruled that Fourth Amendment protections apply to the electronic eavesdropping of oral communications such that conversations intended to be private are protected by the Fourth Amendment.(fn24) The Berger Court further "delineated the constitutional criteria that electronic surveillance legislation should contain."(fn25) In the second case, Katz v. United States,(fn26) the Court held that when there is a reasonable expectation of privacy, intercepting a telephone conversation in a public telephone booth constitutes a search and seizure for the purposes of the Fourth Amendment.(fn27) Title III was enacted to provide for compliance with these two rulings and the constitutional standards that they set forth for the lawful interception of covered communications.(fn28)

2. An Overview of Title III

In its current form, Title III is a very complex piece of legislation that addresses many different aspects of legal and illegal wiretapping. With respect to the doctrine of vicarious consent, however, only a few portions of the legislation are particularly relevant. These portions of the law, which include the basic process for obtaining a valid wiretap, the penalties associated with violations of Title III, and the one-party consent exception to the general prohibition against wiretapping, are discussed below.

a. Obtaining a Legally Valid Wiretap

As stated by the United States Supreme Court, Title III "prescribes the procedure for securing judicial authority to intercept wire communications in the investigation of specified serious offenses."(fn29) Title III also identifies the types of interceptions that are lawful and those that are not in an effort to "safeguard privacy in oral and wire communications while simultaneously articulating when law enforcement may intercept such communications."(fn30)

The Supreme Court provided an overview of the way in which wiretaps are authorized under the federal wiretap statute in its decision in United States v. Giordano:Judicial wiretap orders must be preceded by applications containing prescribed information. The judge must make certain findings before authorizing interceptions, including the existence of probable cause. The orders themselves must particularize the extent and nature of the interceptions that they authorize, and they expire within a specified time unless expressly extended by a judge based on further application by enforcement officials. Judicial supervision of the...

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