Divorce Wiretapping

Wiretapping refers to the process where one individual or party secretly listens to or tapes the private conversations of another party over a telephone line, computer, or other communication devices.

Can You Record Somebody Without Their Permission?

That depends on where you are at the time and whether you are a party to the conversation. The federal government and the states have their own specific laws governing the legality of a secret recording of oral, telephonic, and other communications. A person’s covert taping of a conversation is governed by the laws of the state in which she is making the recording unless the federal law is more protective of privacy.

Federal law requires only one-party consent, enabling you to record a conversation in person or over the phone if you are participating in the conversation. If you are not part of the conversation but recording it, you are engaging in illegal eavesdropping or wiretapping.

Some states will allow recording even if only one party gives consent. In those states, you are usually free to record others in public as long as it’s not invasive, such as recording someone in the bathroom.

Other states require all parties to give consent to be recorded. If consent is not given and you tape a conversation, you can be charged with a felony or a misdemeanor and be ordered to serve jail time or pay a substantial fine.

Two-party consent states include:

1. Connecticut
2. California
3. Delaware
4. Florida
5. Illinois
6. Maryland
7. Massachusetts
8. Michigan
9. Montana
10. New Hampshire
11. Oregon
12. Pennsylvania
13. Washington

Federal Law

In response to public outcry about the government’s covert recording of the activities of political activist groups in the 1960s, Congress enacted the Wiretap Act as part of the Omnibus Crime Control and Safe Streets Act of 1968 (“Wiretap Act.”) Under the Wiretap Act, it is illegal for any person to secretly record an oral, telephonic, or electronic communication that the other party or parties could reasonably expect to be private. There are two enormous exceptions built into the law. A recording otherwise in violation of the Wiretap Act is legal if:

• One person in the conversation consents to the recording, or
• The person making the secret recording is authorized by law to do so

In practice, this means that you can record a conversation if you are one of the parties to a conversation. This creates a rather large loophole, but note: you still cannot record a conversation between your spouse or ex-spouse and a third person.

Is It a Crime to Secretly Record a Spouse’s Conversations?

It might be. It is generally considered a crime to record another person’s conversations without that person’s consent. Some states require all parties’ consent, while others have determined that only one party needs to give consent. In any case, information obtained from an illegal recording will not be admissible in court.

If the conversation is between a spouse and a third party, it is very unlikely that any recording of this conversation will be legal. This is because it is unlikely that either party, much less both, consented to have the conversation recorded.

Is There an Interspousal Exception?

Most courts have found no interspousal exception to the law. If a court finds no such interspousal exception, the wiretapping spouse may not use electronic evidence in the divorce proceedings and may face a civil lawsuit or criminal charges.

Which Law Takes Precedence – Federal or State Law?

The federal Wiretap Act preempts all state laws that are less protective of privacy than it is. For example, any state law that would allow the secret recording of any communication without the consent of any party would be preempted by federal law. On the other hand, state laws that afford greater privacy protection to citizens than the Wiretap Act are not preempted by federal law, and their provisions will be enforced.

Are All Conversations Protected from Wiretapping?

No. The Wiretap Act and every state law governing stealthy recordings don’t protect all conversations – only those the speaker could reasonably expect to be private.

Whether a conversation would be considered private depends upon the context: Was the conversation in a private or a public place? Did the individual being recorded treat the subject matter as private? A person who bragged at a party about cheating on their spouse cannot later object to this recording since it was made in public, and the person could not have had a reasonable expectation that it would be kept private.

Recording by Law Enforcement Bodies

Before the 1960s, police were not required to obtain a warrant before eavesdropping on a conversation. In 1956, the FBI developed the COINTELPRO (Counter-Intelligence Program) to infiltrate and monitor the Southern Christian Leadership Council, the NAACP, Martin Luther King, Jr., the National Lawyers Guild, the Black Panthers, the Weather Underground, and other civil rights and progressive political activist groups. The program ran through 1971 and involved the secret tape recording of conversations, meetings, and telephone calls.

The United States Supreme Court later determined that individuals have a reasonable expectation of privacy in their phone conversations and that law enforcement must obtain a search warrant before wiretapping. The discovery in 2013 that under the rubric of preventing terrorist attacks, the U.S. government once again intercepts and analyzes telephone and email communications of tens of millions of U.S. citizens shocked and appalled media figures and the public.

Penalties

Anyone who violates federal or state recording laws may face jail time, a fine, or even an order to pay damages in a civil lawsuit.

A person who violates the federal Wiretap Act faces a possible sentence of up to five years in prison, a fine of $500, or both.

A person who violates a state law prohibiting the secret recording of conversations will face the penalty prescribed by that state’s law. For example, a person violating California’s law faces a possible misdemeanor conviction, a one-year prison sentence, and a $2,500 fine.

In addition, in most states where taping someone who hasn’t consented to the recording is illegal, the recorded person can sue the individual doing the recording. Money damages are available to a person who wins such a civil lawsuit.

Do I Need a Lawyer for My Wiretapping Issue?

As more and more courts prohibit wiretapping, it is increasingly necessary to be aware of the law. If you have any issues, questions, or concerns related to wiretapping in your state, consulting with a local attorney may be helpful. Wiretapping laws can vary widely by state, so it will be helpful to consult a local attorney to determine what laws apply in your location.

If you face wiretapping charges, consult a criminal defense attorney near you as soon as possible. A knowledgeable lawyer can help you avoid civil liability and criminal charges.

If you are being wiretapped, your attorney can provide you with advice regarding the law in your state and will help ensure your rights are protected.

A divorce lawyer in your area can advise whether you can use evidence gathered through electronic eavesdropping in your divorce proceedings. They can also keep you updated regarding any changes to the law that might affect your legal rights and options.