Summary
This report provides an overview of federal law
governing wiretapping and electronic eavesdropping under the Electronic Communications
Privacy Act (ECPA). It also appends citations to state law in the
area and the text of ECPA.
It is a federal crime to wiretap or to use a machine
to capture the communications of others without court approval,
unless one of the parties has given his prior consent. See listing
by state below.
It is likewise a federal crime to use or disclose any
information acquired by illegal wiretapping or electronic
eavesdropping.
Violations can result in imprisonment for not more
than five years; fines up to $250,000 (up to $500,000 for
organizations); civil liability for damages, attorneys’ fees and
possibly punitive damages; disciplinary action against any attorneys
involved; and suppression of any derivative evidence. Congress has
created separate, but comparable, protective schemes for electronic
communications (e.g.,
email) and against the surreptitious use of telephone
call monitoring practices such as pen registers and trap and trace
devices.
Each of these protective schemes comes with a
procedural mechanism to afford limited law enforcement access to
private communications and communications records under conditions
consistent with the dictates of the Fourth Amendment. The government
has been given narrowly confined authority to engage in electronic
surveillance, conduct physical searches, and install and use pen
registers and trap and trace devices for law enforcement purposes
under ECPA and for purposes of foreign intelligence gathering under
the Foreign Intelligence Surveillance Act.
This report appears as a part of a larger piece,
which includes a discussion of the Foreign Intelligence Surveillance
Act and is entitled CRS Report 98-326,
Privacy: An Overview of
Federal Statutes Governing Wiretapping and Electronic
Eavesdropping,
by Gina Stevens and Charles Doyle. Each of the two is available in
an abridged form without footnotes, quotations, attributions of
authority, or appendices, i.e., CRS Report R41734,
Privacy: An Abridged
Overview of the Electronic Communications Privacy Act,
by Charles Doyle, and CRS Report 98- 327,
Privacy: An Abbreviated Outline of Federal Statutes
Governing Wiretapping and Electronic
Eavesdropping,
by Gina Stevens and Charles Doyle.
"One-Party"
Consent
38
out of 50 states, including the District of Columbia, have a
"one-party" rule that requires the consent of at least one person in
a conversation before it can be surreptitiously recorded. This means
that as long as one person (for instance, the recorder) consents to
the recording, he or she can record the conversation without
informing the other parties he or she is doing so.
12
states forbid the recording of private conversations without the
consent of all parties.
They are:
California
Connecticut
Florida
Illinois
Maryland
Massachusetts
Michigan,
Montana
Nevada
New Hampshire
Pennsylvania
Washington
