3A- 5- The Wiretap Act

Wire, Oral, and Electronic Communications

As originally enacted, the Wiretap Act applied only to wire and oral communications. But over time, the Wiretap Act has been updated. The largest changes to the statute came in 1986 with the passage of the Electronic Communications Privacy Act ("ECPA"). The ECPA broadened the scope of the Wiretap Act so that it also applies to "electronic communications." Accordingly, in its current iteration, the Wiretap Act applies to "wire communications," "oral communications," and "electronic communications." These terms are defined as follows: A "wire communication" is "any aural transfer"—i.e., a transfer of the human voice—"made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception." "Oral communications" are "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." In other words, these are in-person conversations where there is an expectation that no third parties are listening. "Electronic communications" are defined 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" other than wire and oral communications.9 Most importantly, this definition includes email communications within its scope.

Enforcement

It is a federal crime under the Wiretap Act for any individual to "intercept" a wire, oral, or electronic communication. An exception exists for certain entities, such as telecommunication companies, that intercept communications in the "ordinary course of business." A violation of this prohibition can result in the imposition of fines of up to $250,000 and imprisonment for up to five years. In addition to his or her prosecutorial authority, the United States Attorney General also has the authority to file a civil suit seeking an injunction against unlawful intercepts. Beyond the criminal exposure for a violation of the Wiretap Act, the statute also provides for a private right of action. A successful plaintiff is permitted to recover whichever is greater among actual damages, statutory damages of either $100 a day, or statutory damages of $10,000. Punitive damages, attorney's fees, and costs are also recoverable. There is a two-year statute of limitations on private claims. A litigant may also sue the United States government if its conduct is a willful violation of the Wiretap Act. If a plaintiff prevails in a claim against the government, the plaintiff is entitled actual damages or $10,000 in statutory damages, whichever is greater, along with litigation costs (but not attorney's fees).

Key Points

Provides protections for communications above those provided by the Fourth Amendment Applies to written, oral, and electronic communications A court order is necessary to conduct a wiretap There are four primary requirements to obtain a court order: (1) predicate crime; (2) particularity; (3) necessity; and (4) minimization A one-party consent statute, meaning that if one party consents to the eavesdropping, then no court order is necessary If a communication is recorded without a court order, it cannot be admitted into evidence in court proceedings Violation is a criminal offense, and there is also a privacy cause of action

Court Order Requirement

The Wiretap Act imposes obligations upon law enforcement that are greater than those imposed by the Fourth Amendment and its Exclusionary Rule. Prior to intercepting wire, oral, and electronic communications, law enforcement agencies must obtain court permission to do so. To obtain a court order permitting a wiretap, an application must be pre-approved by a high-ranking law enforcement official11 and satisfy four statutory requirements: (1) Predicate Crime Requirement - The crime being investigated must be one of the dozens of specifically enumerated criminal offenses, called the "predicate crime" requirement; (2) Particularity Requirement - Probable cause must exist and the application must particularly identify where the communication takes place, the type of communication to be intercepted, and the identity of the persons whose communications will be intercepted, referred to as the "particularity" requirement; (3) Necessity Requirement - Use of a wiretap must be necessary because other investigative techniques have been tried and failed or would be likely to fail, which is called the "necessity" requirement; and (4) Minimization Requirement - Any interception must be minimized by, among other restrictions, a court order lasting no longer than 30 days without additional court approval, called the "minimization" requirement. Any wire or oral communication intercepted in violation of the Wiretap Act—including one obtained by law enforcement without a court order—may not be received as evidence during any court, administrative, or other official proceeding.

One-Party vs. Two-Party Consent

The federal Wiretap Act is an example of what is generally referred to as a "one-party consent" statute, meaning that a wire, oral, or electronic communication may be recorded or eavesdropped upon so long as any one party to the conversation has consented to it.16 A number of states, however, have adopted "two-party consent" laws, which require that all participants to a conversation grant permission prior to a conversation being recorded. Because the Wiretap Act is a one-party consent statute, law enforcement does not need to obtain prior court approval when it is working with an informant that is directly involved in the conversation being intercepted.

"Wiretap Act"

What has come to be known as the "Wiretap Act" was originally passed as Title III to the Omnibus Crime Control Act and Safe Streets Act of 1968.1 With its passage, Congress intended "to protect effectively the privacy of wire and oral communications."2 To achieve this goal, the Wiretap Act did the following: (1) it "defined on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized"; (2) it "prohibited any unauthorized interceptions of such communications"; and (3) it regulated "the use of the contents [of intercepted communications] in evidence in courts and administrative proceedings."