Recording Law :: Modem Spy

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Federal Law
The federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510 et seq., prohibits the willful interception of telephone communication by means of any electronic, mechanical, or other device without an applicable exemption. There are two principal exceptions:
Federal Exceptions

Consent: In the absence of more restrictive state law, it is permissible to intercept and record a telephone conversation if one or both of the parties to the call consents. Consent means authorization by only one participant in the call; single-party consent is provided for by specific statutory exemption under federal law. 18 U.S.C. Sec. 2511(2)(d).

"Business telephone" exception

The "business telephone" exception, which generally allows monitoring of calls and taping over an extension phone which is both provided to a subscriber in the ordinary course of a telephone company's business and is being used by that subscriber in the ordinary course of its business. This provision generally permits businesses to monitor the conversations of their employees, including personal conversations.

Penalties: The federal statutes provide criminal penalties for unlawful interception of telephone conversations, including up to five years' imprisonment or a maximum of $10,000 in fines. They also allow for civil remedies, by which private parties are entitled to recover actual and punitive damages, together with fees and costs.

Recording and FGCC Rules

The FCC Regulations require telephone carriers to file tariffs with the Commission to the effect that: (1) adequate notice be given to all parties that their conversation is being recorded; (2) that such notice be given by the use of an automatic tone warning device; and (3) that the tone warning device be furnished, installed and maintained by the telephone company along specified technical guidelines. 11 FCC 1033, 1050, 12 FCC 1005, 1008 (1947). These regulations are directed toward the telephone carriers, and do not make recording a criminal offense. However, a person who fails to use the "beep" tone as required may have his telephone service terminated.

Evidentiary Issues

With the expectation that the recordings will be useful as evidence. Such recordings are subject to significant barriers to use as evidence. First, if made in violation of either federal or state law, the recordings will almost certainly be inadmissi- ble. Second, even if lawfully recorded, the tapes will be exempt from the hearsay rule and will not, in most jurisdictions, be usable for impeachment. Anyone contemplating an evidentiary use of surreptitious recordings should consult with an attorney prior to making the recording.

See also:
Table of contents.
Restrictions on telephone solicitation
Excerpts from FCC-92-443
Excerpts from FCC-95-310