Vol. 6, No. 1, Pg. 14. INTERSPOUSAL WIRETAPPING: COSTLY GAME.

• Author: By C. Dan Wyatt HI

South Carolina Lawyer

1994.

Vol. 6, No. 1, Pg. 14.

INTERSPOUSAL WIRETAPPING: COSTLY GAME

14INTERSPOUSAL WIRETAPPING: COSTLY GAMEBy C. Dan Wyatt HI"Many lawyers are unaware of the legal liabilities implicated when an individual uses electronic surveillance to spy on his or her spouse (interspousal wiretapping). By surreptitiously listening to or recording his wife, Harry may be guilty of violating Title Ill of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. §§ 2510-2520 . . . , which carries both criminal and civil penalties."

South Carolina lawyer patiently listens to his client, Harry, who contemplates divorcing Sally, his wife of seven years. When Harry first met Sally, things were "perfect-as perfect as can be expected in an imperfect world," according to Harry. Now, after seven years of marriage, the gleam has faded from Harry's eyes, the laughter is gone and, worst of all, he suspects his wife of having an affair with one of her coworkers.

Harry is sure he wants a divorce, but because he is a man of relatively modest means, a drawn out legal battle or alimony payments would financially cripple him.

Realizing that evidence of adultery would be of great advantage to Harry in any forthcoming domestic litigation, the lawyer inquires further about the suspected affair and learns that Harry has no concrete evidence, only strong hunches.

Having watched one too many James Bond movies, Harry has already thought of a strategy. He is sure "that ?#!! boyfriend" has been calling Sally at home. He therefore proposes to "tap" his home phone, record their conversations and ...bingo! The unsuspecting lovers will be caught with their hands in the cookie jar.

"There's nothing illegal about doing that, is there?" Harry asks his lawyer.

Many lawyers are unaware of the legal liabilities implicated when an individual uses electronic surveillance to spy on his or her spouse (interspousal wiretapping). By surreptitiously listening to or recording his wife, Harry may be guilty of violating Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. §§ 2510-2520 (West 1970 & Supp. 1993)(Title HI or the Wiretap Act), which carries both criminal and civil penalties.

Moreover, if indeed any conversations are illegally seized, and the lawyer uses those conversations knowing of their illegality-a transcript of the conversation used in a divorce proceeding, for instance-the lawyer may also be liable for violating the statute and also subject to both criminal and civil penalties.

Harry's question is therefore a significant one for lawyer as well as the client. This article generally provides an overview of Title III, specifically focusing on its potential application to interspousal wiretapping.

Title III:

An Interspousal Exception?

If Harry goes through with his plan and secretly records some of his wife's conversations, he may be guilty of violating federal law. Title III, 18 U.S.C.A. § 2511(1)(a) (West Supp. 1993) provides:

(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 electric communication; . . . shall be punished. .

As the Supreme Court has explained, "[t]he purpose of [Title III] .. . was effectively to prohibit . . . all

16interceptions of oral and wire communications, except those specifically provided for in the Act. .. ." United States v. Giordano, 416 U.S. 505, 514 (1974).

Unfortunately, a split in the federal circuit courts of appeal has resulted in great confusion in this area. Despite its clear language, some circuits early on held that Title III 'does not apply to interspousal wiretapping. See Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert denied, 419 U.S. 897 (1974); Anonymous v. Anonymous, 558 F.2d 677 (2d Cir. 1977). In Simpson, the Fifth Circuit, the first to address the issue, read an implied interspousal wiretap exception into the Act, reasoning that "Congress did not intend such a far-reaching result, one extending into areas normally left to states, those of the marital home and domestic conflicts." Id. at 805.

Following the Si...