Comprehensive Overview All 50 States

The purpose of this guide

This guide will identify and explain the legal regulations and implications of covert technical surveillance of private parties (eavesdropping) with regard to criminal and civil laws in each of the 50 states. This guide will highlight the law at federal and state levels, and analyze the legal environment on a state-by-state basis, considering:

  • the current status of each state regarding eavesdropping legal provisions
  • the impact of such laws on individuals and organizations
  • specific descriptions of the types of physical and cyber eavesdropping
  • the implications of such illegal actions, both criminal and civil
  • the most relevant legal citations

Eavesdropping remains a complex legal and technological topic today with legal implications of eavesdropping ranging from human rights to economic or safety implications. Laws and statutes have been constantly challenged with technological advancement. However, amendments to the eavesdropping laws over the last two decades have attempted to address current technical surveillance capabilities, with various degrees of success.

Notes and Disclaimer

This guide presents an overview of the legal impact of eavesdropping in the United States. It is based on the current legal provisions at both federal and state levels, which are clearly cited and referenced in each section. However, the legal framework of a state is comprised of additional elements, such as constitutional right or statements, precedent cases and other court decisions, preemption clauses, inclusive clauses, or additional rules, which the paper does not address.

The paper has been edited in a reasonable amount of time and should be regarded as a rough guide only. It represents our best efforts to analyze the law and outline the relevant information with regard to the client’s request: the basic civil and criminal legal implications of eavesdropping and references to physical and cyber means of eavesdropping.

Professionals such as attorneys and investigators should always consult their respective licensing board rules. In particular, attorneys should be mindful that while recording conversations may be legal for non-attorneys, state bar ethics rules often prohibit attorneys from engaging in such conduct and can open an attorney up to an administrative complaint through their respective state bar.

Means of eavesdropping

Eavesdropping encompasses a wide range of activities that can often be difficult to define.

As far as covert technical surveillance measures are concerned, they can be used to either listen to private conversations, track a person or vehicle, monitor a private place, retrieve stored electronic data, survey the use of electronic devices like computers or mobile phones and others.

From a legal point of view, these means are sometimes addressed separately, some as wiretapping or eavesdropping (recording and interceptions), some as intrusions or invasion of privacy (tracking, video surveillance) or cyber crimes (accessing private electronic data). As actions, wiretapping and eavesdropping are generally targeting information, while video surveillance and GPS tracking are primarily targeting actions and individuals.

Given the broad technological possibilities, such actions are not always easily distinguishable. For instance, video recording with sound can be subject to both interception laws, with regard to the audio content, as well as to invasion of privacy, for the video content. This is one of the most basic examples. Intelligent devices such as smartphones and tablets, increased connectivity to the internet and the ever changing technical infrastructure lead to complex cases of eavesdropping, that challenge the current legal framework.

This paper will follow primarily the legal implications of wiretapping, with insight on technical surveillance measures, secondarily.

The distinction between cyber and physical means of eavesdropping is of primary importance and will make the subject of distinct sections on this paper. The aim is to determine whether different technical means of eavesdropping are specifically addressed by state laws and if such different factors place an action under different law provisions.

 

Federal laws

The first instance of interception of communication addressed by law is classic wiretapping, by The Federal Wiretap Act. Later, the Act was extended to cover electronic communications and monitoring devices. Privacy is rarely specifically addressed by law, but rather a fundamental right awarded by Constitutions at the state and federal level. It is sometimes, however, being used to define circumstances of interest for the present paper.

The first federal Act regarding eavesdropping, The Federal Wiretap Act, was first passed as Title III of the Omnibus Crime Control and Safe Streets Act of 1968 to address interception of oral and wired conversations by wiretapping physical telephone lines. In 1986, The Electronic Communications Privacy Act (ECPA) extended that coverage to respond to the need of regulating the interception of computer and other digital and electronic communications, protecting electronic communications while in transit and also communications held in electronic storage. The Act applies to email, telephone conversations, and data stored electronically.

ECPA has three Titles, as follows[1]:

Title I of the ECPA is often referred to as the Wiretap Act and prohibits the intentional interception or the attempt to intercept any wire, oral, or electronic communication, except for persons authorized by law to intercept such communications or service providers. IT also prohibits the use of illegally obtained communications as court evidence.

Title II of the ECPA is commonly referred to as the Stored Communications Act and it ensures the privacy and protects the contents of private communications and content held in electronic storage. It also includes records held by service providers about their subscribers.

Title III of the ECPA, referred to as the Pen Register Act, addresses pen register and trap and trace devices and the circumstances of legally using such devices.

ECPA has been significantly amended over the last two decades, by the Communications Assistance to Law Enforcement Act of 1994[2], the USA Patriot Act of 2001[3], the Patriot Act reauthorization in 2006 and the Foreign Intelligence Surveillance Act Amendments[4] of 2008.

Efforts to update ECPA to address technological advancement are still of high interest in the political sphere[5], as well as among law scholars[6] and tech media[7]. Practitioners should also note that significant efforts to reform ECPA have been underway with proposals for amending the law having been presented before the U.S. Congress in both 2014 and 2015.

The Computer Fraud and Abuse Act[8] also addresses some forms of illegal surveillance activities, but is primarily focused on restricting computer-related activities pertaining to hacking.

The concept of privacy is however more broad and ambiguous. The most relevant reference to this concept, although not not specifically mentioned as “right to privacy”, is in the Fourth Amendment of the U.S. Constitution, which states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated […]”.

The ECPA and statutes based on the same provisions use an “expectation of privacy” as a criteria to determine the applicability of the law.

Privacy crimes, however, are rarely addressed by law, with most of the instances focusing on invasion of privacy in regard to bodily exposure.

Additionally, common law states often provide for invasion of privacy torts[9] that constitute a legal basis for a civil course of action. However, common law is put into practice on a case-by-case basis, based on precedents and related court decisions that are not addressed in the present paper.

Frequently Asked Questions

1) If I want to record a telephone call what laws are implicated?

A variety of laws and regulations can potentially apply to this situation. First and foremost, U.S. federal pursuant to the Wiretap Act (18 U.S.C. Section 2510 et seq.) applies to any such activity and requires at least 1 party to consent to the recording. Additionally, practitioners should also determine what state law may cover the situation as 12 states currently have laws that require the consent of all parties to the conversation. Practicing attorneys should also be aware that state bar ethics rules may apply.

2) What if I want to record or videotape an in-person meeting?

This type of activity has traditionally been covered by state laws on recording. Furthermore, some states have privacy laws that may be applicable.

3) If I find a recording device in a meeting location, what laws are implicated and what should I do next?

This situation can be complex depending on the location of the room and who placed the recording device. Potentially, both federal and state law are implicated at a variety of levels if the device was not placed by an employer in their own facility. Even if an employer placed such a device, state privacy laws are likely applicable. If a recording device was placed in an unauthorized manner, the conduct could be covered by the federal wiretap act, state recording laws as well as criminal laws related to trespass. One effective manner of investigating such an occurrence requires an in-person team to conduct a sweep of potentially affected locations.

4) If someone is capturing the data on my computer – either through a physical or cyber device, what laws are implicated and what should I do next?

Both state and federal law can apply in this situation, although such intrusions have typically been addressed through federal law under the Computer Fraud and Abuse Act (18 U.S.C. Section 1030 et seq.) A wide range of considerations determine what offense may be occurring. Ownership and location of the computer play a pivotal role in family / divorce matters. Another key factor to determine is whether information is being retrieved from an individual’s computer or from their respective cloud service. Under certain circumstance, the federal Wiretap Act may also apply to the unlawful capture of this data. Although, several steps may be taken to investigate such matters, a forensic examination of the involved computer will be an obvious first step.

5). The frequent case of wiretapping during divorce litigation.

In most of the US, one spouse can not wiretap the other spouse’s communication, with one exception: when a spouse has a good-faith belief that the other spouse is abusing their child, as concluded by a recent law review article which analyzes invasion of privacy in divorce litigation, historically, on a case-by-case basis[10]. As an example, a recent divorce case[11] developed into multiple lawsuits over the growing use of surveillance technology and the right to privacy, after the wife discovered during divorce procedures, that she was under constant surveillance by her husband. He had been using hidden cameras, microphones and spyware to record her actions and communication, which led to her and her friends and relatives who were also recorded, to start a federal court battle against the husband, his lawyer and the company that manufactured the monitoring software[12][13], seeking damages of hundreds of thousand of dollars.

Federal Provisions

Title 18, Chapter 119 of the U.S. Code addresses interception and disclosure of wire, oral, or electronic communications, prohibiting any person to:

  • intentionally intercept, endeavor to intercept, or procure any other person to intercept any wire, oral, or electronic communication
  • intentionally use, endeavor to use, or procure any other person to use or any electronic, mechanical, or other device to intercept any oral communication
  • intentionally disclose the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through illegal interception
  • intentionally use the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through illegal interception
  • intentionally disclose the contents of any wire, oral, or electronic communication, intercepted by authorized means with intent to obstruct a criminal investigation

As an exception, it shall not be unlawful for a person to intercept 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. It’s also important to note that evidence gathered in violation of the statute is inadmissible in most legal proceedings. Federal provisions address oral conversations, wire communications such as phone calls or telegraphic messages and electronic communications such as email, text messages, voice conferences.

Code excerpts

18 U.S. Code Chapter 119[14] – WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS

18 U.S. Code § 2510[15] – Definitions

(1)wire communication” means any aural transfer 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 […]

(2)oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication;

(4)intercept” means 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.

(5)electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than—

(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (being used in the ordinary course of its business)

(b) a hearing aid or similar device being used to correct subnormal hearing to not better than normal;

(12)electronic communication” means 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 photo-optical system […]

(17)electronic storage” means –

(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;

18 U.S. Code § 2511[16] – Interception and disclosure of wire, oral, or electronic communications prohibited

(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 electronic communication;

(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—

(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or

(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or

(iv) such use or endeavor to use

(A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or

(B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or

(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;

(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or […]

shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

(2) (d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept 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 unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

(4) (a) Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.

18 U.S. Code § 2515[17] – Prohibition of use as evidence of intercepted wire or oral communications

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

18 U.S. Code § 2520[18]Recovery of civil damages authorized

(a) In General.— Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

(b) Relief.— In an action under this section, appropriate relief includes –

(1) such preliminary and other equitable or declaratory relief as may be appropriate;

(2) damages under subsection (c) and punitive damages in appropriate cases; and

(3) a reasonable attorney’s fee and other litigation costs reasonably incurred.

(c) Computation of Damages.—

(2) In any other action under this section, the court may assess as damages whichever is the greater of—

(A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or

(B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.

(e) Limitation.— A civil action under this section may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.

18 U.S. Code § 2701[19] – Unlawful access to stored communications

(a) Offense.— Except as provided in subsection (c) of this section whoever

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

(b) Punishment.— The punishment for an offense under subsection (a) of this section is—

(1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State—

(A) a fine under this title or imprisonment for not more than 5 years, or both, in the case of a first offense under this subparagraph; and

(B) a fine under this title or imprisonment for not more than 10 years, or both, for any subsequent offense under this subparagraph; and

(2) in any other case—

(A) a fine under this title or imprisonment for not more than 1 year or both, in the case of a first offense under this paragraph; and

(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section.

18 U.S. Code § 2707[20]Civil action

(a) Cause of Action.— Except as provided in section 2703 (e), any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

(b) Relief.— In a civil action under this section, appropriate relief includes—

(1) such preliminary and other equitable or declaratory relief as may be appropriate;

(2) damages under subsection (c); and

(3) a reasonable attorney’s fee and other litigation costs reasonably incurred.

(c) Damages.— The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.

(f) Limitation.— A civil action under this section may not be commenced later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.

18 U.S. Code § 3121 – General prohibition on pen register and trap and trace device use; exception

(a) In General.— Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order […]

(d) Penalty.— Whoever knowingly violates subsection (a) shall be fined under this title or imprisoned not more than one year, or both.

18 U.S. Code § 1801 – Video voyeurism

(a) Whoever, in the special maritime and territorial jurisdiction of the United States, has the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.

(b) In this section […]

(3) the term “a private area of the individual” means the naked or undergarment clad genitals, pubic area, buttocks, or female breast of that individual;

(5) the term “under circumstances in which that individual has a reasonable expectation of privacy” means—

(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the individual was being captured; or

(B) circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.

Criminal implications

Whoever violates the provisions of either ECPA or the voyeurism law face both criminal and civil penalties.

Violations of Title I of ECPA can result in imprisonment for up to 5 years and fines of up to $250,000 for individuals and $500,000 for organizations. Interceptions for neither criminal, tortious, nor mercenary purposes subject offenders to only civil punishment. Equipment used to wiretap or eavesdrop is subject to confiscation by the United States[21]. As seen above, violations of the Stored Communications Act can result in imprisonment for up to 10 years, in the case of subsequent offenses. Violations of the video voyeurism law are punishable by a fine and up to one years of imprisonment.

Civil implications

According to 18 U.S. Code 2520, any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of the law, may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate.

Victims may be entitled to actual damages of either $100 per day for each day of violation, or $10,000, whichever is greater, punitive damages, attorney’s fees and reasonable litigation costs.

18 U.S. Code 2707 also entitles victims of unlawful access to stored communications to bring civil suits and recover damages, attorney’s fees and litigation costs. The minimum amount a plaintiff is entitled to receive is $1,000.

Cases and examples

Over the last years, ECPA has been challenged with complex cases related to the privacy of electronic communications.

Some of the notorious cases have shaken the foundation of the Act, rendering its provisions useless in the context of technological advancement. This is the case of United States of America v. Bradford C. Councilman[22] (2004, reversed 2005) which raised debates over whether the Wiretap Act, in the present form, provides protection for electronic communication such as email. The court debated over a scheme in which emails were copied while in transit, before being received by their intended recipients.

Another well-known to the public federal case of ECPA violation is that of Loverspy, a spyware software program used to access information about a person’s use of a device connected to the internet, in a clandestine manner. The federal indictment charged the program’s manufacturer with 35 counts, each carrying a maximum penalty of five years in prison and a maximum fine of $250,000[23]. Users of the Loverspy program were also charged with illegal computer hacking and with illegally intercepting the electronic communications of their victims, each of the two counts carrying a maximum penalty of 5 years in prison and a maximum fine of $250,000. The manufacturer of Loverspy is now on FBI’s list of most wanted cyber-criminals[24].

The technical environment developed over the last years allows not only easy breach of privacy, but also surreptitious mass surveillance actions, such as the notorious Pennsylvania case of spying through school-issued laptops[25]. Pennsylvania’s Lower Merion school district installed “anti-theft” software on student’s laptops, which remotely activated webcams and took snapshots while the computers were used at home. The content was then reviewed by the school staff, to look for “improper behavior at home”. The spy software could have been used on as many as 1800 students without their or their parent’s knowledge.

At a state level, specific laws or statutes can afford broader privacy rights to its citizens, by setting more restricting rules for wiretapping and surveillance. For instance, California telephone privacy statute holds unlawful any recording of a telephone conversation without notifying all parties to the conversation. Intercontinental Hotels lost a class action lawsuit in California[26], after recording calls made to its reservation numbers, without notifying callers, even though the recordings were not in violation of federal provisions.

Invasion of privacy claims are also filed by the hundreds, especially in the context of civil suits such as divorce litigation[27] or child custody lawsuits. However, privacy is usually debated by state courts on a case-by-case basis and according to each state’s law.

References to Physical TSCM

The federal law prohibits the illegal “interception of any wire, electronic, or oral communication”. Further definitions of terms lead to a very broad perspective on the law.

First, the law defines the term “intercept” as the acquisition of the contents of communication “through the use of any electronic, mechanical, or other device”.

The phrase “electronic, mechanical, or other device” is then defined as “any device or apparatus which can be used to intercept” a wire, electronic, or oral communication.

We can thus assert that the law addresses “interception of any wire, electronic, or oral communication through the use of any device which can be used to intercept such communication”. This is an all-inclusive perspective, that can literally address any means of interception and available devices.

However, paragraph (b) further describes and criminalizes classic wiretapping methods, by means of devices that further transmit information through either radio or wire networks and only with regard to oral communication. We believe that the more broad perspective resulted from the analysis of paragraph (a) includes the instance described in paragraph (b) and should prevail. This analysis is consequently valid for the states which enact the same provisions as the federal law.

References to Cyber TSCM

Electronic communication is defined as “any transfer of signals, signs, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system”. The content of such transfers can be subject to interception through the use of cyber tools. We assert that cyber methods of illegal interception are thus addressed by the law.

State laws

At the state level, most states have their own statutes that regulate the interception of private communication. Eavesdropping laws vary largely, some of the states having adopted similar provisions as the federal law, some even literally, while others affording greater protection than the federal laws.

One-party v. All-party consent states

Federal law requires that at least one party taking part in a communication must consent of recording or intercepting the communication. Thus, it is always illegal under federal law to record a communication to which one is not a party, and do not have consent of at least one party engaged in the communication.

Most U.S. states have adopted statutes that are in line with federal law and require only one party to consent to an interception or recording, but some states require that all parties consent prior to the recording of a personal conversation or communication.

States that require all-parties to consent to recordings, and hence criminalize recordings without notification are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana (requires all-party notification), New Hampshire, Pennsylvania, and Washington[28]. Delaware, while specifically requiring all-party consent, has conflicting laws.

US-Consent-Map1

Image source: http://recordinglaw.com/wp-content/uploads/2015/01/US-Consent-Map1.gif

In one-party consent states, anyone can legally record, and consequently use, any communication in which he is engaged without notifying the other parties. However, the matter of legally recording or intercepting oral, electronic or wire communications becomes complex when parties engaged are or act in different states.

Besides intercepting communications, some states also address the use of hidden cameras in private places as eavesdropping devices, although most of them specifically refer to the crime of voyeurism and not to invasion of privacy as unauthorized surveillance of other persons[29].

Privacy as underlying concept

The consent requirements are necessary but not always sufficient to deem unlawful an interception of communications.

As a baseline, the federal law sets a specific condition for unlawful interception of in-person conversations, defining “oral communications” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation”[30]. Such circumstances are to be considered on a case-by-case basis, but is reasonable to believe that most public places are not subject of the law.

State laws also use the concept of privacy to address circumstances in which interception or surveillance is unlawful, as the paper will subsequently show.

For instance, California’s well-known “paparazzi law”[31] uses a “reasonable expectation of privacy” to describe “private, personal, and familial activity” that may be the target of unlawful intrusion. Florida uses the term “place and time when a person has a reasonable expectation of privacy” with regard to the voyeurism law[32]. Maine has a Violation of privacy statute that criminalize trespassing and eavesdropping in “private places”, defined as places “where one may reasonably expect to be safe from surveillance”[33]. Michigan law deems unlawful to install in any private place, any device for observing, recording, transmitting, without the consent of the person or persons entitled to privacy in that place[34].

All these instances are based upon a concept that is hard to pinpoint and are, on a customary basis, addressed individually. Even when the law mentions specific circumstances such as places and times “when a reasonable person would believe that he or she could fully disrobe in privacy, including, but not limited to, the interior of a residential dwelling, bathroom, changing room, fitting room”, the law keeps an open clause to be able to address other similar circumstances.

It is thus speculative to make assertions about privacy issues. The most common debate over eavesdropping laws with regard to privacy is the public/private distinction that may apply to places or actions. While some of the laws specifically mention this distinction, it remains to be debated by state courts on a case-by-case basis.

Conflicting Laws

The legal environment addressing different forms of wiretapping and eavesdropping is not consistent in the US and thus it is not uncommon to discuss preemption in the case of conflicting federal v. state laws, or even state v. state cases.

Federal law is created at the national level, on the basis of U.S. Constitution and applies to U. S. states and territories. State law is the law of each separate state in the US and applies in that state alone. The state law usually applies to residents and visitors of the state and similarly to organizations based or operating in that state. Local law, through ordinances and regulations, is the third level of lawmaking, and apply to the specific area[35] (county, municipality, etc).

With regard to conflicting laws, formal preemption is used to determine which of the law takes precedence. Article IV, Paragraph 2 of the Constitution, commonly referred to as the Supremacy Clause, establishes that the “Constitution shall be the supreme Law of the Land”[36], and federal law take precedence over state laws, regulations or constitutions[37]. Further on, preemption can also occur at state level, when a local ordinance conflicts with the state statute on the same subject matter[38].

However, federal laws are usually used as reference for minimum standards. Hence, if a state law affords a person more rights than the federal law, the state law prevails within that state. Similarly, If a state imposes more responsibility on its residents than the federal law, the state law prevails within that state. However, if a state was to allow a person less rights or impose less responsibilities than federal law, the federal law prevails.

For instance, a recent ruling established that federal law, and specifically the federal Electronic Communication Privacy Act does not preempt California telephone privacy statute. The conflict was judged in a class action lawsuit against InterContinental Hotels, where plaintiffs claimed that the company monitored telephone calls made to its reservations number without notifying callers. InterContinental argued the preemption of the federal Wiretap Act that requires only one party to provide consent for communication interception as opposed to the California’s Invasion of Privacy Act, that requires that all parties to a communication consent to an interception. Because the state law at issue is more privacy-protective than the federal Wiretap Act, the court held that there was no preemption[39].

The federal law also sets nationwide rights, permissions and restrictions. No state law may violate citizens’ rights that are established by the U.S. Constitution. Such laws passed by the state can be overturned for being unconstitutional. If the federal law expressly prohibits something that the state law permits, the federal law also prevails[40].

Conflict of laws can also occur in interstate cases of eavesdropping, for instance intercepting a phone call from a one-party state to a two-party state. The general rule in this cases is that the law of the state with the most strict statute prevails.

 

SOURCES:

[1] Source: https://it.ojp.gov/default.aspx?area=privacy&page=1285

[2] Source: https://www.law.cornell.edu/uscode/text/18/2522

[3] Source: http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/html/PLAW-107publ56.htm

[4] Source: http://www.gpo.gov/fdsys/pkg/BILLS-110hr6304enr/pdf/BILLS-110hr6304enr.pdf

[5] Source: http://www.leahy.senate.gov/press/sjc-approves-leahy-lee-electronic-communications-privacy-amendments-act-

[6] Source: http://www.loc.gov/law/opportunities/PDFs/Kerr%20Next%20Gen.pdf

[7] Source: http://blogs.microsoft.com/on-the-issues/2013/12/05/a-day-of-action-to-demand-ecpa-reform/

[8] Source: https://www.law.cornell.edu/uscode/text/18/1030

[9] Source: http://www.tomwbell.com/NetLaw/Ch05/R2ndTorts.html

[10] Source: http://www.rbs2.com/dprivacy.pdf

[11] Source: http://usatoday30.usatoday.com/news/nation/story/2012/09/12/couples-case-raises-questions-about-privacy-surveillance/57753902/1

[12] Source: http://dockets.justia.com/docket/ohio/ohsdce/1:2011cv00884/151195

[13] Source: http://docs.justia.com/cases/federal/district-courts/ohio/ohsdce/1:2012cv00629/156614/109

[14] Source: https://www.law.cornell.edu/uscode/text/18/part-I/chapter-119

[15] Source: https://www.law.cornell.edu/uscode/text/18/2510

[16] Source: https://www.law.cornell.edu/uscode/text/18/2511

[17] Source: https://www.law.cornell.edu/uscode/text/18/2515

[18] Source: https://www.law.cornell.edu/uscode/text/18/2520

[19] Source: https://www.law.cornell.edu/uscode/text/18/2701

[20] Source: https://www.law.cornell.edu/uscode/text/18/2707

[21] Source: https://www.fas.org/sgp/crs/misc/R41733.pdf

[22] Source: http://www.internetlibrary.com/cases/lib_case347.cfm

[23] Source: http://www.justice.gov/criminal/cybercrime/press-releases/2005/perezIndict.htm

[24] Source: http://www.bbc.com/news/technology-24868420

[25] Source: http://www.courthousenews.com/2010/02/18/24789.htm

[26] Source: http://www.insideprivacy.com/united-states/litigation/federal-law-does-not-preempt-state-telephone-privacy-statute/

[27] Source: http://www.rbs2.com/dprivacy.pdf

[28] Source: http://www.rcfp.org/rcfp/orders/docs/RECORDING.pdf

[29] Source: https://www.rcfp.org/first-amendment-handbook/introduction-recording-state-hidden-camera-statutes

[30] Source: https://www.law.cornell.edu/uscode/text/18/2510

[31] Source:http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1708-1725

[32] Source: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0800-0899/0810/Sections/0810.145.html

[33] Source: http://legislature.maine.gov/statutes/17-A/title17-Asec511.html

[34] Source: http://www.legislature.mi.gov/(S(rcgtapwcdas2bmwu3a4vstaf))/mileg.aspx?page=getObject&objectName=mcl-750-539d

[35] Source: https://www.whitehouse.gov/1600/state-and-local-government

[36] Source: https://www.law.cornell.edu/constitution/articlevi

[37] Source: https://www.law.cornell.edu/wex/preemption

[38] Source: http://128.197.26.3/law/central/jd/organizations/journals/bulr/volume87n5/documents/DILLER_v2.pdf

[39] Source: http://www.insideprivacy.com/united-states/litigation/federal-law-does-not-preempt-state-telephone-privacy-statute/

[40] Source: http://www.diffen.com/difference/Federal_Law_vs_State_Law

Resources_New_AllBooks_350

EXTENSIVE LIBRARY of RESOURCES

McCann continually engages the important topics that are most relevant to our clients.  McCann publications provide insight and information to our clients with our white papers, guides, and case studies.  All publications are available in iTunes, Paperback, or FREE digital download.  

VIEW THE RESOURCES LIBRARY