Wiretapping is the connection of a recording device to a communications circuit to monitor conversations. Electronic or wiretapping surveillance statutes vary by state.
Recording conversations is not illegal if the parties are aware and have allowed the interception of the identified communication. On the other hand, certain exceptions apply to electronic surveillance. These exceptions are available for the providers of the electronic or wire communication services such as the telephone companies and law enforcement agencies involved in criminal investigative activities.
Wiretapping is considered illegal; if a person unlawfully procures or intercepts a wire, electronic or oral communication; uses the wire, electronic or oral communication content illegally; unlawfully discloses the communication content; possesses, sells or advertises (unlawfully) an “electronic, mechanical, or other devices” wherein its primary design renders it useful for the interception of surreptitious wire, electronic or oral communications.
The issue concerning the use of recording devices in conversations can be quite tricky when the law is involved. Governments at the federal and state levels have criminal laws of their own, and they can apply them to wiretapping cases.
The federal wiretapping law is applicable when a conversation is recorded by someone in “wire,” electronic or oral form. A wire communication, therefore, can be defined as aural transfer aided by the use of a cable, wire, or any other connection that allows more than one speaker to effect communication between a point of origin and another point of reception.
Federal law, just like many other state laws, requires the consent of one party to record wire or telephone conversations legally. These “one-party consent” laws have made it possible for any participant in a conversation to record even without acquiring the permission of the other party. Federal law requires the person who is not part of the conversation to obtain a search warrant before recording a conversation or otherwise seek the permission of all the participants.
The disclosure or use of information through an illegal recording device or wiretapping is unlawful. If found guilty of this violation, criminal punishment is five years imprisonment or 250, 000 dollars fine, or both. Also, the plaintiff may also demand attorney fees.
Obtaining communication evidence in violation of the statutes is considered illegal, and anyone could face a lawsuit for doing so.
In general, conversation-recording is legal in situations wherein all participants are aware and gave consent, but some state laws only require the approval of one party. For instance, if there are two different parties in a phone conversation, and one person comes from a state wherein they allow ‘one-party consent,’ but the other person comes from a state where all parties’ consent must be sought before wiretapping is considered legal, then the two laws would conflict. This kind of situation shows complications in the application of federal wiretapping laws.