Taping Telephone Calls, Reading E-mail, and Wiretapping

Privacy laws have been in the news lately. From new law protecting privacy of medical records and financial privacy, the focus has been clear - society wants to protect privacy. Even older laws, such as federal and state criminal law have been enforced more than ever. If you want to learn more about these laws, see the outlines below. Other states' laws may apply as well. Some are much more restrictive. The unmistakable conclusion should be to discuss your plan with your lawyer before engaging in any of the listed activities.

Outline of the Electronic Communications Privacy Act (ECPA) andn the Tennessee Wiretapping and Electronic Surveillance Act (As of 2004)

I. ECPA's Purpose:

• Enacted in 1986 to update the Federal Wiretap Act of 1968, which did not address the type of technology available today.
• Intends to prohibit the intentional interception, disclosure, or unauthorized access to the private electronic communications of others.
  • An example of an intentional interception would be monitoring your spouse's conversation within an internet chat room or placing a wire tap on the telephone to listen to a conversation.
  • An example of unauthorized access to a private electronic communications would be accessing your spouse's private email account and reading the stored messages.

II. ECPA's Applicability

• There must be a justifiable expectation of privacy accompanying the communication in order for there to be a violation of the ECPA.
  • For example, an email account carries with it a justifiable expectation of privacy, whereas posting a note on a bulletin board does not.
• The ECPA only prohibits unauthorized interception, disclosure, or use.
  • If you have received the consent of your spouse to access his or her email account, for example, this would not be a violation of the ECPA because your use is not unauthorized.
    • The consent may be either express or implied.
    • However, if a password, for example, is given to you for a specific purpose, you may not use the password for any other purpose because this would be a violation of the ECPA.
  • If the communication is obtained unintentionally, you may use the information in any way you please.

III. Communications covered:

• Traditional telephone wiretaps
• Cordless telephone interceptions
• Electronic messages
• Voicemail systems
• Pagers
• Chat logs
• Web-streaming video
• Voice over IP
• Recording or videotaping of private face-to-face communications
• This is not an exhaustive list but serves to illustrate the types of communications that are protected by the ECPA

IV. Civil Penalties for violating the ECPA:

• Actual damages
• Statutory damages
• Punitive damages
• Reasonable attorney's fees of the other party and other litigation costs reasonably incurred
• Injunctive relief
• Imprisonment
  • The duration of imprisonment varies depending on the nature of the violation.
• State law may impose additional penalties

V. Tennessee Wiretapping and Electronic Surveillance Act

• Similar to the ECPA as in it imposes penalties for intentionally intercepting, disclosing or accessing without authorization the private communications of another individual.
• Attempting to, endeavoring to, or procuring another person to intercept or access communications is also a violation of the Act.
• A person in violation of the Act commits a Class D felony.
• A person injured may recover in a civil action:
  • The greater of:
    • The sum of the actual damages, including any damages to personal or business reputation or relationships, suffered by the individual and any profits made by the violator as a result of the violations; or
    • Statutory damages of one hundred dollars ($100) per day for each day of violation or ten thousand dollars ($10,000), whichever is greater; and
  • Punitive damages; and
  • Reasonable attorney's fees and other litigation costs incurred
  • The injured individual may also seek injunctive relief to restrain such violation along with the action for damages

VI Protecting Your Privacy

• Install firewall software, password protection and encryption software to protect your privacy while you are using your computer and the internet.
• Because the issue is complicated and the penalties can be severe, it is always worthwhile to contact an attorney before taking any action that may violate the ECPA.