Wiretapping Act

The Omnibus Crime Control and Safe Streets Act of 1968, more commonly known as the Federal Wiretapping Act, prohibits employers from intentionally intercepting, or getting others to intercept, any wire, oral, or electronic communication which takes place on the premises of any business or commercial establishment.

Key Definitions

Intercept means the acquisition of the contents of any wire, electronic, or oral communication through the use of an electronic or mechanical device.

Wire communication refers to any aural transfer of communications through the use of wire, cable, or other similar connection between the point of origin and the point of reception.

Oral communication refers to any oral communication offered by a person expecting that it will not be intercepted.

Electronic communication means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted by wire, radio, electromagnetic, photo-electronic, or photo-optical system.  It does not include: wire or oral communication, communication made through a tone-only paging device, or communication from a tracking device.

Coverage

The Wiretapping Act applies to any employers who have operations of business which affect interstate or foreign commerce.  Exempt are businesses which operate only within the confines of one state.

Exceptions

Electronic monitoring of employee work performance (e.g., monitoring telephone conversations) may be utilized under certain circumstances.

• One party consents to the wiretap.
  
  
• The conversation is monitored through the use of a telephone extension in the ordinary course of business.
  
  
• A communication service provider monitors the check for the quality of the transmission.
  
  
• A court order has been obtained.

Electronic Communications Privacy Act Of 1986 (ECPA) 

The ECPA amended the Wiretapping Act to address the interception of e-mail communications.  The 1986 statute expanded pre-existing prohibitions on the unauthorized interception of wire and oral communications to encompass electronic communications as well.  In general, the statute criminalizes the intentional interception of another’s electronic communication, where the interception occurs on the premises of a business affecting interstate commerce.

The ECPA follows the exceptions of the Wiretapping Act, but adds the following.

The statute does not prohibit the interception of messages by the e-mail service provider, where the interception is necessary to provide the e-mail service, or to protect the property rights of the provider.  This exception is understood to mean that messages sent on completely “internal” company electronic mail systems are either not covered by the statute, or else have fewer protections than messages sent on more public systems.

 

 

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