What can the average American person take away from the Presidential controversy about "wiretapping"? Interestingly, the Republican party said when President Trump tweeted about being "wiretapped," it was purposefully put in quotes to mean surveillance in general. As a technology attorney, I began to think about what wiretapping means in the year 2017, and how may it relate to helping business clients.
Politics aside, are we all not surveilled electronically? It is widely known that Edward Snowden exposed the NSA surveillance program that targeted phone calls and Internet transmissions of American citizens. The latest exposure was the documentation detailing the methods of the CIA for conducting surveillance though microphones, cameras and other devices connected to the Internet. After all, may business phone lines are IP based, meaning they are connected through the Internet.
In a divorce between spouses, it can be common for one spouse to monitor or record the conversations of a suspected cheater. In a business transaction, a business may wish to record the communications between its customers or its suppliers for a variety of reasons. The difference between these two scenarios is that the former is a situation where a third-party is effectively wiretapping two unwitting parties who are unaware that the conversation between them is being monitored or recorded. The latter scenario describes a situation where at least one party to a conversation is aware that the conversation is being recorded.
In the above situations, both Federal and State laws apply. These are generally labeled as eavesdropping statutes. Such laws may impose both criminal charges and civil liability if the laws are violated. As a general rule, it is illegal for a third party to monitor or record conversations where the parties to the conversation are not aware to the surveillance. This holds true for individuals as spouses, or business associates. However, there may be exceptions beyond the scope of this article. For those wishing to record their own conversations between another party, states differ on which parties must be aware of any recording.
All party states require that all parties to the conversation be aware that monitoring or recording may be happening. Accordingly, many businesses choose to have an automated response to a caller that "all calls may be monitored or recorded for quality (or other) purposes." Single party states only require that one party to the conversation be aware that the conversation is being recorded.
Although the average person may not think much about how wiretapping relates to them, when deciding to listen in or record a conversation, it can be helpful to consult an attorney familiar with these matters in the state(s) where the recording will occur. Not only could the laws affect whether the recording could be admissible in court, they could also determine whether any crimes or civil liabilities could be imposed on the one choosing to monitor or record others.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
