The federal wiretap act: the permissible scope of eavesdropping in the family home.

• Author: Rahavy, Shana K.

1. INTRODUCTION

   Few, if any, courts find a violation of the Federal Wiretap Act when a concerned parent eavesdrops or secretly records a minor child's telephone conversation in the family home. (1) This consensus emerged among the Federal circuits, notwithstanding the statutory language of the Federal Wiretap Act, which prohibits "any person" from intercepting oral, wire, or electronic communications. (2) While courts have agreed on the narrow proposition that wiretapping in the parent-child context generally falls outside of statutory prohibitions, the general applicability of the Wiretap Act in the domestic realm remains unclear. (3) The Supreme Court has provided little guidance on the issue and has repeatedly declined requests to squarely address the reach of the Act inside the family home. (4) As a result, the extent to which the Act exempts family members remains unsettled unclear.

   This note addresses wiretapping in the family home and explores the myriad factual scenarios addressed by courts in order to determine when wiretapping in the domestic realm transgresses from lawful and benign to possible criminal or civil liability. Part II addresses the Federal Wiretap Act's general prohibitions, including both the statutory and common law exceptions relied upon by courts in applying the Act in the domestic context. Part II will also discuss the relevant legislative history. Part III addresses the scope of the Act in the family home and analyzes the proffered justifications for permitting or restricting domestic eavesdropping. In conclusion, Part IV discusses the effect of the development and proliferation of sophisticated surveillance technologies on wiretapping in the family home.

2. HISTORY

   1. Title III General Statutory Prohibitions

      Congress enacted the Federal Wiretap Act as part of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III) in an effort to better articulate a balance between the privacy rights of individuals and the legitimate needs of law enforcement. (5) The Act seeks to safeguard privacy in oral and wire communications while simultaneously articulating when law enforcement officials may intercept such communications. (6) Title III prohibits the intentional interception of wire, oral or electronic communications, unless specifically provided for in the statute. (7) Under the Act, an interception occurs by the "aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." (8) Pursuant to the Act, a wire communication includes "any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other connection." (9) Unlike wire communications, federal law protects oral communications only where there is a reasonable expectation of privacy. (10)

      The original Wiretap Act prohibited only the intentional interception of wire or oral communications. (11) As other methods of communication became increasingly commonplace, such as cellular phones, cordless phones and electronic communications transmitted in digital form, Congress amended the Wiretap Act with the Electronic Communications and Privacy Act of 1986 (ECPA) to also prohibit the intentional interception of electronic communications. (12) Title I of the ECPA defines electronic communications as "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...." (13) The ECPA not only prohibits the interception of electronic communications, but also the unauthorized access to these communications while in storage pursuant to the Stored Communications Act created under Title II of the ECPA. (14) The ECPA also bars the use and disclosure of an illegally obtained communication, although such liability requires more than proof of intentional conduct. (15)

      States may also enact statues regulating wiretapping. (16) All states, with the exception of Vermont, have enacted wiretap statutes. (17) To avoid preemption, states may adopt more stringent standards than required under Federal law, but not less restrictive. (18) Thus, States cannot admit evidence that would be suppressed in Federal Court, yet could exclude evidence admissible in Federal court. (19)

   2. Enumerated Statutory Exceptions

      Title III expressly excludes certain classes of individuals from the operation of the statute, but contains no explicit exception for spouses or family members. (20) For example, switchboard operators, agents of communications service providers engaged in service related activities and certain government employees operating in the normal course of business are exempt from liability under Title III. (21)

      Additionally, as provided in the Act, one party to the communication may consent to the interception, and in limited circumstances may lawfully authorize a third party interception. (22) The consent exception permits interception of "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" (23) Absent such consent, only a court of competent jurisdiction may authorize interception." (24) Some courts rely on the one-party consent exception in the context of parent-child wiretapping suggesting that a parent may vicariously consent to the interception based on genuine concern for the child's welfare. (25)

      Moreover, the Wiretap Act carves out an exception for the use of extension telephones. (26) The exception applies to "standard" telephonic instruments furnished to a subscriber or user by a communication carrier and used by the subscriber in his or her "ordinary course of business." (27) The statutory definition neglects to elaborate on what conduct falls within the ordinary course of business and the Supreme Court has yet to address the scope of the exception. (28) Federal and State courts have interpreted the phrase "in the ordinary course of business" differently depending on the context. (29) In the commercial context, courts interpret the phrase narrowly. (30) Businesses may avoid Title III liability if the interception is for a legitimate business purpose, routine and with notice. (31) In the domestic relations context, however, courts broadly interpret the phrase "in the ordinary course of business" permitting family members to intercept each other's telephone conversations by listening on another phone extension in the family home. (32)

   3. Interspousal Wiretapping Common Law Exception

      The Supreme Court has not yet addressed the split in the federal circuits on the issue of interspousal wiretapping. (33) The issue generally arises where one spouse conducts a wiretap of the conversations engaged in by the other spouse by attaching a recording device to an extension phone in the family home. (34) In Simpson v. Simpson, (35) the Fifth Circuit created an implied exception for interspousal wiretapping in order to promote tranquility in the home. (36) The Simpson court reasoned that issues relating to marital disputes and domestic conflicts are generally matters of state law and as such fall outside the purview of the federal wiretap statute. (37)

      The majority of federal appellate courts have rejected Simpson, holding Title III applicable to interspousal wiretapping in the marital home. (38) Courts rejected the logic of Simpson arguing that Title III is a criminal statute with little justification for exempting spouses. (39) Moreover, even the few states retaining the doctrine of interspousal tort immunity would be unable to shield criminal prosecutions resulting under Title III. (40) Courts have criticized the Simpson court's statutory analysis and interpretation of legislative history. (41)

      Title III prohibits "any person" from intercepting oral, wire, or electronic communications unless "specifically" authorized by statute. (42) Thus, because spouses are not specifically exempted, the statute unambiguously applies to wiretapping within the marital home. (43) Though Title III originated as a crime control statute, the legislative history reveals congressional awareness of electronic eavesdropping in the domestic realm. (44) At a congressional hearing on invasions of privacy held prior to the enactment of Title III, Senator Long noted that in the non-governmental arena "[t]he three large areas of snooping ... are (1) industrial (2) divorce cases (3) [and] politics." (45) Additionally, Robert Blakey, a drafter of Title III, testified that "private bugging ... can be divided into two broad categories, commercial espionage and marital litigation." (46) Most significantly, Congress could have codified the Simpson exception when it subsequently amended Title III. (47)

   4. Remedies

      Title III provides for both criminal and civil liability for a violation of the Federal Wiretap Act. (48) Title III states in pertinent part: "whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both." (49) A civil cause of action is available to "any person" whose wire or oral communication is intercepted, disclosed, or used, and may be brought against "any person" who "intercepts, discloses, or uses, or procures any other person to intercept, disclose or use such communication." (50) The victim may recover compensatory and punitive damages, as well as any reasonable attorney's fees and costs. (51) Moreover, Title III authorizes the suppression of information obtained by means of an illegal interception and its fruits. (52)

      In the domestic...