Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping

This report provides an overview of federal law governing wiretapping and electronic eavesdropping. It also surveys state law in the area and contains a bibliography of legal commentary. 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 their prior consent. 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 5 years fines up to 250,000 up to 500,000 for organizations in civil liability for damages, attorneys fees and possibly punitive damages in disciplinary action against any attorneys involved and in suppression of any derivative evidence. Congress has created separate but comparable protective schemes for electronic mail e-mail 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 even more narrowly confined authority to engage in wiretapping and electronic eavesdropping in the name of foreign intelligence gathering in the Foreign Intelligence Surveillance Act.