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Copr. (C) West 2000 No Claim to Orig. U.S. Govt. Works 18 USCA s 2511 18 U.S.C.A. s 2511 <YELLOW FLAG> TEXT UNITED STATES CODE ANNOTATED TITLE 18. CRIMES AND CRIMINAL PROCEDURE PART I--CRIMES CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS Copr. (C) West Group 2000. No claim to orig. U.S. Govt. Works Current through P.L. 106-170, approved 12-17-99 s 2511. Interception and disclosure of wire, oral, or electronic communications prohibited TEXT (1) (1) Except as otherwise specifically provided in this chapter any person who-TEXT (1) (a) (a) intentionally intercepts, endeavors to intercept, or procures any other pe rson to intercept or endeavor to intercept, any wire, oral, or electronic communication; TEXT (1) (b) (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when-TEXT (1) (b) (i) (i) such device is affixed to, or otherwise transmits a signal through, a wir e, cable, or other like connection used in wire communication; or TEXT (1) (b) (ii) (ii) such device transmits communications by radio, or interferes with the tr ansmission of such communication; or TEXT (1) (b) (iii) (iii) such person knows, or has reason to know, that such device or any compo nent thereof has been sent through the mail or transported in interstate or foreign commerce; or TEXT (1) (b) (iv) (iv) such use or endeavor to use (A) takes place on the premises of any busin ess or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operatio ns of which affect interstate or foreign commerce; or TEXT (1) (b) (v) (v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States; TEXT (1) (c) (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtaine d through the interception of a wire, oral, or electronic communication in violation of this subsection; TEXT (1) (d) (d) intentionally uses, or endeavors to use, the contents of any wire, oral,

or electronic communication, knowing or having reason to know that the information was obtained through the interception of a w ire, oral, or electronic communication in violation of this subsection; or TEXT (1) (e) (e) (i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by sections 2511(2)(a)(ii), 2511( 2)(b) to (c), 2511(2)(e), 2516, and 2518 of this chapter, (ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, (iii) having obtained or received t he information in connection with a criminal investigation, and (iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation, TEXT shall be punished as provided in subsection (4) or shall be subject to suit as p rovided in subsection (5). TEXT (2) (a) (i) (2)(a)(i) It shall not be unlawful under this chapter for an operator of a swit chboard, or on officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal c ourse of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service t o the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks. TEXT (2) (a) (ii) (ii) Notwithstanding any other law, providers of wire or electronic communicati on service, their officers, employees, and agents,

landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to co nduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provid er, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with-TEXT (2) (a) (ii) (A) (A) a court order directing such assistance signed by the authorizing judge, o r TEXT (2) (a) (ii) (B) (B) a certification in writing by a person specified in section 2518(7) of thi s title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory req uirements have been met, and that the specified assistance is required, TEXT setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. N o provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other s pecified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception o r surveillance with respect to which the person has been furnished a court order or certification under this chapter, except as may otherwise be required by legal process and then only after prior notification to the Attorney General or to the principal prosec uting attorney of a State or any political subdivision of a State, as may be appropriate. Any such disclosure, shall rende r such person liable for the civil damages provided for in section 2520. No cause of action shall lie in any court against any prov ider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified pers on for providing information, facilities, or assistance in accordance with the terms of a court order or certification under this chapter. TEXT (2) (b) (b) It shall not be unlawful under this chapter for an officer, employee, or ag ent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsib ilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a w ire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information thereb y obtained. TEXT (2) (c) (c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the p arties to the communication has given prior consent to such interception. TEXT (2) (d) (d) It shall not be unlawful under this chapter for a person not acting under c olor of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or wh ere one of the parties to the communication has

given prior consent to such interception unless such communication is intercepte d for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State. TEXT (2) (e) (e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal c ourse of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act. TEXT (2) (f) (f) Nothing contained in this chapter or chapter 121, or section 705 of the Com munications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence informat ion from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applic able Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as d efined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter and the Foreign Intelli gence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of s uch Act, and the interception of domestic wire and oral communications may be conducted. TEXT (2) (g) (g) It shall not be unlawful under this chapter or chapter 121 of this title fo r any person-TEXT (2) (g) (i) (i) to intercept or access an electronic communication made through an electro nic communication system that is configured so that such electronic communication is readily accessible to the general public; TEXT (2) (g) (ii) (ii) to intercept any radio communication which is transmitted-TEXT (2) (g) (ii) (I) (I) by any station for the use of the general public, or that relates to ship s, aircraft, vehicles, or persons in distress; TEXT (2) (g) (ii) (II) (II) by any governmental, law enforcement, civil defense, private land mobile , or public safety communications system, including police and fire, readily accessible to the general public; TEXT (2) (g) (ii) (III) (III) by a station operating on an authorized frequency within the bands allo cated to the amateur, citizens band, or general mobile radio services; or TEXT (2) (g) (ii) (IV) (IV) by any marine or aeronautical communications system; TEXT (2) (g) (iii)

(iii) to engage in any conduct which-TEXT (2) (g) (iii) (I) (I) is prohibited by section 633 of the Communications Act of 1934; or TEXT (2) (g) (iii) (II) (II) is excepted from the application of section 705(a) of the Communications Act of 1934 by section 705(b) of that Act; TEXT (2) (g) (iv) (iv) to intercept any wire or electronic communication the transmission of whi ch is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to i dentify the source of such interference; or TEXT (2) (g) (v) (v) for other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not scrambled or encrypted. TEXT (2) (h) (h) It shall not be unlawful under this chapter-TEXT (2) (h) (i) (i) to use a pen register or a trap and trace device (as those terms are defin ed for the purposes of chapter 206 (relating to pen registers and trap and trace devices) of this title); or TEXT (2) (h) (ii) (ii) for a provider of electronic communication service to record the fact tha t a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing serv ice toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive u se of such service. TEXT (3) (a) (3)(a) Except as provided in paragraph (b) of this subsection, a person or enti ty providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (ot her than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other tha n an addressee or intended recipient of such communication or an agent of such addressee or intended recipient. TEXT (3) (b) (b) A person or entity providing electronic communication service to the public may divulge the contents of any such communication-TEXT (3) (b) (i) (i) as otherwise authorized in section 2511(2)(a) or 2517 of this title; TEXT (3) (b) (ii) (ii) with the lawful consent of the originator or any addressee or intended re cipient of such communication; TEXT (3) (b) (iii) (iii) to a person employed or authorized, or whose facilities are used, to for ward such communication to its destination; or TEXT (3) (b) (iv) (iv) which were inadvertently obtained by the service provider and which appe ar to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency. TEXT (4) (a) (4)(a) Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both. TEXT (4) (b)

(b) If the offense is a first offense under paragraph (a) of this subsection an d is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense under paragraph (a) is a radio communication that i s not scrambled, encrypted, or transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of such communication, then-TEXT (4) (b) (i) (i) if the communication is not the radio portion of a cellular telephone comm unication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a publi c land mobile radio service communication or a paging service communication, and the conduct is not that described in subsectio n (5), the offender shall be fined under this title or imprisoned not more than one year, or both; and TEXT (4) (b) (ii) (ii) if the communication is the radio portion of a cellular telephone commun ication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public l and mobile radio service communication or a paging service communication, the offender shall be fined under this title. TEXT (4) (c) (c) Conduct otherwise an offense under this subsection that consists of or rela tes to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted-TEXT (4) (c) (i) (i) to a broadcasting station for purposes of retransmission to the general pu blic; or TEXT (4) (c) (ii) (ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls, TEXT is not an offense under this subsection unless the conduct is for the purposes o f direct or indirect commercial advantage or private financial gain.

TEXT (5) (a) (i) (5)(a)(i) If the communication is-TEXT (5) (a) (i) (A) (A) a private satellite video communication that is not scrambled or encrypted and the conduct in violation of this chapter is the private viewing of that communication and is not for a tortious or illegal p urpose or for purposes of direct or indirect commercial advantage or private commercial gain; or TEXT (5) (a) (i) (B) (B) a radio communication that is transmitted on frequencies allocated under s ubpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of this chapter is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or pr ivate commercial gain, TEXT then the person who engages in such conduct shall be subject to suit by the Fede ral Government in a court of competent jurisdiction. TEXT (5) (a) (ii) (ii) In an action under this subsection-TEXT (5) (a) (ii) (A) (A) if the violation of this chapter is a first offense for the person under p aragraph (a) of subsection (4) and such person has not been found liable in a civil action under section 2520 of this title, the Fe deral Government shall be entitled to appropriate injunctive relief; and TEXT (5) (a) (ii) (B) (B) if the violation of this chapter is a second or subsequent offense under p aragraph (a) of subsection (4) or such person has been found liable in any prior civil action under section 2520, the person shall be subject to a mandatory $500 civil fine. TEXT (5) (b) (b) The court may use any means within its authority to enforce an injunction i ssued under paragraph (ii)(A), and shall impose a civil fine of not less than $500 for each violation of such an injunction. CREDIT CREDIT(S) 1970 Main Volume (Added Pub.L. 90-351, Title III, s 802, June 19, 1968, 82 Stat. 213.) 2000 Pocket Part (As amended Pub.L. 91-358, Title II, s 211(a), July 29, 1970, 84 Stat. 654; Pub .L. 95-511, Title II, s 201(a) to (c), Oct. 25, 1978, 92 Stat. 1796, 1797; Pub.L. 98-549, s 6(b)(2), Oct. 30, 1984, 98 Stat. 280 4; Pub.L. 99-508, Title I, s 101(b), (c)(1), (5), (6), (d), (f), 102, Oct. 21, 1986, 100 Stat. 1849 to 1853; Pub.L. 103-322, Titl e XXXII, s 320901, Title XXXIII, s 330016(1)(G), Sept. 13, 1994, 108 Stat. 2123, 2147; Pub.L. 103-414, Title II, ss 202(b), 204, 205, Oct. 25, 1994, 108 Stat. 4290, 4291; Pub.L. 104-294, Title VI, s 604(b)(42), Oct. 11, 1996, 110 Stat. 3509.) <General Materials (GM) - References, Annotations, or Tables> HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports 1968 Acts. Senate Report No. 1097, see 1968 U.S. Code Cong. and Adm. News, p. 2 112. 1978 Acts. Senate Report Nos. 95-604(Parts I and II), 95-701, and House Confere nce Report No. 95-1720, see 1978 U.S. Code Cong. and Adm. News, p. 3904. 1984 Acts. House Report No. 98-934 and Statements by Legislative Leaders, see 1 984 U.S. Code Cong. and Adm. News, p. 4655. 1986 Acts. Senate Report No. 99-541, see 1986 U.S. Code Cong. and Adm. News, p. 3555. 1994 Acts. House Report Nos. 103-324 and 103-489, and House Conference Report N o. 103-711, see 1994 U.S. Code Cong. and Adm. News, p. 1801. House Report No. 103-827, see 1994 U.S. Code Cong. and Adm. News, p. 3489. 1996 Acts. House Report No. 104-788, see 1996 U.S. Code Cong. and Adm. News, p. 4021. References in Text Chapter 5 of title 47 of the United States Code, referred to in par. (2)(b), i s chapter 5 of Title 47, Telegraphs, Telephones, and Radiotelegraphs. Such chapter 5, set out as s 151 et seq. of Title 47, is th e Communications Act of 1934.

Sections 705 and 706 of the Communications Act of 1934, referred to in par. (2 )(e), (f), and (g), are classified to sections 605 and 606 of Title 47, Telegraphs, Telephones, and Radiotelegraphs, respectively. The Foreign Intelligence Surveillance Act of 1978, referred to in pars. (2)(e) and (f), is Pub.L. 95-511, Oct. 25, 1978, 92 Stat. 1783, which is classified principally to chapter 36 (section 1801 et seq.) of Ti tle 50, War and National Defense. Section 101 of the Foreign Intelligence Surveillance Act of 1978, referred to in pars. (2)(a)(i i), (e), and (f), is classified to section 1801 of Title 50. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of Title 50 and Tables. Section 633 of the Communications Act of 1934, referred to in par. (2)(g), is c lassified to section 553 of Title 47, Telegraphs, Telephones, and Radiotelegraphs. Amendments 1996 Amendments. Par. (1)(e)(i). Pub.L. 104-294, s 604(b)(42), substituted "s ections 2511(2)(a)(ii), 2511(2)(b) to (c), 2511(2)(e), 2516, and 2518 of this chapter" for "sections 2511(2)(A)(ii), 2511(b ) to (c), 2511(e), 2516, and 2518 of this subchapter." 1994 Amendments. Par. (1)(e). Pub.L. 103-322, s 320901, added par. (1)(e). Par. (2)(a)(i). Pub.L. 103-414, s 205, added reference to the transmission of an electronic communication. Par. (4)(b). Pub.L. 103-414, s 204, added provisions relating to radio communi cations which are not transmitted using modulation techniques whose essential parameters have been withheld from the public. Par. (4)(b)(i). Pub.L. 103-414, s 202(b)(1), added provision relating to a cor dless telephone communication. Par. (4)(b)(ii). Pub.L. 103-414, s 202(b)(2), added provision relating to a co rdless telephone communication. Pub.L. 103-322, s 330016(1)(G), substituted "under this title" for "not more th an $500". 1986 Amendments. Catchline. Pub.L. 99-508, s 101(c)(1)(A), substituted "wire, oral, or electronic communications" for "wire or oral communications". Par. (1). Pub.L. 99-508, s 101(d)(1), substituted "shall be punished as provid ed in subsection (4) or shall be subject to suit as provided in subsection (5)" for "shall be fined not more than $10,000 or impriso ned not more than five years, or both". Par. (1)(a). Pub.L. 99-508, s 101(c)(1)(A), substituted "wire, oral, or electr onic communication" for "wire or oral communication".

Par. (1)(a). Pub.L. 99-508, s 101(f)(1), substituted "intentionally" for "will fully". Par. (1)(b). Pub.L. 99-508, s 101(f)(1), substituted "intentionally" for "wil lfully". Par. (1)(c). Pub.L. 99-508, s 101(c)(1)(A), substituted "wire, oral, or electr onic communication" for "wire or oral communication". Par. (1)(c). Pub.L. 99-508, s 101(f)(1), substituted "intentionally" for "wil lfully". Par. (1)(d). Pub.L. 99-508, s 101(c)(1)(A), substituted "wire, oral, or electr onic communication" for "wire or oral communication". Par. (1)(d). Pub.L. 99-508, s 101(f)(1), substituted "intentionally" for "wil lfully". Par. (2)(a)(i). Pub.L. 99-508, s 101(c)(5), substituted "agent of a provider o f wire or electronic communication service" for "agent of any communication common carrier" and "property of the provider of tha t service, except that a provider of wire communication service to the public shall" for "property of the carrier of such communication: Provided, that said communication common carriers shall". Par. (2)(a)(ii). Pub.L. 99-508, s 101(b)(1), substituted "Any such disclosure shall" for "Any violation of this subparagraph by a communication common carrier or an officer, employee, or agent thereof, shall", "render such person liable" for "render the carrier liable", and "the terms of a court order or certification under this chapter" fo r "the terms of an order or certification under this subparagraph". Par. (2)(a)(ii). Pub.L. 99-508, s 101(c)(6), substituted "providers of wire or electronic communication service" for

"communication common carriers", "provider of wire or electronic communication s ervice" for "communication common carrier" wherever appearing in text, and "if such provider" for "if the common carrier". Par. (2)(a)(ii). Pub.L. 99-508, s 101(c)(1)(A), substituted "wire, oral, or el ectronic communications" for "wire or oral communications". Par. (2)(b). Pub.L. 99-508, s 101(c)(1)(B), substituted "wire or electronic co mmunication" for "wire communication". Par. (2)(c). Pub.L. 99-508, s 101(c)(1)(A), substituted "wire, oral, or electr onic communication" for "wire or oral communication". Par. (2)(d). Pub.L. 99-508, s 101(b)(2), substituted "of any State." for "of a ny State or for the purpose of committing any other injurious act.". Par. (2)(d). Pub.L. 99-508, s 101(c)(1)(A), substituted "wire, oral, or electr onic communication" for "wire or oral communication". Par. (2)(f). Pub.L. 99-508, s 101(b)(3), substituted "contained in this chapte r or chapter 121, or section" for "contained in this chapter, or section", "procedures in this chapter or chapter 121 and the" f or "procedures in this chapter and the", and "foreign communications, or foreign intelligence activities conducted in accorda nce with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means" for "foreign comm unications by a means". Par. (2)(f). Pub.L. 99-508, s 101(c)(1)(A), substituted "wire, oral, or electr onic communications" for "wire or oral communications". Par. (2)(g), (h). Pub.L. 99-508, s 101(b)(4), added subpars. (g) and (h). Par. (3). Pub.L. 99-508, s 102, added par. (3). Pars. (4), (5). Pub.L. 99-508, s 101(d)(2), added pars. (4) and (5). 1984 Amendments. Par. (2)(e). Pub.L. 98-549, s 6(b)(2)(A), substituted "secti on 705 or 706" for "section 605 or 606". Par. (2)(f). Pub.L. 98-549, s 6(b)(2)(B), substituted "section 705" for "sect ion 605". 1978 Amendments. Par. (2)(a)(ii). Pub.L. 95-511, s 201(a), substituted provisio ns authorizing communication common carriers etc., to provide information to designated persons, prohibiting disclosure of intercep ted information, and rendering violators civilly liable for provision exempting communication common carriers from criminality fo r giving information to designated officers. Par. (2)(e). Pub.L. 95-511, s 201(b), added par. (2)(e). Par. (2)(f). Pub.L. 95-511, s 201(b), added par. (2)(f).

Par. (3). Pub.L. 95-511, s 201(c), struck out par. (3) which provided that noth ing in this chapter or section 605 of Title 47 limited the President's constitutional power to gather necessary intelligence to protect the national security and stated the conditions necessary for the reception into evidence and disclosure of communica tions intercepted by the President. 1970 Amendments. Subsec. (2)(a)(i). Pub.L. 91-358, s 211(a)(1), designated exis ting provisions as subsec. (2)(a)(i). Subsec. (2)(a)(ii). Pub.L. 91-358, s 211(a)(2), added subsec. (2)(a)(ii). Effective and Applicability Provisions 1996 Acts. Amendment by section 604 of Pub.L. 104-294 effective Sept. 13, 1994, see section 604(d) of Pub.L. 104-294, set out as a note under section 13 of this title. 1986 Acts. Except as otherwise provided in section 111 of Pub.L. 99-508, amendm ent by Pub.L. 99-508 effective 90 days after Oct. 21, 1986, see section 111 of Pub.L. 99-508 set out as a note under section 2510 of this title. 1984 Acts. Amendment by Pub.L. 98-549 to take effect 60 days after Oct. 30, 198 4, except where otherwise expressly provided, see section 9(a) of Pub.L. 98- 549, set out as a note under section 521 of Title 47, Telegraphs, Telephones and Radiotelegraphs. 1978 Acts. Amendment by Pub.L. 95-511 effective Oct. 25, 1978, except as specif ically provided, see section 301 of Pub.L. 95-511, set out as an Effective Date note under section 1801 of Title 50, War and Nation al Defense. 1970 Acts. Section 901(a) of Pub.L. 91-358 provided in part that the amendment of this section by Pub.L. 91-358 shall take effect

on the first day of the seventh calendar month which begins after July 29, 1970. FEDERAL SENTENCING GUIDELINES See Federal Sentencing Guidelines ss 2B5.3, 2H3.1, 18 USCA. AMERICAN LAW REPORTS Applicability, in civil action, of provisions of Omnibus Crime Control and Safe Streets Act of 1968, prohibiting interception of communications (18 U.S.C.A. s 2511(1)), to interceptions by spouse, or spouse's agent, of conversations of other spouse. 139 ALR Fed 517. Applicability of provisions of Omnibus Crime Control and Safe Streets Act of 196 8 prohibiting interception of wire or oral communications (18 USCA s 2511(1)) to interception by spouse, or spouse's agent, of conversations of other spouse in marital home. 55 ALR Fed 936. Application to extension telephones of Title III of the Omnibus Crime Control an d Safe Streets Act of 1968 (18 USCA ss 2510 et seq.), pertaining to interception of wire communications. 58 ALR Fed 594. Construction and application of 18 USCA s 2511(1)(a) and (b), providing criminal penalty for intercepting, endeavoring to intercept, or procuring another to intercept wire, oral, or electronic communica tion. 122 ALR Fed 597. Interception of telecommunication by or with consent of party as exception, unde r 18 USCA s 2511(2)(c) and (d), to federal proscription of such interceptions. 67 ALR Fed 429. Propriety of monitoring of telephone calls to or from prison inmates under Title III of Omnibus Control and Safe Streets Act (18 USCA ss 2510 et seq.) prohibiting judicially unauthorized interception of wire o r oral communications. 61 ALR Fed 825. Who may apply or authorize application for order to intercept wire or oral commu nications under Title III of Omnibus Crime Control and Safe Streets Act of 1968 (18 USCA secs. 2510 et seq.). 64 ALR Fed 115. LIBRARY REFERENCES Administrative Law Exemptions to Freedom of Information Act disclosure, see Koch s 11.6. American Digest System Telecommunications k491, 493, 494. Encyclopedias Telegraphs, Telephones, Searches and Seizures, 350. Telecommunications, 74 Wiretapping, 29 Am Jur Forms Telecommunications, 23 Am Jur Pl & Pr Forms (Rev ed), Forms 1145, 146, 148, 149 . Radio, and Television, see C.J.S. ss 122, 252, 287, 288. 68 Am Jur 2d ss 250, 255, 256, 326, 342, 345, 347, 348, Am Jur 2d ss 209, 212, 214-217. Proof of Facts, p. 591.

Law Review and Journal Commentaries Attorneys, tape recorders and perfidy. Stanley S. Arkin, 211 N.Y.L.J. 3 (April 14, 1994). Avoiding prosecutions. Thomas F. Liotti, 67 N.Y.St.B.J. 49 (Feb. 1995). Commercial Eavesdropping: A catch 22. Kirk W. Munroe, 63 Fla.B.J. 11 (Mar. 198 9). Communications assistance for Law Enforcement Act and protection of cordless tel ephone communications: Use of technology as a guide to privacy. 44 Clev.St.L.Rev. 99 (1996). Cordless telephones and the Fourth Amendment. 72 Ky.L.J. 1167. Domestic relations and eighth circuit court of appeals. Robert E. Oliphant and Susan Elizabeth Oliphant, 16 Wm.Mitchell L.Rev. 645 (1990). Eavesdropping reform: The legality of roving surveillance. Michael Goldsmith, 1987 U.Ill.L.Rev. 401 (1987). E-mail and voice mail: Employee privacy and the federal wiretap statute. 44 A m.U.L.Rev. 219 (1994). In God we trust; all others who enter this store are subject to surveillance. 48 Fed.Comm.L.J. 187 (1995). Interspousal wiretapping: should state law or federal statute govern? Note, 1 0 Hamline L.Rev. 255 (1987). Is your spouse taping your telephone calls?: Title III and interspousal electro nic surveillance. Scott J. Glick, 41 Cath.U.L.Rev. 845 (1992). Peek and spy: A proposal for federal regulation of electronic monitoring in the work place. 70 Wash.U.L.Q. 853 (1992). Private matters in private employment. Thomas J. Barnes and Gregory M. Palmer, 1986 Det.C.L.Rev. 825 (1986). Promoting the progress of science and the useful arts in the digital domain: Co pyright, computer bulletin boards, and liability for infringement by others. 45 Emory L.J. 1035 (1996).

Using modern technology to communicate with clients: Proceed with caution and c ommon sense. Mary Frances Lapidus, 34 Hous.Law. 39 (Sep./Oct. 1996). Walls (and wires) have ears: The background and first ten years of the Foreign Intelligence Surveillance Act of 1978. Americo R. Cinquegrana, 137 U.Pa.L.Rev. 793 (1989). What victims of computer crime should know and do. Stephen Fishbein, 210 N.Y.L. J. 1 (Nov. 12, 1993). Wiretapping in Nebraska. Richard E. Shugrue. 19 Creighton L.Rev. 194 (1985-19 86). Texts and Treatises Business and Commercial Litigation in Federal Courts s 4.13 (Robert L. Haig ed.) (West Group & ABA 1998). Evidence, admissibility of, see LaFave and Israel s 4.1 et seq. Wiretapping, eavesdropping, use of recorders or transmitters by undercover agent s, see Wright: Criminal 2d s 665. Criminal Procedure, 8 Fed Proc L Ed ss 22:231, 232, 279. NOTES OF DECISIONS Admissibility of evidence 6 Authorization for interception 11 Burden of proof 28b Cellular communication, interception of 28 Color of law 33 Common carriers 20 Consent 5 Constitutionality 3/8 Construction Construction - Generally 1/4 Construction - With Fourth Amendment 11/32 Construction - With other laws 5/1Crimes 3 Custodial parent's good faith concern 40 Defenses 21 Definitions 3b Descramblers 31 Devices 8a Disclosure 4a Discovery 4 Electronic surveillance 15 Elements of offense 3a E-mail communications 22a Enforcement 2 Exceptions 3d Executive powers 13 Harmless or prejudicial error 29 Immunity 25 Indictments 37 Injurious act 26 Intent 3f Interception of commercial satellite programming 28a Interspousal immunity 9 Jurisdiction 2c Knowledge 3g Law governing 18 Limited disclosure 16

Monitoring 36 Overhearing of oral communication 8 Party to communication 7 Power of Congress 3/4 Pre-arrest conversation 32 Prior law 7/8 Prisoners 23 Privacy, invasion of right 2a Private conversations 14 Probable cause 1 Purpose 1/2 Retroactive effect 15/16 Scope of review 30 Scope of section 2b

Search and seizure 1a Standing to maintain action 3c State laws 10 Suppression of contents 17 Surreptitious monitoring of conversations 19 Time period for interception 12 Tortious act 34 Use 39 Venue 27 Violations 24 Voice mail recording 35 Weight and sufficiency of evidence 6a While in transmission 38 Willfully 3e Wire communication 22 1/4. Construction Congress intended consent requirement of federal wiretapping statute exclusion for communications to which one of parties has given consent to interception to be construed broadly. Griggs-Ryan v. Smith, C. A.1 (Me.) 1990, 904 F.2d 112. By using term "injurious act" in conjunction with "criminal and tortious acts," Congress intended this section prohibiting any interception, use or disclosure of oral or wire communications with consent of o ne of parties where purpose is to commit any criminal, tortious, or injurious act to reach certain kinds of harmful conduct w hich might not strictly be criminal or tortious, but it seems apparent from context in which this section was enacted that the so rt of conduct contemplated was an interception by a party to a conversation with an intent to use that interception against nonconse nting party in some harmful way and in a manner in which offending party had no right to proceed. Meredith v. Gavin, C.A.8 (Mo.) 19 71, 446 F.2d 794. In light of criminal penalties provided for unauthorized descrambling of satell ite programming, descrambling was not intended to be included in wiretap laws; satellite transmission interception by home viewer s was mentioned in legislative history of wiretap laws only in context of excepting unscrambled satellite transmissions. U.S. v. Shriver, C.D.Ill.1992, 782 F.Supp. 408, reversed 989 F.2d 898, amended on rehearing. This section providing criminal penalties for anyone who willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication must be read to require a federal nexus in order to pass constitutional muster. U. S. v. Hubbard, D.C.D.C.1979, 474 F.Supp. 64. 5/16. Construction with other laws Purpose of subsection (2) (a) of this section concerning wire interception by a gents of communication common carrier, and of 1968 amendment to section 605 of Title 47, concerning unauthorized publication or use of communications was to statutorily enact judicially recognized exception to general prohibition of latter provision. U. S. v. Clegg, C.A.5 (Tex.) 1975, 509 F.2d 605.

Provision of Electronic Communications Privacy Act (ECPA) proscribing intercept ion of electronic communications only applies to intercepting or accessing information while in transmission whereas provision of ECPA proscribing unauthorized access of stored electronic communications applies only once electronic messages are stored. U.S . v. Moriarty, D.Mass.1997, 962 F.Supp. 217. Wiretap Act section, providing it shall not be unlawful to intercept any radio communication which is transmitted by any governmental, law enforcement, civil defense, private land mobile, or public saf ety communications system, including police and fire, readily accessible to general public, limits applicability of statute, pro viding no person not being authorized by sender shall intercept any radio communication and divulge or publish existence, conten ts, substance, purport, effect, or meaning of such intercepted communication to any person; introductory clause of statute, providi ng except as authorized by Wiretap Act, modifies each and every sentence of statute, not just first sentence. U.S. v. Gass, N.D. Okla.1996, 936 F.Supp. 810. Though this chapter and section 605 of Title 47 have preempted the fields of wi retapping and electronic surveillance, their prohibitions against use of evidence are in addition to those imposed by the sea rch and seizure provisions of the Federal and State Constitutions. People v. Mahoney, Cal.App. 2 Dist.1975, 122 Cal.Rptr. 174, 47 C al.App.3d 699. Although state Security of Communications Act evinces greater concern for prote ction of privacy interests in conversation than does federal Omnibus Crime Control and Safe Streets Act, legislative history of federal act may be consulted for guidance on interpreting state statute. Mozo v. State, Fla.App. 4 Dist.1994, 632 So.2d 623, review granted 640 So.2d 1108, approved 655 So.2d 1115, rehearing denied. 11/32. Construction With Fourth Amendment Both U.S.C.A. Const.Amend. 4, by judicial interpretation, and this chapter, and Safe Streets Act, expressly, allow undercover

agent to record his conversations with suspect and allow Government to introduce such recordings in evidence. U.S. v. Eschweiler, C.A.7 (Ill.) 1984, 745 F.2d 435, certiorari denied 105 S.Ct. 1188, 469 U.S. 1214 , 84 L.Ed.2d 334. Warrantless electronic interceptions of conversations by informant acting under color of law within purview of subsec. (2)(c) of this section governing electronic surveillance are not proscribed by U.S.C.A. Co nst.Amend. 4, since individual has no legitimate expectation that person to whom he is speaking will not relate conversation to l egal authorities, either by repetition or by recording of conversation. U.S. v. Haimowitz, C.A.11 (Fla.) 1984, 725 F.2d 1561 , certiorari denied 105 S.Ct. 563, 469 U.S. 1072, 83 L.Ed.2d 504. Under this chapter, unlike U.S.C.A. Const. Amend. 4, the invasion of privacy is not simply over and done with when an unlawful intrusion has been effected; rather, a disclosure or use of information obtaine d through such intrusion amounts to a separate injury to victim's privacy interest. U. S. v. Dorfman, C.A.7 (Ill.) 1982, 690 F .2d 1217. Although any electronic surveillance is presumptively unlawful if instituted wi thout compliance with the strictures of this chapter, a surveillance immune from the warrant requirement of U.S.C.A. Const. A mend. 4 would not be rendered unlawful by this chapter. (Per Wright, Circuit Judge, with three Judges concurring and three add itional Judges concurring in the judgment.) Zweibon v. Mitchell, C.A.D.C.1975, 516 F.2d 594, 170 U.S.App.D.C. 1, certiorari denied 9 6 S.Ct. 1684, 425 U.S. 944, 48 L.Ed.2d 187, certiorari denied 96 S.Ct. 1685, 425 U.S. 944, 48 L.Ed.2d 187, on remand 444 F.S upp. 1296. Even if this section and prior presidential practice could be invoked to author ize warrantless wiretaps, national security surveillance still must be exercised in a manner compatible with U.S.C.A. Const. Amend. 4. Halperin v. Kissinger, D.C.D.C.1976, 424 F.Supp. 838, supplemented 434 F.Supp. 1193, reversed on other grounds 606 F. 2d 1192, 196 U.S.App.D.C. 285, certiorari granted 100 S.Ct. 2915, 446 U.S. 951, 64 L.Ed.2d 807, affirmed in part, dismissed in par t 101 S.Ct. 3132, 452 U.S. 713, 69 L.Ed.2d 367, rehearing denied 102 S.Ct. 892, 453 U.S. 928, 69 L.Ed.2d 1024, on remand 542 F.S upp. 829, on remand 578 F.Supp. 231. 3/8. Constitutionality Statute prohibiting tortious or criminal interception and disclosure of wire or oral communications in no way provides for prior restraint of press in their exercise of their First Amendment rights, even if pr ess's conduct clearly violates statute. In re King World Productions, Inc., C.A.6 (Mich.) 1990, 898 F.2d 56. Exception to wiretap statute, prohibiting nonconsensual recording of communicat ions for "purpose of committing any * * * injurious act" was unconstitutionally vague as applied to news media. Boddie v. American Broadcasting Companies, Inc., C.A.6 (Ohio) 1989, 881 F.2d 267, rehearing denied, certiorari denied 110 S.Ct. 737, 493 U.S. 1028, 107 L.Ed.2d 755.

Provision of subsec. (2)(d) of this section that it is not unlawful for a perso n not acting under color of law to intercept a communication if the person is a party to the communication unless the communica tion is intercepted for the purpose of committing criminal or tortious acts or other injurious act is not unconstitutionally vague ; the terms "criminal," "tortious," and "injurious act," are not so vague that men of common intelligence must guess at their meani ng. U. S. v. Edelson, C.A.7 (Ill.) 1978, 581 F.2d 1290, certiorari denied 99 S.Ct. 1216, 440 U.S. 908, 59 L.Ed.2d 456. As no one has a constitutionally protected expectation that the person to whom he voluntarily reveals incriminating information will keep it secret, the consensual interceptions permitted under this chapter d o not offend U.S.C.A. Const. Amend. 4. U.S. v. Hodge, C.A.6 (Mich.) 1976, 539 F.2d 898, certiorari denied 97 S.Ct. 1100, 429 U. S. 1091, 51 L.Ed.2d 536. This section providing that it is not unlawful for operator of a switchboard or an agent of a communications common carrier to intercept or use communications in normal course of employment while engaged in any activity necessary to the rendition of service or to protect rights or property of the carrier is not unconstitutional. U. S. v. Goldstein, C.A.9 (Cal.) 1976, 532 F.2d 1305, certiorari denied 97 S.Ct. 384, 429 U.S. 960, 50 L.Ed.2d 327. This section, making it lawful for a person acting under color of law to interc ept a wire or oral communication where such person is a party to the communication or one of parties to the communication has given prior consent to such interception, does not offend U.S.C.A. Const. Amends. 4, 5, for one has no constitutionally protected e xpectation that the person to whom he voluntarily reveals incriminating information will keep it secret. U. S. v. Quintana, C.A.7 (Ill.) 1975, 508 F.2d 867. This section prohibiting interception of a wire or oral communication is not un constitutional as violative of equal protection because it allows the interception of a wire or oral communication by employees of communication carrier for certain purposes. U. S. v. Esenberg, E.D.Wis.1976, 416 F.Supp. 835. United States Attorney General's authorization of wiretap, under authority gran ted by the President of the United States, for purpose of gathering foreign intelligence information did not violate U.S.C.A. C onst. Amend. 4. U. S. v. Enten, D.C.D.C.1971, 388 F.Supp. 97. This section proscribing wilfully intercepting, endeavoring to intercept or pro curing any other person to intercept or endeavor to intercept, any wire or oral communication is constitutional, in that it protects right to privacy. U. S. v. Perkins, N.D.Ohio 1974, 383 F.Supp. 922.

This section prohibiting interception or endeavor to intercept wire or oral com munication is, with respect to oral communications, constitutional by reason of its applicability to state and not to private action . U. S. v. Burroughs, D.C.S.C.1974, 379 F.Supp. 736, appeal dismissed 510 F.2d 967, opinion withdrawn 537 F.2d 1156, affirmed 56 4 F.2d 1111. 1/2. Purpose Omnibus Crime Control and Safe Streets Act section making it unlawful for priva te person to intercept wire or oral communication when that person is party to communication was not intended to protect wrongdoer s whose criminal activity is tape recorded by their own confederates. Traficant v. C.I.R., C.A.6 1989, 884 F.2d 258. In enacting this section prohibiting willful interception of any wire or oral c ommunication, Congress did not intend to prohibit recording conversation when its purpose was to preserve evidence of extortion di rected against recorder, president of franchisor, to be used later for purpose of terminating franchise agreement. Moore v. Telfo n Communications Corp., C.A.9 (Cal.) 1978, 589 F.2d 959. Purpose of this section governing interceptions of wire or oral communications was to sharply curtail electronic surveillance and to authorize it only under strict judicial supervision and authorization. U. S. v. Jones, C.A.6 (Tenn.) 1976, 542 F.2d 661. Purpose of this section justifying wire interception is to allow the disclosure of justified wire monitoring by communication carriers for the purpose of criminal prosecution of those who fraudulently use t heir services. U. S. v. Harvey, C.A.8 (Ark.) 1976, 540 F.2d 1345. Congress, in enacting this section authorizing communications carriers to engag e in certain investigations to detect improper use of their facilities, intended to permit wire service carriers to conduct investi gations designed to prevent subscriber fraud. U. S. v. Goldstein, C.A.9 (Cal.) 1976, 532 F.2d 1305, certiorari denied 97 S.Ct. 38 4, 429 U.S. 960, 50 L.Ed.2d 327. Essential purpose of provisions of this chapter is to combine a limited and car efully articulated grant of power to intercept communications with an elaborate set of safeguards to deter abuse and to expunge its effects in event that it should occur, and prohibitions and limitations are designed as a precondition to acceptability of any wiretapping at all. In re Evans, C.A.D.C.1971, 452 F.2d 1239, 146 U.S.App.D.C. 310, certiorari denied 92 S.Ct. 2479, 408 U.S. 9 30, 33 L.Ed.2d 342. Exclusivity provision of Foreign Intelligence Surveillance Act procedures in T itle III of Omnibus Crime Control and Safe Streets Act (federal wiretap law) and Surveillance Act are exclusive means by which elec tronic surveillance and interception of domestic wire and oral communications may be conducted--is intended to curtail executive authority in national security matters and is not intended to curtail law enforcement investigations of criminal activities; thus,

incorporation of video surveillance into FISA does not forbid use of such surveillance in criminal investigations. U.S. v. Andonia n, C.D.Cal.1990, 735 F.Supp. 1469, affirmed and remanded on other grounds 29 F.3d 634, certiorari denied 115 S.Ct. 938, 513 U.S. 1128, 130 L.Ed.2d 883. Amendment s with the purpose of to change Companies, ng denied, U.S. 1028, to wiretap law to remove liability for tape recording of conversation consent of one of the parties for the committing injurious act was intended only to clarify the law and not it. Boddie v. American Broadcasting Inc., N.D.Ohio 1988, 694 F.Supp. 1304, affirmed 881 F.2d 267, reheari certiorari denied 110 S.Ct. 737, 493 107 L.Ed.2d 755.

Congress, in enacting this chapter, intended to prohibit interception of all wi re communications by any person except as specifically provided by Congress and, therefore, intended to prohibit one spous e from intercepting the wire communications of the other spouse in their own home. Kratz v. Kratz, E.D.Pa.1979, 477 F.Supp. 463. This section providing exemption from liability for interception of oral commun ications by operator of switchboard or officer, employee, or agent of any communication common carriers whose facilities are use d in transmission of wire communication, was intended to permit telephone companies to engage in reasonable activities to pro tect their property through limited monitoring of lines of suspected illegal users. Campiti v. Walonis, D.C.Mass.1978, 453 F.Supp . 819, affirmed 611 F.2d 387. Purposes of this section are to protect privacy of oral and wire communications while delineating on uniform basis narrow and clearly defined circumstances and conditions under which interception of such co mmunications may be authorized, to which end statute prohibits, on pain of criminal and civil penalties, all interceptions of oral and wire communications except those specifically provided for, most notably those permitted law enforcement officers when authorized by court order in connection with investigation of certain serious crimes. State v. DeMartin, Conn.1976, 370 A.2d 1038, 171 Conn. 524. Purpose of constitutional right of privacy and state and federal regulations pr ohibiting recording of conversations is to protect confidential communications; thus, test as to whether such statutory laws have been violated depends on whether person whose conversation was recorded had a reasonable expectation of privacy at time of the recording. People v. Newton, Cal.App. 5 Dist.1974, 116 Cal.Rptr. 690, 42 Cal.App.3d 292, certiorari denied 95 S.Ct. 1147 , 420 U.S. 937, 43 L.Ed.2d 414. Purpose of Omnibus Crime Control and Safe Streets Act is to define on uniform b asis, circumstances and conditions under which interceptions of wire and oral communications can be authorized, and to prohibit any unauthorized interceptions with such

communications and use of contents thereof in evidence in courts and administrat ive proceedings. People v. Trief, N.Y.Sup.1970, 317 N.Y.S.2d 525, 65 Misc.2d 272, affirmed 323 N.Y.S.2d 659, 37 A.D.2d 553. 3/4. Power of Congress Both U.S.C.A. Const. Amend. 4, by judicial interpretation, and this chapter, an d Safe Streets Act, expressly, allow undercover agent to record his conversations with suspect and allow Government to introduce such recordings in evidence. U.S. v. Eschweiler, C.A.7 (Ill.) 1984, 745 F.2d 435, certiorari denied 105 S.Ct. 1188, 469 U.S. 1214 , 84 L.Ed.2d 334. Congressional authority to enact this section prohibiting the willful intercept ion of oral communications on the premises of a business whose operations affect interstate commerce is sufficiently grounded in Congress' general power under the commerce clause, U.S.C.A. Const. Art. 1, s 8, cl. 3, rationally to classify for regulation certai n activities found by it to affect interstate commerce and to devise appropriate means for the regulation. U. S. v. Duncan, C .A.4 (N.C.) 1979, 598 F.2d 839, certiorari denied 100 S.Ct. 148, 444 U.S. 871, 62 L.Ed.2d 96. Congress has plenary power under commerce clause, U.S.C.A. Const. Art. 1, s 8, cl. 3, to prohibit all interception of wire communications forming part of interstate or foreign communications network, whe ther by wiretapping or otherwise. U. S. v. Blattel, N.D.Iowa 1972, 340 F.Supp. 1140. 7/8. Prior law Subsec. (2) (c) of this section dealing with governmental wiretaps without warr ant to which one party consented was worded as exception to this section's general prohibition of judicially nonauthorized wire taps, not as a positive authorization of such taps; Congress thus left prior law of consensual wiretaps intact; and it was not cle ar that Congress intended to displace more rigorous requirements found in state laws. U. S. v. Keen, C.A.9 (Wash.) 1974, 508 F.2d 9 86, certiorari denied 95 S.Ct. 1655, 421 U.S. 929, 44 L.Ed.2d 86. 15/16. Retroactive effect Amendment deleting one of three listed exceptions to wiretap statute, thereby e liminating cause of action, was not retroactively applicable in that amendment affected substantive rights and liabilities. Boddi e v. American Broadcasting Companies, Inc., C.A.6 (Ohio) 1989, 881 F.2d 267, rehearing denied, certiorari denied 110 S.Ct. 737, 49 3 U.S. 1028, 107 L.Ed.2d 755. Omnibus Crime Control and Safe Streets Act provision that "no cause of action s hall lie in any court" against those who assist in performance of federal intercept prevails over provisions of Puerto Rico Constit ution and law prohibiting wiretapping; provision was not "locally inapplicable" within meaning of Federal Relations Act provision stating the statutory laws of United States "not locally inapplicable" shall have same force and effect in Puerto Rico as in Unit ed States. Camacho v. Autoridad de Telefonos de

Puerto Rico, C.A.1 (Puerto Rico) 1989, 868 F.2d 482. Rule of Sweibon v. Mitchell, which narrowly interpreted national security exemp tion to exclude only those national security wiretaps that could constitutionally be performed without a warrant would apply only prospectively. Sinclair v. Kleindienst, C.A.D.C.1981, 645 F.2d 1080, 207 U.S.App.D.C. 155. 1. Probable cause General rule, under this chapter prohibiting unauthorized electronic surveillan ce, is that eavesdropping and wiretapping are permitted only with probable cause and a warrant. Alderman v. U.S., U.S.Colo.19 69, 89 S.Ct. 961, 394 U.S. 165, 22 L.Ed.2d 176, rehearing denied 89 S.Ct. 1177, 394 U.S. 939, 22 L.Ed.2d 475, on remand 318 F.Su pp. 66, on remand 342 F.Supp. 928. Information in affidavit submitted in support of application for wiretap order was not stale, and therefore probable cause existed for issuance of wiretap authorization; even though investigation of drug conspi racy began nearly two years before application for wiretap authorization and last drug transaction that was observed occurred over four months before application for wiretap authorization, ongoing nature of conspiracy was sufficiently established by affi davit. U.S. v. Tallman, C.A.8 (Neb.) 1991, 952 F.2d 164, rehearing denied, certiorari denied 112 S.Ct. 2318, 504 U.S. 961, 119 L.Ed.2d 237, certiorari denied 112 S.Ct. 2319, 504 U.S. 962, 119 L.Ed.2d 237. Government is not required to establish probable cause as to all participants i n a conversation before it can intercept a particular conversation; if probable cause has been shown as to one such partic ipant the statements of the other participants may be intercepted if pertinent to the investigation. U. S. v. Tortorello, C.A.2 (N .Y.) 1973, 480 F.2d 764, certiorari denied 94 S.Ct. 63, 414 U.S. 866, 38 L.Ed.2d 86. Arresting government agent, who was privy to two meetings involving informant a nd accused and relating to examination, oral description, transfer and sale of stolen United States bonds from accused to inf ormant and who was aware of preexisting information concerning relationship between accused and informant, had probable cause to mak e warrantless arrest of accused; thus, search of accused's person for contraband incident to such arrest was constitutionally val id. Com. v. Donnelly, Pa.Super.1975, 336 A.2d 632, 233 Pa.Super. 396, certiorari denied 96 S.Ct. 1477, 424 U.S. 974, 47 L.Ed.2d 744 .

Where detective's affidavit in support of search warrant did not indicate wheth er telephone conversations personally overheard by manager of apartment complex in which defendant lived had been overheard intenti onally or inadvertently, the magistrate, in absence of a contrary showing, was entitled to presume, for purpose of assessing existen ce of probable cause, that manager was not guilty of a crime or wrongdoing. People v. Buchanan, Cal.App. 4 Dist.1972, 103 Cal.Rpt r. 66, 26 Cal.App.3d 274. A termination date, establishing finally the duration of interception, is neces sary to prevent a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Com. v. Vitello, M ass.1975, 327 N.E.2d 819, 367 Mass. 224. Motel manager's intentionally overhearing phone call placed to motel room may h ave been a violation of the Omnibus Crime Act since it was a deliberate interception; however, such interception did not operate to vitiate subsequent arrest by police officers to whom manager related contents of call where substance of overheard conversation was so insignificant that it could not have in any way contributed to probable cause needed for arrest. State ex rel. Flournoy v. Wren, Ariz.1972, 498 P.2d 444, 108 Ariz. 356. In light of fact that accused, who was charged with conspiracy to commit murder , was not justified in any expectation of privacy with regard to his face-to-face and telephone conversations with detective and w ith investigator who posed as a hired killer, tapings of such conversations, with consent of detective and investigator but wi thout the knowledge of accused, was lawful; thus, the recordings of such conversations could be utilized to support finding of pro bable cause for issuance of wiretap order and were admissible. Orkin v. State, Ga.1976, 223 S.E.2d 61, 236 Ga. 176. 1A. Search and seizure Regardless of whether microphone was more sensitive than human ear, Government' s "wiring" of defendant's associate to record incriminating conversations in defendant's home relating to illegal drug transac tions did not violate defendant's rights under U.S.C.A. Const.Amend. 4, where associate volunteered for such activity, and only conversations used as evidence against defendant were conversations which associate could and did hear. U.S. v. Eschweiler, C.A. 7 (Ill.) 1984, 745 F.2d 435, certiorari denied 105 S.Ct. 1188, 469 U.S. 1214, 84 L.Ed.2d 334. Where defendant convicted of illegal wiretapping was private person and not age nt of government, search and seizure rules pursuant to U.S.C.A. Const. Amend. 4 which allow government to use illegally seized evide nce for impeachment purposes did not come into play. Anthony v. U. S., C.A.10 (Okla.) 1981, 667 F.2d 870, certiorari denied 10 2 S.Ct. 2959, 457 U.S. 1133, 73 L.Ed.2d 1350. Sound recording made by government agent who is party to recorded conversation or sound recording made by government agent with permission of one of parties to recorded conversation is not violation of U.S.C. A. Const. Amend. 4. U. S. v. King, C.A.9 (Mont.) 1978, 587 F.2d 956.

In that telephone company's nine days of monitoring incoming calls on defendant s' telephone was completed prior to telephone company's notifying law enforcement agency and surveillance was conducted indepe ndently from any government direction or participation, such surveillance was not an illegal government search. U. S. v. Logan, S.D.Ill.1976, 423 F.Supp. 146. 2. Enforcement Without experience showing the contrary Supreme Court should not assume that th is chapter prohibiting unauthorized electronic surveillance will be cavalierly disregarded or will not be enforced against tran sgressors. Alderman v. U.S., U.S.Colo.1969, 89 S.Ct. 961, 394 U.S. 165, 22 L.Ed.2d 176, rehearing denied 89 S.Ct. 1177, 394 U.S . 939, 22 L.Ed.2d 475, on remand 318 F.Supp. 66, on remand 342 F.Supp. 928. 2A. Privacy, invasion of right Acquisition and use of telephone subscriber information did not violate federal law because there could be no expectation that this information would remain private; subscriber information was listed in pho ne books and city directories and, at bare minimum, revealed to phone company to obtain telephone service. U.S. v. Fregoso, C.A.8 ( Neb.) 1995, 60 F.3d 1314, rehearing and rehearing en banc denied. Statement made by former wife to her children and other relatives, that she was having an affair and that her former husband had recorded some of her conversations with her boyfriend, did not constitute public disclosure of contents of tape-recorded conversation with her boyfriend precluding her suit against former husband for d amages arising out of allegedly illegal procurement of that recording. Fultz v. Gilliam, C.A.6 (Tenn.) 1991, 942 F.2d 396. Genuine issue of material fact as to whether postal employee had subjective exp ectation that conversations taking place near his work station were free from electronic interception by supervisors and whether s uch expectation was objectively justified under circumstances precluded grant of summary judgment in favor of supervisors in emp loyee's action under antiwiretap statute; employee presented affidavit that he did not give permission to supervisors to monitor an y conversations at work station, and although employee might have expected conversations uttered in normal tone of voice to be overheard by those standing nearby, it was highly unlikely that he would have expected his conversations to be electronically inte rcepted and monitored in office in another part of building. Walker v. Darby, C.A.11 (Ala.) 1990, 911 F.2d 1573.

Congress did not intend, by making otherwise lawful private interception unlawf ul if interception is made for purpose of committing any criminal act, to shield very people who committed unlawful interc eptions from consequences of their wrongdoing, and thus defendants, who made tapes of conversations to prevent disagreements with b ettors over amount of wagers, waived their right of privacy in these illegal gambling records by their deliberate act of causing the m to be recorded. U.S. v. Underhill, C.A.6 (Tenn.) 1987, 813 F.2d 105, certiorari denied 107 S.Ct. 2484, 482 U.S. 906, 96 L.Ed.2d 3 76, certiorari denied 107 S.Ct. 3268, 483 U.S. 1022, 97 L.Ed.2d 766, certiorari denied 108 S.Ct. 141, 484 U.S. 846, 98 L.Ed.2d 98, certiorari denied 108 S.Ct. 81, 484 U.S. 821, 98 L.Ed.2d 43. Even if house where government agent answered phone call from defendant's wife was under defendant's dominion and control, this section did not bar government agent, an officer lawfully on the premises, from answering the ringing telephone. U. S. v. Vadino, C.A.11 (Fla.) 1982, 680 F.2d 1329, rehearing denied 691 F.2d 977, certiorari den ied 103 S.Ct. 1771, 460 U.S. 1082, 76 L.Ed.2d 344. Where only "interception" of telephone call from defendant was by government ag ent who was party to conversation, where government agents did not record or transcribe all in any way, and where defendant institut ed calls and spoke voluntarily and without hesitation to agents, none of whom pretended to be person that defendant wished to reach, defendant had no legitimate expectation of privacy in telephone conversations with agents and assumed risk of exposure w hen he spoke freely with them. U. S. v. Congote, C.A.5 (Fla.) 1981, 656 F.2d 971. Application of this section prohibiting the secret monitoring of wire communica tions should not turn on the type of equipment used, but should turn on whether the privacy of telephone conversations has been invaded in a manner offensive to the words and intent of the statutes. Campiti v. Walonis, C.A.1 (Mass.) 1979, 611 F.2d 387. It is not every interception of a wire or oral communication by a person not ac ting under color of law that is made for purpose of committing a tortious act; each willing participant in the conversation takes t he risk that another participant may divulge the contents of the conversation and if the conversation is divulged, whether by mem ory of the participant or by electronic reproduction, there is no violation of any privacy right. U. S. v. Phillips, C. A.8 (Mo.) 1976, 540 F.2d 319, certiorari denied 97 S.Ct. 530, 429 U.S. 1000, 50 L.Ed.2d 611. Radio station employee speaking to co-worker at traffic reporter's work station near microphone could not reasonably expect to make communications free from interception, as required to state claim under Ele ctronic Communications Privacy Act (ECPA); although employee did not have knowledge of microphone's cue function or its inn erworkings, she should reasonably have known that detection of comments made close to microphone was distinct possibility. Wesley v. WISN Division-Hearst Corp., E.D.Wis.1992, 806 F.Supp. 812.

There was no reasonable expectation of privacy in communication which was broad cast by radio in all directions to be overheard by countless people who purchase and daily use receiving devices such as "bearcat" scanner, or who happen to have another mobile radio telephone tuned to same frequency; thus, operator of radio receiver scanner did not violate Federal Wiretapping Act by intercepting conversation between attorney and client, tape recording it, or div ulging it to United States Attorney, and any disclosure made by United States Attorney was also not violation of statute. Ed wards v. Bardwell, M.D.La.1986, 632 F.Supp. 584, affirmed 808 F.2d 54. Applicable federal and state constitutional provisions apply only where parties to communication have a "reasonable expectation of privacy" with respect to what is said; similarly, protection afforded by this s ection and state statutes which prohibit introduction into evidence of certain conversations, applies only to communicati ons uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justi fying such expectation, or to a communication that is intended to be confidential. Bianco v. American Broadcasting Companies, Inc. , N.D.Ill.1979, 470 F.Supp. 182; People v. Estrada, 1979, 155 Cal.Rptr. 731, 93 C.A.3d 76. Trial court in divorce action erred in admitting evidence consisting of taped p hone conversations that were illegally obtained, even though statutes making taping illegal did not specifically provide that ill egally taped conversations were inadmissible, as provisions rebutted presumption of admissibility under Rules of Evidence, where federal law prohibited the use or disclosure of the tapes except as provided by statute, state statute provided cause of action agai nst any person who divulges information obtained by illegal wiretap, and provided that party may ask court for injunction prohibitin g divulgence or use of information obtained by intercepted communication; thus, admission of such evidence would make court pa rtner to illegal conduct. Collins v. Collins, Tex.App.-Hous. (1 Dist.) 1995, 904 S.W.2d 792, rehearing overruled, writ denied 923 S.W.2d 569, rehearing of writ of error overruled. 2B. Scope of section Federal wiretapping law prohibits more than just initial wrongful invasion; di sclosure and/or use of information obtained through wrongful invasion amounts to separate injury prohibited by statute, and makes pe rson subjected to such disclosure and/or use victim once again of federal crime. Williams v. Poulos, C.A.1 (Me.) 1993, 11 F.3d 271. This section is not limited in its application merely to persons acting under c olor of state or federal law. U. S. v. Burroughs, C.A.4 (S.C.) 1977, 564 F.2d 1111.

Federal law regarding interception of oral and wire communications governs only conversations that were recorded by someone not a party to communications. Kettenbach v. Demoulas, D.Mass.1995, 901 F.Supp. 486. Radio stations' transmissions on subcarrier frequencies that could be received only through use of special, modified radio equipment provided to subscribers for yearly fee were not the type of transmissi ons protected under Communications Act section prohibiting interception of wire, oral, or electronic communications, so as to p ermit civil action recovery; the prohibitive statute was concerned with efforts to surreptitiously learn contents of private, business, or personal communications made over a telephone and with electronic surveillance. Greek Radio Network of America, Inc . v. Vlasopoulos, E.D.Pa.1990, 731 F.Supp. 1227. Subsec. (2) of this section which prohibits communication carriers from disclos ing interception or surveillance information with respect to which person has been furnished order or certification did not apply to videotape interceptions of insurance sales presentations which were not done under auspices of court order or written certi fication. Wasserman v. Low, Ariz.App.1984, 691 P.2d 716, 143 Ariz. 4. This chapter prohibits all wiretapping and electronic surveillance by persons o ther than duly authorized law enforcement officers engaged in the investigation or prevention of specified types of serious crimes, and only after authorization of court order obtained after showing and finding of probable cause. Sikes v. Segers, Ark.1979 , 587 S.W.2d 554, 266 Ark. 654. 2C. Jurisdiction Testimony of officer of company that owned stolen truck that load of books on t ruck was valued for insurance purposes for more than $15,000, either alone, or in conjunction with jury members' own knowledge o f costs of such common item, was sufficient to allow reasonable inference that market value of books exceeded $5,000 in order t o meet jurisdictional requirements. U.S. v. Davis, C.A.11 (Ga.) 1986, 799 F.2d 1490. 3. Crimes Conduct of private detective who personally instructs and supervises individual in installation and connection of wiretapping equipment for purpose of intercepting telephone communications falls within inte rception language of this section. White v. Weiss, C.A.8 (Neb.) 1976, 535 F.2d 1067. Conduct of defendant, who was charged with illegally intercepting the telephone calls of his alleged former lover, came within the scope of the wire interception provisions of this section, where defendant had n ever been married to the prosecutrix, where, at the time of the incident in question, he was not a part of her household, and where he had no legal right to be on the premises or to tape record her telephone conversations. U. S. v. Schrimsher, C.A.5 (Tex.) 1974 , 493 F.2d 848.

Union member and union's executive board violated Federal Wiretap Act by tape r ecording executive session of the Public Law Board and by using and disclosing the contents of the tape, for purposes of request fo r permanent injunction, where member intentionally recorded meeting without knowledge and consent of any of the parties, and member and executive board disclosed contents of recording on numerous occasions with knowledge of how recording was made. Earley v. Executive Bd. of United Transp. Union, N.D.Ohio 1996, 957 F.Supp. 997. Regional chief of security for a department store chain was not guilty of unlaw ful interception of telephone conversations when, having received reports of various improprieties occurring in the chain's men's shoe department, he monitored and recorded conversations occurring on chain's privately operated intercommunications system . U. S. v. Christman, N.D.Cal.1974, 375 F.Supp. 1354. Orders authorizing interceptions of wire or oral communications may be entered only when the interception may provide evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marijuana, or other dangerous drugs or any conspiracy to commit any of such offe nses. State v. Siegel, Md.App.1971, 285 A.2d 671, 13 Md.App. 444, affirmed 292 A.2d 86, 266 Md. 256. Telephone subscriber is not authorized to use his telephone to commit a crime. State v. Holliday, Iowa 1969, 169 N.W.2d 768. 3A. Elements of offense Circumstances hapter are not which criminal .S.Md.1974, 94 341. under which suppression of wiretap evidence is required by this c necessarily the same as those on violation of wiretap statutes may be found. U. S. v. Giordano, U S.Ct. 1820, 416 U.S. 505, 40 L.Ed.2d

Liability under Federal Wiretap Act for disclosure or use of information requir es proof that disclosure or use was intentional, that information was obtained from intercepted communication, and that defendant knew or should have known that interception was illegal. Forsyth v. Barr, C.A.5 (Tex.) 1994, 19 F.3d 1527, certiorari denied 11 5 S.Ct. 195, 130 L.Ed.2d 127. In civil action for violation of federal wiretapping law, plaintiff must demons trate that information used or disclosed came from

intercepted communication, and sufficient facts concerning circumstances of inte rception such that defendant could, with presumed knowledge of law, determine that interception was prohibited in light of law; t his demonstration includes showing that any statutory exceptions asserted by defendant do not, in fact, apply. Williams v. Poulos, C.A.1 (Me.) 1993, 11 F.3d 271. Knowledge or reason to know of illegality of wiretap is an element of offense o f intentionally using contents of wiretapped conversations in violation of Omnibus Control and Safe Streets Act, and it was p lain error to instruct jury that it could find guilt without finding defendant knew or had reason to know that recordings of te lephone conversations were made in violation of Act since instruction deprived defendant of his only defense. U.S. v. Wuliger, C.A. 6 (Ohio) 1992, 981 F.2d 1497, rehearing denied 999 F.2d 1090, certiorari denied 114 S.Ct. 1293, 510 U.S. 1191, 127 L.Ed.2d 647, reh earing denied 114 S.Ct. 1872, 511 U.S. 1101, 128 L.Ed.2d 492. Use of interception of wire, oral, or electronic communication for criminal or tortious purpose is not prerequisite to liability under Omnibus Crime Control and Safe Streets Act. Stockler v. Garratt, C.A.6 (M ich.) 1990, 893 F.2d 856, rehearing denied. For interception and disclosure of wire communications to be a crime, it must b e done with bad purpose, without justifiable excuse, stubbornly, obstinately or perversely. U.S. v. Ross, C.A.8 (Ark.) 1983, 713 F.2d 389. The offense of electronic interception of oral communications includes four ess ential elements: that interception was effected through the use of electronic or mechanical device, that it was done willfully, that it was an interception of an "oral communication" and that the interception occurred on premises of business the op eration of which affected interstate commerce. U. S. v. Duncan, C.A.4 (N.C.) 1979, 598 F.2d 839, certiorari denied 100 S.Ct. 148, 444 U.S. 871, 62 L.Ed.2d 96. Police officer acts outside scope of his duties with "bad purpose," and hence "willfully" within meaning of this chapter, when he or she engages in electronic surveillance without a court order and in absence o f described kind of emergency; unless proscribed conduct is otherwise excused, it can result in both civil and criminal liability . U. S. v. McIntyre, C.A.9 (Ariz.) 1978, 582 F.2d 1221. Bank employee's recording of telephone conversations with bank customers and pr esident of another bank, without consent or knowledge of parties to the conversations, did not violate the federal wiretappi ng statute, absent evidence that employee was motivated by criminal or tortious purpose when he recorded conversations. Payne v. Norwest Corp., D.Mont.1995, 911 F.Supp. 1299, affirmed in part, reversed in part 113 F.3d 1079. For plaintiff to prevail on use or disclosure claim under federal wiretapping s tatutes, plaintiff must prove that defendant knew or should have known that information was product of illegal wiretap, and that d efendant had knowledge of facts and circumstances

surrounding interception so that he knew or should have known that interception was prohibited under wiretapping statutes. Thompson v. Dulaney, D.Utah 1993, 838 F.Supp. 1535, 139 A.L.R. Fed. 765. Liability for unlawful interception of telephone communications in violation of this chapter cannot be established against any defendant without showing that he acted in intentional or reckless disregard of his legal obligations. Citron v. Citron, S.D.N.Y.1982, 539 F.Supp. 621, affirmed 722 F.2d 14, certiorari denied 104 S.Ct. 2350, 466 U.S. 973, 80 L.Ed.2d 823. Though this section prohibiting interception or endeavor to intercept wire or o ral communication makes no direct reference to interstate or intra-state character of communication, essential element in crimi nal prosecution under this section, in the case of wire communication, is use in interstate commerce. U. S. v. Burroughs, D.C.S.C. 1974, 379 F.Supp. 736, appeal dismissed 510 F.2d 967, opinion withdrawn 537 F.2d 1156, affirmed 564 F.2d 1111. For interception of an oral communication to constitute an offense under this c hapter, three elements must be established: first, there must be a willful interception, second, the oral communication must be utt ered by a person exhibiting an expectation that communication would be private and, third, communication must have been under ci rcumstances justifying expectation of privacy. U. S. v. Carroll, D.C.D.C.1971, 337 F.Supp. 1260. If jurors found that secretary-treasurer of local union, who recorded conversat ions between himself and management representatives, acted in "good faith" according to federal wiretapping statutes [18 U.S.C.A. ss 2510- 2520], they could not find him guilty of offenses charged under state wiretapping law [Acts 1959, c. 706, s 1 et seq.; Code, Courts and Judicial Proceedings, s 10-402] because he would not then "know" that he was violating state law. Pet ric v. State, Md.App.1986, 504 A.2d 1168, 66 Md.App. 470, certiorari denied 508 A.2d 489, 306 Md. 289, certiorari denied 107 S.Ct. 206, 479 U.S. 860, 93 L.Ed.2d 136, rehearing denied 107 S.Ct. 613, 479 U.S. 1001, 93 L.Ed.2d 611. 3B. Definitions For purposes of requirement that electronic surveillance for domestic security purposes of members of domestic organizations be conducted only pursuant to an appropriate prior warrant procedure, "domestic org anization" is a group or organization, whether formally or informally constituted, composed of citizens of the United States an d having no significant connection with a foreign power, its agents, or agencies. U.S. v. U.S. Dist. Court for Eastern Dist. of M ich., Southern Division, U.S.Mich.1972, 92 S.Ct. 2125, 407 U.S. 297, 32 L.Ed.2d 752.

Pay-per-view television signals that were intercepted by electronic device manu factured and sold by defendants qualified as "electronic communications" within meaning of section of Wiretap Act prohibiting any person from knowingly manufacturing device whose primary use is surreptitious interception of electronic communications. U .S. v. Herring, C.A.11 (Ala.) 1993, 993 F.2d 784, certiorari denied 114 S.Ct. 347, 510 U.S. 933, 126 L.Ed.2d 312. Provision of wiretap statute prohibiting interception and unauthorized procurem ent of another person to intercept electronic communication applied to manufacture and sale of modified descramblers used to p ermit viewing of encrypted satellite television transmissions. U.S. v. Shriver, C.A.7 (Ill.) 1992, 989 F.2d 898, amended on reh earing. In order to find that defendant "intentionally" intercepted telephone conversat ions of third parties without their knowledge or consent, jury must find that defendant acted deliberately and purposefully, that is, defendant's act must have been product of defendant's conscious objective, rather than product of mistake or accident. U. S. v. Townsend, C.A.2 (Vt.) 1993, 987 F.2d 927, 122 A.L.R. Fed. 825. Person who views satellite television programming by use of modified descramble r and satellite dish "intentionally intercepts" satellite television signal, within meaning of Electronic Communications Privacy Act (ECPA), which is an "electronic communication" within meaning of ECPA. U.S. v. Lande, C.A.9 (Mont.) 1992, 968 F.2d 907, certio rari denied 113 S.Ct. 1299, 507 U.S. 926, 122 L.Ed.2d 689, denial of post-conviction relief affirmed 77 F.3d 491. Informants who record private conversations at direction of government investig ators are "acting under color of law" within purview of subsec. (2)(c) of this section governing electronic surveillance. U. S. v. Haimowitz, C.A.11 (Fla.) 1984, 725 F.2d 1561, certiorari denied 105 S.Ct. 563, 469 U.S. 1072, 83 L.Ed.2d 504. Assistant basketball coach at a state university was acting "under color of law " for purposes of federal wiretapping statute when he recorded a conversation with a student the coach was attempting to recruit; coach made the recording at direction of his superiors using equipment supplied by the university. Thomas v. Pearl, C.D.Ill. 1992, 793 F.Supp. 838, affirmed 998 F.2d 447, rehearing denied, certiorari denied 114 S.Ct. 688, 510 U.S. 1043, 126 L.Ed.2d 65 5. Persons who allegedly engaged in business of illegally modifying radio units, f or a fee, to allow unauthorized listeners to obtain and enjoy programming broadcast by radio stations on subcarrier frequencies that could not be received by general public would not be considered to have "procured others" to intercept radio stations' transmissio ns, so as to support civil recovery by station owner operator for violation of Communications Act section prohibiting intercept ing or procuring others to intercept, wire, oral, or electronic communications. Greek Radio Network of America, Inc. v. Vlasopoul os, E.D.Pa.1990, 731 F.Supp. 1227. 3C. Standing to maintain action

Particular defendants lacked standing to complain of admissibility of tape of t elephone conversation with government informant where neither of such particular defendants had legitimate expectation of privac y either as party to conversation or through possessory interest in the tape. U. S. v. Mendoza, C.A.5 (Tex.) 1978, 574 F.2d 1373, rehearing denied 579 F.2d 644, certiorari denied 99 S.Ct. 584, 439 U.S. 988, 58 L.Ed.2d 661. Management employees of textile corporation charged with knowingly and willfull y intercepting, endeavoring to intercept, and procuring other persons to intercept and endeavor to intercept certain oral comm unications being made by persons engaged in organizing union at corporation's textile plant had standing to challenge validi ty of par. (1) (a) of this section as applied to them and to require that prosecution prove all essential elements of crime with which they were charged and that all such elements be submitted to jury for resolution. U. S. v. Burroughs, C.A.4 (S.C.) 1977, 564 F.2d 1111. Defendant who was not party to telephone conversation and had no legitimate exp ectation of privacy either through participation in the conversation or through possessory interest in tape recordings lacked standi ng to contest admissibility of the transcripts on ground of alleged failure of compliance with applicable state and federal laws i n recording conversation. U. S. v. Ransom, C.A.5 (Ga.) 1975, 515 F.2d 885, rehearing denied 520 F.2d 944, certiorari denied 96 S. Ct. 1412, 424 U.S. 944, 47 L.Ed.2d 349, rehearing denied 96 S.Ct. 1687, 425 U.S. 945, 48 L.Ed.2d 189. Former wife could not assert rights of others who may have called former husban d's telephone and had their conversations tape recorded by former husband. Janecka v. Franklin, S.D.N.Y.1987, 684 F.Supp. 24, affirmed 843 F.2d 110. Since early wiretap orders formed basis for findings of probable cause as to la ter wiretap orders, all defendants had standing to challenge the wiretap orders, even though not all defendants were subjects of th e early orders. U.S. v. Marcello, E.D.La.1981, 508 F.Supp. 586, affirmed 703 F.2d 805, rehearing denied 707 F.2d 515, rehearing den ied 708 F.2d 720, certiorari denied 104 S.Ct. 341, 464 U.S. 935, 78 L.Ed.2d 309, post-conviction relief granted 876 F.2d 1147. 3D. Exceptions As long as the guardian has a good faith, objectively reasonable basis for beli eving that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of tel ephone conversations, the guardian may vicariously consent on behalf of the child to the recording; such vicarious consent will be exempt from liability under federal wiretapping

statute, pursuant to the consent exception. Pollock v. Pollock, C.A.6 (Ky.) 199 8, 154 F.3d 601, rehearing and suggestion for rehearing en banc denied. Business extension exception to federal wiretap statute did not permit State De partment officials and employees to secretly monitor conversation between Acting Assistant Secretary of State for Legislative Affairs and Assistant Secretary of State for Consular Affairs, concerning investigation into presidential candidate's passpor t; there was no reason presented as to need for secret monitoring nor was it shown to be routine. Berry v. Funk, C.A.D.C.1998, 146 F.3d 1003, 331 U.S.App.D.C. 62. Assistant university basketball coach was exempt from liability for violating f ederal wiretap statute by recording telephone conversations with high school recruit in absence of evidence that coach intende d to commit tort against recruit or committed any criminal act. Thomas v. Pearl, C.A.7 (Ill.) 1993, 998 F.2d 447, rehearing denie d, certiorari denied 114 S.Ct. 688, 510 U.S. 1043, 126 L.Ed.2d 655. Custodial parent's interception of telephone conversations of her minor son wit hin her home, without son's knowledge or consent, was not prohibited by Title III of Omnibus Crime Control and Safe Streets Act. Newcomb v. Ingle, C.A.10 (Okla.) 1991, 944 F.2d 1534, certiorari denied 112 S.Ct. 903, 502 U.S. 1044, 116 L.Ed.2d 804, rehearing denied 112 S.Ct. 1284, 503 U.S. 915, 117 L.Ed.2d 509. Common-law privileges protecting statements made to law enforcement agents in f urtherance of criminal investigation will not be recognized as exception to Omnibus Crime Control and Safe Streets Act, which pro hibits intentional disclosure of contents of wire communication that was obtained in violation of Act. Rodgers v. Wood, C.A.7 (Wi s.) 1990, 910 F.2d 444, rehearing denied 914 F.2d 260. Conversation on telephone extension was not personal call, but, rather, occurre d during office hours, between employees, where specialized extension connected principal office to substation and concerned rem arks about supervisory employees in their capacity as supervisors; therefore, interception of conversation fell within telephone e xtension exception to civil liability for interception of wire or oral communications. Epps v. St. Mary's Hosp. of Athens , Inc., C.A.11 (Ga.) 1986, 802 F.2d 412, rehearing denied 807 F.2d 999. Consensual interception exception to statutory requirement that officers obtain prior judicial authorization for interception of wire or oral communications existed, where officer answered ringing telephone wh ile lawfully on defendant's premises. U.S. v. Passarella, C.A.6 (Tenn.) 1986, 788 F.2d 377. Telephone lineman's interception of conversation while attempting to check nois e level on line was within exception to federal wiretapping law. U.S. v. Ross, C.A.8 (Ark.) 1983, 713 F.2d 389. Only if communication is one that exhibits required expectations of privacy doe

s exception for Federal Communications Commission, under subsec. (2) (b) of this section specifically allowing commission employees to monitor communications in normal course of their employment, come into play. U. S. v. Rose, C.A.1 (Mass.) 1982, 669 F.2d 2 3, certiorari denied 103 S.Ct. 63, 459 U.S. 828, 74 L.Ed.2d 65. This section providing that it shall not be unlawful for an operator of a switc hboard to intercept a wire communication in normal course of his employment is obviously intended to allow telephone company to int ercept and disclose calls as necessary protection of its equipment and rights. Campiti v. Walonis, C.A.1 (Mass.) 1979, 611 F.2d 3 87. Former employer, being sued for allegedly willfully and unlawfully intercepting wire and oral communications in violation of this chapter, came within exception of this section, where employer's request that te lephone company install monitoring device, which would permit employer to listen in on telephone conversations between its employ ees and its customers, was part of service rendered by phone company on request, reason for installation was management's concern ov er abusive language by irate customers when called upon to pay their bills, coupled with possible need to give better training and supervision to employees dealing with public, and installation was not done surreptitiously. James v. Newspaper Agency Corp., C.A .10 (Utah) 1979, 591 F.2d 579. This section contains no implied exception for electronic surveillance conducte d for purposes of marital litigation; hence, husband, who suspected wife of infidelity and who intercepted her telephone conv ersations, was not immune from prosecution under the statute, especially since surveillance was conducted from outside the reside nce where the telephone was located, spouses had separated prior to surveillance, husband had moved out of house and at time of s urveillance was under restraining order preventing him from "coming about" the wife. U. S. v. Jones, C.A.6 (Tenn.) 1976, 542 F.2d 661. Party exemption from prohibition against interception of wire or oral communica tion is inapplicable only if the interception is for the purpose of criminally committing any criminal or tortious act, and the e xemption applies even if the purpose of the conversation is criminal as long as the purpose of the recording is not. U. S. v. Turk, C.A.5 (Fla.) 1976, 526 F.2d 654, rehearing denied 529 F.2d 523, certiorari denied 97 S.Ct. 74, 429 U.S. 823, 50 L.Ed.2d 84. Provision that it shall not be unlawful for employee of communications common c arrier to intercept, disclose or use communication in normal course of employment while engaged in any activity which is a necessar y incident to the rendition of service is intended as an exception to provisions of this section. U. S. v. Freeman, C.A.7 (Ind.) 1 975, 524 F.2d 337, certiorari denied 96 S.Ct. 1126,

424 U.S. 920, 47 L.Ed.2d 327. The plain language and legislative history of the Federal Wiretapping Statute e vince no Congressional intent to exempt domestic relations from its scope. Campbell v. Price, E.D.Ark.1998, 2 F.Supp.2d 1186. Client's communications concerning his actual installation of wiretapping devic e, his recordings of conversations, and his disclosure of intercepted conversations to his attorneys, as opposed to any subs equent use of intercepted conversations or cover-up of alleged violations, were privileged in civil action arising from allegedly il legal wiretaps, even though client's communications with attorneys about using information from intercepted conversations to prepare and prosecute lawsuit fell within crime-fraud exception to attorney-client privilege. Sound Video Unlimited, Inc. v. Video Sh ack Inc., N.D.Ill.1987, 661 F.Supp. 1482. Where police officer who used monitored telephone at police station to make pri vate, personal telephone call denied any knowledge that line he used was being recorded, exception to this section governing interc eption of communications which allows interception of communications if one party to communication has given prior consent was inap plicable. Jandak v. Village of Brookfield, N.D.Ill.1981, 520 F.Supp. 815. Where telephone company maintained testboard where trouble reports from custome rs were handled and use of board by employees was monitored by supervisors for purpose of service quality control checks and, in p laintiff employee's case, for purpose of preventing his persistent use of testboard phone for personal calls, against which he had b een warned several times, company's legitimate interest in maintaining quality control and availability of lines brought its mo nitoring activities within exception from prohibition against interception of wire communications, contained in this secti on. Simmons v. Southwestern Bell Tel. Co., W.D.Okla.1978, 452 F.Supp. 392, affirmed 611 F.2d 342. Homeowners could not amend trespass complaint to allege violation of wiretappin g statutes by television broadcaster, where broadcaster's employee purportedly entered home as veterinary student and secret ly videotaped events in home which were subsequently broadcast, as broadcaster intercepted communication for commercial purposes, not purpose of committing tortious act or trespass. Copeland v. Hubbard Broadcasting, Inc., Minn.App.1995, 526 N.W.2d 402 , review denied. 3E. Willfully Switchboard operator and provider exception to federal wiretap statute did not permit State Department officials and employees to secretly monitor conversation between Acting Assistant Secretary of State for Le gislative Affairs and Assistant Secretary of State for Consular Affairs, concerning investigation into presidential candidate's pas sport; it was not in normal course of State Department employees' employment to engage in any monitoring contrary to Departm ent's own guidelines, and exception in question was intended to apply to inevitability that switchboard operators, when connecting c alls, would overhear small part of call, and was

not intended to authorize random monitoring. Berry v. Funk, C.A.D.C.1998, 146 F .3d 1003, 331 U.S.App.D.C. 62. Tape recording of jailed murder suspect's confession to Catholic priest did not violate Wiretap Act, as recording was made in ordinary course of jailors' duties, notwithstanding fact that recording violated Religious Freedom Restoration Act (RFRA). Mockaitis v. Harcleroad, C.A.9 (Or.) 1997, 104 F.3d 1522. For purposes of provision of statute making it crime to willfully intercept any wire or oral communication, person acts "willfully" if he knowingly or recklessly disregards known legal duty. Farroni v. Farroni, C.A.6 (Ohio) 1988, 862 F.2d 109. Civil liability for allegedly unlawful wiretapping required proof of criminal w illfulness; "willfully" within meaning of criminal prohibition against interception of wire or oral communication required employee in civil action to show intentional or reckless disregard of legal obligations by employer. Malouche v. JH Management Co., Inc., C.A.4 (S.C.) 1988, 839 F.2d 1024. Term "willfully" as used in this section has the same meaning whether liability is imposed criminally or civilly; thus, neither civil nor criminal liability can be established against any defendant without sh owing that he acted with intentional or reckless disregard of his legal obligations. Citron v. Citron, C.A.2 (N.Y.) 1983, 722 F.2 d 14, certiorari denied 104 S.Ct. 2350, 466 U.S. 973, 80 L.Ed.2d 823. Wife's allegation that husband, caused electronic recording device to be instal led on her phone and took tape recordings of conversation between wife and third parties was sufficient to raise question as to whether husband acted intentionally or in reckless disregard of his legal obligations and thus sufficiently pleaded "willf ulness" of husband's conduct to survive motion to dismiss action pursuant to electronic surveillance provisions of Omnibus Crime C ontrol and Safe Streets Act, where complaint alleged that husband played tapes thus obtained for persons other than his attor ney. Nations v. Nations, W.D.Ark.1987, 670 F.Supp. 1432. Civil action under federal statutes prohibiting illegal wiretaps or other elect ronic surveillance could be brought against media defendants who, although they did not participate in illegal surveillance, alleg edly knew that recorded conversations they were given had been illegally obtained. Natoli v. Sullivan, N.Y.Sup.1993, 606 N.Y.S. 2d 504, 159 Misc.2d 681, affirmed 616 N.Y.S.2d 318, 206 A.D.2d 841, leave to appeal denied. 3F. Intent

Criminal and civil liability is imposed under federal-wiretapping statute upon proof that defendant intentionally intercepted oral communications at issue, without showing of disregard of known legal duty, at le ast to those communications to which he was not party. Earley v. Smoot, D.Md.1994, 846 F.Supp. 451. Husband's record of telephone conversations of his wife violated federal wireta pping law, even though husband claimed that he was not aware that interception was illegal; law required only that act of recordin g be intentional, without regard to motive. Young v. Young, Mich.App.1995, 536 N.W.2d 254, 211 Mich.App. 446. 3G. Knowledge Attorney for fire insurer was not liable in damages to insureds, under federal wiretap statute, for having made use of allegedly illegally obtained tape recording in attempt to establish that insureds had comm itted fraud in connection with their claim; attorney had no knowledge of facts tending to show that tape recording was illeg ally obtained and federal court presiding over insurance claim had allowed recording into evidence. Hamed v. Pfeifer, Ind.App. 3 Dist.1995, 647 N.E.2d 669. 4. Discovery In civil action for allegedly intercepting, tape recording, and threatening to disclose contents of plaintiffs' personal telephone conversations in violation of this chapter, admission by one defendant to interc epting and recording some of plaintiffs' telephone conversations did not establish the illegality of the interception and recording so as to prohibit, under this section, disclosure of recordings to defendants' attorney, as it could not be determined whether he might effectively invoke a statutory exception to the recording, such as consent. McQuade v. Michael Gassner Mechanical & Elec. C ontractors, Inc., D.C.Conn.1984, 587 F.Supp. 1183. 4A. Disclosure Former husband's intentional disclosure of contents of telephone conversations he recorded between former wife and child to child's therapist and husband's attorney did not violate Federal Wiretapping Sta tute, where husband's recordings fell under both consent and extension phone exceptions to statute. Campbell v. Price, E.D.Ark.19 98, 2 F.Supp.2d 1186. 5. Consent Pretrial detainee impliedly consented to audiotaping of his telephone calls fro m detention center, and, thus, consent exception applied under provision of Title III of Omnibus Crime Control and Safe Streets A ct prohibiting intentional use of any electronic, mechanical, or other device to intercept any oral communication; detainee signe d consent form and was given prison manual a few days after his arrival, and detention center posted signs above telephones warni ng of monitoring and taping. U.S. v. Van Poyck, C.A.9 (Cal.) 1996, 77 F.3d 285, certiorari denied 117 S.Ct. 276, 519 U.S. 912, 1 36 L.Ed.2d 199.

Consent to have telephone communications intercepted should not casually be inf erred, but rather surrounding circumstances must convincingly show that party knew about and consented to interception in spite l ack of formal notice or deficient formal notice, in determining whether intercepted telephone conversations are admissible. U.S. v. Lanoue, C.A.1 (R.I.) 1995, 71 F.3d 966, appeal after new trial 137 F.3d 656. Employer's interception of employee telephone calls did not come within consent exception to federal and Maine wiretapping laws; although intercepted corporate officer was told that employee calls would be mon itored, officer was not told of manner in which monitoring was conducted or that he himself would be monitored. Williams v. Pou los, C.A.1 (Me.) 1993, 11 F.3d 271. "Consent to use" defense did not apply to defendant who represented husband in divorce action and who allegedly improperly used wife's recorded telephone conversations in connection with divorce action. U.S. v. Wuliger, C.A.6 (Ohio) 1992, 981 F.2d 1497, rehearing denied 999 F.2d 1090, certiorari denied 114 S.Ct. 1293, 510 U.S. 1191, 127 L.Ed.2d 647, rehearing denied 114 S.Ct. 1872, 511 U.S. 1101, 128 L.Ed.2d 492. Employee's consent to tape recording of intercepted telephone calls could not b e implied, so as to exempt employer from liability for violating wire and electronic communications interception provisions of the Omnibus Crime Control and Safe Streets Act, merely because employer warned employee that calls may be monitored to cut down on pers onal use of telephone, or because extension telephone was located in owners' residence. Deal v. Spears, C.A.8 (Ark.) 1992, 980 F.2d 1153. District court, ruling on suppression motion, did not clearly err in its factua l finding that police informant's consent to recording of his telephone conversation with drug supplier was not coerced; pol ice officer denied threatening informant with prosecution of his girlfriend, and DEA agent's testimony furnished evidence that informant cooperated out of desire for leniency for himself. U.S. v. Wake, C.A.5 (Tex.) 1991, 948 F.2d 1422, certiorari denied 112 S.Ct. 2944, 504 U.S. 975, 119 L.Ed.2d 569. Consent required for admissibility of tape recording is question of fact to be determined from totality of circumstances, and court need not submit consent issue to jury after making initial determination o f admissibility. U.S. v. Gomez, C.A.5 (Tex.) 1991, 947 F.2d 737, certiorari denied 112 S.Ct. 1504, 503 U.S. 947, 117 L.Ed.2d 642.

Although right at stake in an exclusionary hearing to prevent admission of conv ersations recorded in violation of federal wiretapping restrictions is statutory, not constitutional, Fourth Amendment prec edents determine whether party to communication consented to an interception within meaning of statute. U.S. v. Antoon, C.A.3 ( Pa.) 1991, 933 F.2d 200, rehearing denied, certiorari denied 112 S.Ct. 300, 502 U.S. 907, 116 L.Ed.2d 243. Where Government made recording of conversation between defendant and governmen t informant with consent and cooperation of informant, there was no need to inform defendant or to obtain court order. U.S. v. Barone, C.A.2 (N.Y.) 1990, 913 F.2d 46. Tenant consented to his landlady's recording of his telephone calls and, theref ore, her interception of calls did not violate federal wiretapping statute; landlady repeatedly informed tenant that all of he r incoming calls were being monitored and that blanket admonishment left no room for tenant to wonder whether his calls would b e intercepted. Griggs-Ryan v. Smith, C.A.1 (Me.) 1990, 904 F.2d 112. Absent evidence that arrestee who agreed to telephone defendant knew that call was being monitored, Government failed to carry burden of establishing consent to taping of call, as required for admission of t ape under federal wiretap statute. U.S. v. Gomez, C.A.5 (Tex.) 1990, 900 F.2d 43, rehearing denied. Electronic surveillance of attorney did not violate federal communications inte rception statute where one of parties to conversation had consented to interception; accordingly, police officers could not be held liable in civil rights action brought by attorney arising out of interception. Lewellen v. Raff, C.A.8 (Ark.) 1988, 8 43 F.2d 1103, rehearing denied 851 F.2d 1108, certiorari denied 109 S.Ct. 1171, 489 U.S. 1033, 103 L.Ed.2d 229. Inmates impliedly consented to interception of their telephone calls by using p rison telephones when they were on notice of the prison's interception policy from at least four sources. U.S. v. Amen, C.A.2 (N .Y.) 1987, 831 F.2d 373, certiorari denied 108 S.Ct. 1573, 485 U.S. 1021, 99 L.Ed.2d 889. Where defendant knew that third party would monitor his phone calls by listenin g in periodically and agreed to let her do so and did not object when she broke in and participated in conversations, he did not c onsent only to "mechanical" interceptions of his calls, but also gave her right to record calls. U.S. v. Tzakis, C.A.2 (N.Y.) 19 84, 736 F.2d 867. Government agent, a party to conversation between agent and defendant, testifie d that he gave his voluntary consent to have the conversation monitored, and therefore tape-recorded conversation was admissible pursuant to this section. U.S. v. Boley, C.A.10 (Okla.) 1984, 730 F.2d 1326. Communication is not unlawfully intercepted within meaning of this section wher e one of parties to conversation is acting under color of law or has given prior consent to interception; this section permits i ntroduction of consensual recordings and thus

controls over conflicting state eavesdropping regulations. U.S. v. McNulty, C.A .10 (Colo.) 1983, 729 F.2d 1243. Employee's knowledge of employer's capability of monitoring her private telepho ne conversations, by itself, could not be considered implied consent to such monitoring. Watkins v. L.M. Berry & Co., C.A .11 (Ala.) 1983, 704 F.2d 577. Where paid informer gave his consent before recording conversations in which he was involved, the conversations were free from warrant requirement. U.S. v. Davanzo, C.A.11 (Fla.) 1983, 699 F.2d 1097. Trial court properly admitted tapes of defendant's telephone conversations, whe re the tapes were made with the consent of the other party to the conversations. U.S. v. Jones, C.A.5 (La.) 1982, 693 F.2d 343 . Conspirator, who requested private detective to install electronic equipment on him in order to record conversation with his coconspirator, consented to the interception within meaning of this chapter, eve n though further divulging had not been authorized and even though conspirator was unaware that the detective was cooperating with the Federal Bureau of Investigation. U. S. v. Shields, C.A.11 (Fla.) 1982, 675 F.2d 1152, certiorari denied 103 S.Ct. 130, 459 U.S. 858, 74 L.Ed.2d 112, certiorari denied 103 S.Ct. 373, 459 U.S. 1015, 74 L.Ed.2d 508. No warrant was required to record conversations between defendants and governme nt informant or government agents, since either the informant or an agent was a party to or consented to the recording of the conver sations at issue. U. S. v. Howell, C.A.5 (Ga.) 1981, 664 F.2d 101, certiorari denied 102 S.Ct. 1641, 455 U.S. 1005, 71 L.Ed.2d 873. That party to telephone conversation might have hoped to benefit from his decis ion to allow government to intercept and record communication did not impair voluntariness of consent for purposes of rule forbi dding electronic surveillance. U. S. v. Salisbury, C.A.11 (Ga.) 1981, 662 F.2d 738, certiorari denied 102 S.Ct. 2907, 457 U.S. 1107 , 73 L.Ed.2d 1316; U.S. v. Osser, C.A.Pa.1973, 483 F.2d 727, certiorari denied 94 S.Ct. 457, 414 U.S. 1028, 38 L.Ed.2d 321; U.S. v . Taylor, D.C.Pa. 1979, 473 F.Supp. 65; U.S. v. Acavino, D.C.Pa.1979, 467 F.Supp. 284; Matter of Bates, Tex.1977, 555 S.W.2d 42 0. Exclusion of tape recording of defendant's conversation with informer regarding drug distribution was not required, even though tape recording did not contain all of their conversation, inasmuch as informer h ad consented to the interception and was acting under direction of government agents. U. S. v. Tousant, C.A.9 (Cal.) 1980, 619 F.2d 810.

Tape recording and all evidence concerning an alleged phone conversation betwee n codefendant and defendant subsequent to arrest were not subject to being suppressed, notwithstanding claim that there was an in sufficient showing of consent to recording of call, where there was testimony that codefendant had consented after being asked wheth er he would mind if conversation was recorded for use in court and, in addition, circumstances shown by testimony supported an inf erence of such consent. U. S. v. Axselle, C.A.10 (Kan.) 1979, 604 F.2d 1330. Once it is shown that cooperation has been undertaken, barring some affirmative evidence of will-overbearing coercive threats, participation in monitoring or recording a telephone or other conversation in wh ich informant is a participant is merely incidental to previously determined course of cooperation with law enforcement officials an d is not involuntary. U. S. v. Horton, C.A.7 (Ill.) 1979, 601 F.2d 319, certiorari denied 100 S.Ct. 287, 444 U.S. 937, 62 L.E d.2d 197. Consent of participant in wiretapped telephone conversation was not rendered in voluntary, so as to make intercepted communication inadmissible during prosecution of other participant, on theory that it was coer ced by grant of immunity to first participant and by such participant's attorney's advice. Cooper v. U. S., C.A.4 (Md.) 1979, 594 F.2d 12. Public disclosure after determination by court in pretrial hearing that interce pted communications had been lawfully obtained would not frustrate purposes of this chapter since, once court determines that c ommunications had been obtained by consent of parties, disclosure is not forbidden by this chapter. U. S. v. Cianfrani, C.A.3 (Pa.) 1978, 573 F.2d 835. Tape recordings were not illegal wiretaps where one party to conversation conse nted to the tapes being made. U. S. v. Wright, C.A.1 (Mass.) 1978, 573 F.2d 681, certiorari denied 98 S.Ct. 2857, 436 U.S. 949, 56 L.Ed.2d 792; U.S. v. Bradford, D.C. Conn.1980, 496 F.Supp. 366. Whatever may have been person's motive in cooperating with the Government, such person, whose attorney suggested recordings during course of plea negotiations, who only taped conversations that Government direct ed him to record, who was supplied recording equipment, and from whom, after each conversation, agent took custody of equipme nt and original tapes, was "acting under color of law" and gave prior consent to interception of his conversations with defendant, thus rendering tape recordings of those conversations admissible in prosecution for conspiracy to commit mail fraud, mai l fraud and causing individual to travel in interstate commerce with intent to promote an unlawful activity. U.S. v. Craig, C.A.7 (Ill.) 1977, 573 F.2d 455, certiorari denied 99 S.Ct. 82, 439 U.S. 820, 58 L.Ed.2d 110, certiorari denied 99 S.Ct. 83, 439 U. S. 820, 58 L.Ed.2d 110. Consent of government informant to official eavesdropping between conversations between informant and defendant vitiates claim of illegality. U. S. v. Finley, C.A.8 (Mo.) 1978, 571 F.2d 430, certiorari denied 9

8 S.Ct. 2240, 436 U.S. 907, 56 L.Ed.2d 406. Both Drug Enforcement Administration agents and informer acting at their direct ion were acting "under color of law" in recording informer's conversation with defendants, and thus recording of such conversation s with the consent of the informer did not violate this chapter. U. S. v. Rich, C.A.8 (Mo.) 1975, 518 F.2d 980, certiorari denied 96 S.Ct. 3193, 427 U.S. 907, 49 L.Ed.2d 1200. Consent exception to Federal Wiretapping Statute, which permits party to record telephone conversations if one party to conversation has consented, applied to former husband's recording of conversatio ns between former wife and minor child, thus precluding wife's action against husband under statute, where husband was custod ial parent with power to consent for child, and child's crying and depressed behavior following conversations led husband to bel ieve that they were harmful to her. Campbell v. Price, E.D.Ark.1998, 2 F.Supp.2d 1186. Defendants voluntarily consented to recording of their telephone calls from det ention facility, so as to make recordings admissible against defendants; no one forced defendants to make calls, there was no possibility that defendants were cajoled into making calls with false promises, as defendants had already been arrested and ch arged, defendants were informed that calls could be monitored and taped, and defendants signed forms acknowledging that they had rea d or been read provisions indicating that calls might be monitored and recorded. U.S. v. Rohlsen, D.Virgin Islands 1997, 968 F. Supp. 1049, affirmed 185 F.3d 864, certiorari denied 120 S.Ct. 425, certiorari denied 120 S.Ct. 433. Consent may be actual or implied for purposes of consent exception to Omnibus C rime Control and Safe Streets Act of 1968. Ali v. Douglas Cable Communications, D.Kan.1996, 929 F.Supp. 1362. Fact that codefendant's consent to cooperate with law enforcement officials was product of violation of his Fourth Amendment rights did not vitiate his consent to electronic surveillance of his telephone c onversations with defendant and, thus, defendant was not entitled to suppression of audiotapes of those conversations. U.S. v. R estrepo, E.D.N.Y.1995, 890 F.Supp. 180. Interception of telephone conversation by police officer is not actionable wher e one party to the conversation gave prior consent to the interception, and that consent need not be express, but, rather, can be i nferred from the surrounding circumstances. In re State Police Litigation, D.Conn.1995, 888 F.Supp. 1235, appeal dismissed 88 F.3d 111. Claim for violation of federal and state wiretapping statute could not be predi cated on actions of producers of television show in sending undercover patients into eye clinic where conversations with doctors wer e recorded without doctors' consent; since plaintiffs could not make out claim for trespass or for invasion of privacy, pla intiffs could not establish that oral

communications were intercepted for tortious purpose and in course of tortious c onduct. Desnick v. Capital Cities/ABC, Inc., N.D.Ill.1994, 851 F.Supp. 303, affirmed in part, reversed in part 44 F.3d 1345, on remand. Police officers who used police commission's telephones impliedly consented to recording of their conversations, and commission thus was not liable under Omnibus Crime Control and Safe Streets Act; officers used telephones regularly despite facts that warning labels were affixed to telephones, that memoranda warned that calls woul d be recorded, and that employees regularly talked about recording of their phone calls. George v. Carusone, D.Conn.1994, 849 F.Su pp. 159. Implied consent existed to record state prison inmate's telephone conversations for use in criminal prosecutions, even though inmate was never told that use of telephone system constituted consent to be rec orded or that prison could use tapes as incriminating evidence and he thought he was being monitored but not recorded, w here inmate was informed that prison system had ability to monitor telephone calls, and on several occasions inmate either warne d parties he called of monitoring or used code to talk about alleged criminal activity during telephone conversations. U.S. v. Gr een, W.D.N.Y.1994, 842 F.Supp. 68, affirmed 80 F.3d 688, certiorari denied 117 S.Ct. 319, 519 U.S. 938, 136 L.Ed.2d 233, certiorari denied 117 S.Ct. 373, 519 U.S. 955, 136 L.Ed.2d 262. As long as guardian has good faith basis that is objectively reasonable for bel ieving that it is necessary to consent on behalf of her minor children to taping of telephone conversations, vicarious consent will be permissible, and will serve as defense to claim under federal wiretapping statutes, in order for guardian to fulfill her statuto ry mandate to act in best interest of children. Thompson v. Dulaney, D.Utah 1993, 838 F.Supp. 1535, 139 A.L.R. Fed. 765. Audio surveillance of governmental agent's conversation in hotel room with defe ndants charged with conspiracy to commit interstate murder for hire was permissible since governmental agent voluntarily consented t o and participated in audiotaping. U.S. v. Cox, D.Md.1993, 836 F.Supp. 1189. Inmate does not impliedly consent to the interception of telephone calls throug h use of telephone in prison setting with notice that it is being monitored. U.S. v. Cheely, D.Alaska 1992, 814 F.Supp. 1430, af firmed 21 F.3d 914, affirmed 36 F.3d 1439. Clients who taped telephone conversations with stockbroker without the stockbro ker's consent would be enjoined, together with their attorneys and agents, from further disclosing the contents of the tapes an d/or transcripts to any third-party persons. Menda Biton v. Menda, D.Puerto Rico 1992, 796 F.Supp. 631, corrected 812 F.Supp. 282. Under wiretap statute there is no liability where party to communication interc epts communication by consent or under color of law; no cause of action may be maintained against private actors where they are ordered by government authorities to intercept communications. Manufacturas Intern., Ltda v. Manufacturers Hanover Trust Co., E.D.N.Y.1992, 792 F.Supp. 180, affirmed 47 F.3d

1159, certiorari denied 115 S.Ct. 2557, 515 U.S. 1132, 132 L.Ed.2d 811. Employers' occasional complaints about employees' excessive telephone usage and threats to monitor calls and put in pay phone fell short of notice to employees of tapped phone, and therefore implied consent exce ption to liability under Omnibus Crime Control and Safe Streets Act was inapplicable with respect to employers who taped and disclo sed contents of employee's telephone conversations with her boyfriend. Deal v. Spears, W.D.Ark.1991, 780 F.Supp. 618, affirmed 980 F.2d 1153. Neither federal statute which outlaws interception and disclosure of wire or or al communications and barred activities such as wiretapping and eavesdropping through use of electronic surveillance, but did no t outlaw authorized use of computer data, nor similar Minnesota statute applied to claims that computer system supplier and/or agricultural equipment supplier wrongfully gained access to computer systems of agricultural equipment dealers that leased compute rs and misappropriated their property, where both dealer-lessees allowed computer supplier access to their computer systems pursua nt to contracts with supplier. American Computer Trust Leasing v. Jack Farrell Implement Co., D.Minn.1991, 763 F.Supp. 1473, affi rmed and remanded 967 F.2d 1208, certiorari denied 113 S.Ct. 414, 506 U.S. 956, 121 L.Ed.2d 338. Informant's continuing cooperation with the Government and knowledge of the rec ording was tantamount to his consent to record conversations he had with defendant and therefore recordings of the conversation s were admissible. U.S. v. Burford, S.D.N.Y.1991, 755 F.Supp. 607. Evidence supported inference that party to telephone call with defendant gave r equisite consent to interception of call by law enforcement officers; agreed to cooperate with agents and to place tape-recorde d call to defendant, party determined substantially what he would say to defendant, and placed call knowing that conversation was be ing recorded. U.S. v. Abreu, D.Colo.1990, 730 F.Supp. 1018, affirmed 935 F.2d 1130, certiorari denied 112 S.Ct. 271, 502 U.S. 897, 116 L.Ed.2d 224. Test for consent to interception of wire communication by one participating in the communication is less rigorous than consent required for waiver of a constitutional right and requires only that individual proceed despite his or her understanding that the conversation is being recorded, and thus promises of leniency do not vitiate con sent under wiretap statute. U.S. v. Edmond, D.D.C.1989, 718 F.Supp. 988. Defendant's consent to tape recording was not prerequisite to admission of tape recorded confession in murder prosecution; defendant spoke without any expectation of privacy to law enforcement officers w ho consented to the taping. Roller v. McKellar, D.S.C.1989, 711 F.Supp. 272, appeal dismissed 891 F.2d 287.

Pretrial detainee's use of telephone after ample notice of detention center's i nterception system constituted implied consent to monitoring of his conversation, within meaning of statutory exception to warrant requirement; detainee had notice of monitoring system through regulations published in Code of Federal Regulations, center's ad mission and orientation procedures, and notices placed on all pay telephones in center. U.S. v. Montgomery, S.D.N.Y.1987, 675 F .Supp. 164, affirmed 860 F.2d 15, certiorari denied 109 S.Ct. 846, 488 U.S. 1033, 102 L.Ed.2d 978. Unavailability of a consenting party to a conversation does not prevent proof o f consent to the recording from being demonstrated by other means. U.S. v. Traficant, N.D.Ohio 1983, 558 F.Supp. 996. This chapter permits the use in federal courts of wiretaps without a warrant wh en one party consents, regardless of whether state law would prohibit use of such wiretaps and notwithstanding participation of sta te law enforcement officials. U. S. v. Proctor, D.C.Hawai'i 1981, 526 F.Supp. 1198, affirmed 694 F.2d 200, certiorari denied 103 S.Ct. 3085, 462 U.S. 1118, 77 L.Ed.2d 1347. Evidence that person was asked to cooperate with FBI and grand jury investigati on of defendants, that, after consulting with his wife, he agreed to do so, that he asked to have recording device put on his tele phone so that he could take down any conversations he had with defendants "in black and white," and that he consented when FBI agen ts asked him to wear a body recording and transmitting device demonstrated that the person had given his prior, voluntary consent to the electronic recording and transmission of his conversations with defendants. U. S. v. Slawik, D.C.Del.197 5, 408 F.Supp. 190, affirmed 564 F.2d 90. Consent of informer to monitoring and recording of his telephone conversations with defendants was voluntary, and thus the interceptions were valid and the fruits thereof admissible, though informer acce pted monetary assistance when offered by federal agents, where he was not threatened or taken advantage of and was not under the influence of drugs and visited agents' offices on his own initiative, allegedly out of concern for his family and his objection to involvement of his "common law brother-in-law" and his associates in narcotics trafficking. U. S. v. Baynes, E.D.Pa.1975, 400 F.Su pp. 285, affirmed 517 F.2d 1399. Where informant consented to monitoring by Drug Enforcement Administration agen ts of his telephone call to defendant, during course of which call defendant agreed to sell informant lysergic acid diethylami de, agents' interception of the call was not prohibited by this chapter. U. S. v. Beni, E.D.Wis.1975, 397 F.Supp. 1086. Taping of conversations between defendants and F.B.I. agent and between defenda nts and third parties who worked with F.B.I. and who consented to taping was not unlawful under this Act which provides that it i s not unlawful for a person acting under color of law to intercept wire or oral communications where such person is party to conve rsation or where one party gives consent to interception. U. S. v. Merritts, E.D.Ill.1975, 387 F.Supp. 807, reversed on oth er grounds 527 F.2d 713.

Investigators who overheard accused's telephone communication with call recipie nt, with prior consent of call recipient, did not unlawfully intercept the communication. U.S. v. Parrillo, CMA 1992, 34 M.J. 112 . Federal and state statutes governing interception of oral and wire communicatio ns and prohibiting use of illegally intercepted communications do not apply where one of parties to communication consents to it s interception. State v. Biernacki, Neb.1991, 465 N.W.2d 732, 237 Neb. 215. Omnibus Crime Control and Safe Streets Act of 1968 does not prohibit person act ing under color of law and without judicial authorization to intercept communication where one party consents to interceptio n. State v. Cisneros, Wash.App. Div. 1 1992, 821 P.2d 1262, 63 Wash.App. 724, review denied 832 P.2d 487, 119 Wash.2d 1002. Interception of conversation between defendant and teenager assisting police of ficers in making controlled drug buy was lawful, where teenager fully cooperated with officers in making controlled buy and freel y and voluntarily consented to wearing wiretap device in exchange for dismissal of traffic tickets. Luna v. State, Okla.Crim.A pp.1991, 815 P.2d 1197. Parent has no right on behalf of his or her children to give consent under fede ral wiretap statute or West Virginia Wiretapping and Electronic Surveillance Act to have children's conversations with the other parent recorded while the children are in the other parent's house. West Virginia Dept. of Health and Human Resources ex rel. Wrigh t v. David L., W.Va.1994, 453 S.E.2d 646, 192 W.Va. 663. State was entitled to use evidence of intercepted telephone conversation in see king search warrant against defendant upon proof that other person to conversation agreed to make telephone call with full knowle dge that it would be tape recorded; under Omnibus Crime Control and Safe Streets Act, further evidence of other person's consent w as not required where there was no allegation that he was coerced into consenting to wiretap. State v. Whitt, W.Va.1990, 400 S.E.2 d 584, 184 W.Va. 340. 6. Admissibility of evidence Tape of conversation between defendant and ex-wife was admissible under Omnibus Crime Control and Safe Streets Act, despite defendant's contention that ex-wife made tape in order to blackmail him, in ligh t of finding that ex-wife's purpose in taping conversation was to turn tape over to government in hope of obtaining better dea l for herself. U.S. v. Zarnes, C.A.7 (Ill.) 1994, 33 F.3d 1454, rehearing and suggestion for rehearing en banc denied, certiorari denied 115 S.Ct. 2286, 515 U.S. 1126, 132 L.Ed.2d

288. Tape recorded telephone calls, made in order to obtain accurate records of conv ersations, are admissible under Omnibus Crime Control and Safe Streets Act even if recording is made in hopes of producing evi dence of an illegal conspiracy. U.S. v. Dale, C.A.D.C.1993, 991 F.2d 819, 301 U.S.App.D.C. 110, rehearing denied, certiorari d enied 114 S.Ct. 286, 510 U.S. 906, 126 L.Ed.2d 236, certiorari denied 114 S.Ct. 650, 510 U.S. 1030, 126 L.Ed.2d 607. In prosecution of sheriff for intentionally intercepting telephone conversation s of third parties without their knowledge or consent, trial court properly excluded, as tangential, defendant's proffered tes timony of his troubles with previous sheriff, offered to establish harassing phone calls made to him as proper motive for his automatic taping. U.S. v. Townsend, C.A.2 (Vt.) 1993, 987 F.2d 927, 122 A.L.R. Fed. 825. Liability under Title III for use and disclosure of information obtained from c ontents of intercepted communications requires more than mere proof of intentional conduct, which is requirement for liability for i ntercepting or procuring another to intercept communications; to establish liability for use or disclosure, plaintiff must de monstrate that defendant knew that information used or disclosed came from intercepted communication, and sufficient facts concernin g circumstances of interceptions such that defendant could, with presumed knowledge of law, determine that interception was prohibited in light of Title III. Thompson v. Dulaney, C.A.10 (Utah) 1992, 970 F.2d 744, on remand 838 F.Supp. 1535, 139 A.L.R . Fed. 765. Under federal law, federal officers have authority to record conversations defendant by means of agent wearing "wire" so that, in federal prosecution, wiretap evidence would not be excluded simply esult of possibility that evidence would be inadmissible under Massachusetts law requiring both parties to conversation onsent to use of wire. U.S. v. Pratt, C.A.1 (Mass.) 1990, 913 F.2d 982, certiorari denied 111 S.Ct. 681, 498 U.S. 1028, L.Ed.2d 673. with as r to c 112

In federal prosecution for conspiracy to kill a government witness, tape record ings made by state authorities of conversations between government informant and defendants' coconspirator, to which only inform ant consented, were admissible, notwithstanding that such evidence would have been inadmissible under Wisconsin law in state cou rt since no court order permitting tape recording was obtained. U.S. v. D'Antoni, C.A.7 (Wis.) 1989, 874 F.2d 1214. Defendant failed to establish that a tape recording made by a participant in te lephone conversation involving the defendant was made for purpose of committing criminal or tortious act and, therefore, tape rec ording was admissible. U.S. v. Truglio, C.A.4 (W.Va.) 1984, 731 F.2d 1123, certiorari denied 105 S.Ct. 197, 469 U.S. 862, 83 L .Ed.2d 130. Notwithstanding that government agents were not present when informant recorded conversations or that informant had control over on-and-off switch to equipment, informant was "acting under color of law" within

purview of subsec. (2)(c) of this section governing electronic surveillance and, as such, recorded conversations could be disclosed to grand jury. U.S. v. Haimowitz, C.A.11 (Fla.) 1984, 725 F.2d 1561, certiorari denied 105 S.Ct. 563, 469 U.S. 1072, 83 L .Ed.2d 504. Fact that two tapes of defendant's telephone conversations were inaudible did n ot render the remaining four tapes, which were clearly audible and complete, so untrustworthy as to be inadmissible. U.S. v. J ones, C.A.5 (La.) 1982, 693 F.2d 343. Since undercover informer, who was employed by Alcohol, Tobacco and Firearms Bu reau and assisted Drug Enforcement Administration, consented to recording of his conversations with defendant and acted under color of law the recording was valid under federal law, and taped conversations were properly admitted in drug prosecution and fact that informer was an individual paid by federal government for his undercover work, rather than state law enforcement officer wo rking at direction of FBI, did not affect his "under color of law" status. U. S. v. Shedan, C.A.5 (Fla.) 1981, 651 F.2d 336. To be admissible, tape recordings of conversations of a defendant need only sat isfy this chapter and requirements of U.S.C.A. Const. Amend. 4. U. S. v. Zemek, C.A.9 (Wash.) 1980, 634 F.2d 1159, certiorari denied 101 S.Ct. 1359, 450 U.S. 916, 67 L.Ed.2d 341, certiorari denied 101 S.Ct. 1525, 450 U.S. 985, 67 L.Ed.2d 821, certiorari denied 101 S.Ct. 3031, 452 U.S. 905, 69 L.Ed.2d 406. Evidence of proposed break in by one defendant was relevant and admissible, in prosecution for illegal wiretapping, where defendant was brought into group by another defendant both to perform wiretap an d to commit the break in, and defendants' discussions about the proposed break in were intertwined with conversations abou t the wiretapping. U. S. v. Lentz, C.A.5 (Tex.) 1980, 624 F.2d 1280, rehearing denied 632 F.2d 894, certiorari denied 101 S.Ct. 1696, 450 U.S. 995, 68 L.Ed.2d 194. Tape recordings which are only partially unintelligible are admissible unless t hose portions are so substantial as to render the recording as a whole untrustworthy and determination as to trustworthiness of ta pe recording is left to sound discretion of trial judge. U. S. v. Llinas, C.A.5 (Fla.) 1979, 603 F.2d 506, certiorari denied 100 S.Ct. 1030, 444 U.S. 1079, 62 L.Ed.2d 762. In prosecution for electronic eavesdropping, trial court did not err in admitti ng testimony of alleged coconspirator to the effect that he had become totally and mentally disabled as a result of his concern over the illegal acts which he had committed at defendant's discretion, since alleged coconspirator only testified that he suffe red "mental anguish" from "worry" over having "violated the law," and details of his mental condition were explored at length by defendant's counsel in cross-examination. U. S. v. Duncan, C.A.4 (N.C.) 1979, 598 F.2d 839, certiorari denied 100 S.Ct. 148, 444 U.S. 871, 62 L.Ed.2d 96.

Evidence that district court stated that it could be inferred that tape recordi ng system had been installed in presidential offices at the direction of the President, that the tape recordings were made at the direction of the President, and that the President consented to the interception of oral communications demonstrated that trial court based its decision to admit the tape recordings upon an implicit finding that the President had directed the installa tion of the recording equipment and had thereby consented to the interception of the conversations for purposes of this chapter. U. S. v. Haldeman, C.A.D.C.1976, 559 F.2d 31, 181 U.S.App.D.C. 254, certiorari denied 97 S.Ct. 2641, 431 U.S. 933, 53 L.Ed.2d 250, rehearing denied 97 S.Ct. 2992, 433 U.S. 916, 53 L.Ed.2d 1103. Where Canadian wiretaps were being used to gather information about gambling an d Canadian officials in good faith discarded those tapes which were noninformative, and defendants made no showing that those which were destroyed were relevant to alleged drug conspiracy or contained any exculpatory material, failure of Canadian police to keep complete transcripts of thousands of conversations recorded over three-year period did not require exclusion of 32 wh ich were introduced in prosecution for conspiracy to import cocaine and for receiving, concealing and facilitating transportation and concealment of cocaine. U. S. v. Cotroni, C.A.2 (N.Y.) 1975, 527 F.2d 708, certiorari denied 96 S.Ct. 2226, 426 U.S. 906, 48 L.Ed.2d 830. Where telephone company is authorized to monitor phone and to divulge existence of illegal calls and fact that they were completed (the salutations), such authorized disclosures are admissible in court. U. S. v . Clegg, C.A.5 (Tex.) 1975, 509 F.2d 605. Where government undercover agent made warrantless recording of telephone conve rsation between himself and defendant, defendant's expectations of privacy were not justified or protected by U.S.C.A. Const. Amend . 4 and recording was admissible as evidence during prosecution of defendant on drug-related charges. U. S. v. Santillo, C.A.3 (Pa. ) 1975, 507 F.2d 629, certiorari denied 95 S.Ct. 1960, 421 U.S. 968, 44 L.Ed.2d 457. Where tape recording of conversation between first defendant and co- participan t implicated first defendant only and trial court instructed that the conversation was admissible only against first defendant, se cond defendant was not prejudiced by the admission of the taped conversation. U. S. v. Rangel, C.A.5 (Tex.) 1974, 488 F.2d 871, ce rtiorari denied 94 S.Ct. 2386, 416 U.S. 984, 40 L.Ed.2d 760. Where the Government had an independent source for evidence of defendant's invo lvement in importation and conspiracy to possess heroin, evidence of defendant's meeting with person who imported the heroin and of what transpired thereafter was properly admitted even if there was a wrongful use of wire tap from which the Government gained so me information, where contents of conversation and of bugged telephone conversation were not incriminating or offered in evidence. U. S. v. San Martin, C.A.2 (N.Y.) 1972, 469 F.2d 5, certiorari denied 93 S.Ct. 1388, 410 U.S. 934, 35 L.Ed.2d 598.

Warrantless recording of conversation with consent of one of the parties may be admitted into evidence in federal prosecution, provided that Government introduces clear and convincing evidence of authenticit y and accuracy of the recording. U.S. v. Seibert, E.D.Pa.1991, 779 F.Supp. 366. Tape recording of telephone conversation between wife and private investigator she had hired to observe husband was admissible in divorce action; such taping, done in course of marital dispute, did not rise to level of criminal conduct proscribed by federal criminal wire tap statute. Robinson v. Robinson, La.App. 2 Cir.1986, 499 So.2d 152. 6A. Weight and sufficiency of evidence Evidence supported finding that counsel knew or had reason to know that client' s interceptions of employee telephone calls violated federal wiretapping statute, thereby rendering counsel liable for discl osure and use of contents of intercepted communications; good faith defense did not apply where any belief on counsel's part that statutory exceptions applied was premised only upon mistakes of law. Williams v. Poulos, C.A.1 (Me.) 1993, 11 F.3d 271. Ownership of home and telephone by wife's parents and their conduct in hiring l awyers and experts for wife's custody suit were not basis for holding them liable to husband under Title III for wife's interception from home of husband's telephone conversations with child. Thompson v. Dulaney, C.A.10 (Utah) 1992, 970 F.2d 744, on remand 83 8 F.Supp. 1535, 139 A.L.R. Fed. 765. There was sufficient factual basis to find defendants in violation of section o f wiretap statute prohibiting interception of oral communications through use of a device which transmits communications by radio; defendants allegedly used an FM wireless miniature microphone to intercept and record oral communications between participants in c losed executive session of city council. U.S. v. Anaya, C.A.9 (Cal.) 1985, 779 F.2d 532. In prosecution for conspiracy to import and possess cocaine with intent to dist ribute, there was sufficient evidence to support district court's finding that coconspirator consented to interception of his con versations with defendant, notwithstanding contention that inherently coercive nature of arrest and interrogation of cocons pirator, when combined with fact that coconspirator was alien unaccustomed to United States legal system, established lack of consen t. U. S. v. Llinas, C.A.5 (Fla.) 1979, 603 F.2d 506, certiorari denied 100 S.Ct. 1030, 444 U.S. 1079, 62 L.Ed.2d 762. Affidavits of FBI stating that, other than the one consensual monitoring of def endant's ransom telephone conversation, neither the named defendant nor any of his known aliases was ever monitored by any electroni c device of the FBI sufficiently negated the use of

illegal wiretaps. U. S. v. Van Orsdell, C.A.2 (N.Y.) 1975, 521 F.2d 1323, certi orari denied 96 S.Ct. 796, 423 U.S. 1059, 46 L.Ed.2d 650. Wiretap of home telephone of former chief of the National Security Council Poli cy Planning Group until former chief lost status as consultant with top secret security clearance was objectively reasonable due to concern with national security and was within qualified immunity of former national security advisor and former chief administ rative aide to President, even though former chief resigned approximately eight months before losing status as consultant, even if former chief was not intentionally leaking information, and even if conversations reported by Federal Bureau of Investigati on involved matters of political interest; former chief had increasing motivation to leak and possessed insider knowledge making h im potential source of leaks that continued to plague foreign policymaking; and wiretap did produce information relative to le aks. Halperin v. Kissinger, D.D.C.1989, 723 F.Supp. 1535. On motion to suppress evidence obtained in wiretap, evidence established that p erson with whom defendant had had telephone conversations had given prior written consent to monitoring and recording conver sations, that such consent had not been obtained by promises, force, threats or coercion but had been given freely, voluntarily and intelligently and that owner of telephone involved had also given prior consent to it being used, monitored and recorded. U. S. v. Bryson, W.D.Okla.1975, 418 F.Supp. 818. 7. Party to communication Government's alleged failure to prove that either party to tape-recorded teleph one conversation consented to interception was irrelevant to determining admissibility of tape recording where interceptor was party to communication. U.S. v. Truglio, C.A.4 (W.Va.) 1984, 731 F.2d 1123, certiorari denied 105 S.Ct. 197, 469 U.S. 862, 83 L .Ed.2d 130. A person not acting under color of state law may without violating this chapter , intercept a telephone call to which he is a party unless purpose of the interception is to commit an act that is criminal or torti ous under federal or state law or any other injurious act. By-Prod Corp. v. Armen-Berry Co., C.A.7 (Ill.) 1982, 668 F.2d 95 6. Subsec. (11) of this section, defining "aggrieved person" to mean a person who was a party to any intercepted wire or oral communication of person against whom the interception was directed does not broa den rule 41, Federal Rules of Criminal Procedure, Title 18, of standing provided for in section of search and seizure rule of crim inal procedure relating to U.S.C.A. Const. Amend. 4 motions to suppress; thus, defendant may move to suppress fruits of a wiretap o nly if his privacy was actually invaded, that is, if he was a participant in an intercepted conversation or if such conversation o ccurred on his premises. U. S. v. King, C.A.9 (Cal.) 1973, 478 F.2d 494, certiorari denied 94 S.Ct. 111, 414 U.S. 846, 38 L.Ed .2d 94, certiorari denied 94 S.Ct. 2628, 417 U.S. 920, 41 L.Ed.2d 226.

Where journalist is party to conversation, recording of such a conversation for news gathering purposes is not "criminal or tortious act" within meaning of federal statute, under which interception of wir e or oral communications by party in conversation is not unlawful unless interception is for purpose of committing criminal or tor tious act. Sussman v. American Broadcasting Companies, Inc., C.D.Cal.1997, 971 F.Supp. 432, affirmed 186 F.3d 1200, petition for certiorari filed. Even if an assistant basketball coach at a university was not acting under colo r of law for purposes of federal wiretapping statute when he recorded a conversation with a student he was attempting to recr uit, the basketball coach did not violate the federal wiretapping statute by making the recording; the coach made the recordi ng and passed it on to the National Collegiate Athletic Association (NCAA) so that the NCAA could conduct an investigation, the assistant coach's conduct was not unlawful, and the coach was a party to the conversation. Thomas v. Pearl, C.D.Ill.1992, 793 F .Supp. 838, affirmed 998 F.2d 447, rehearing denied, certiorari denied 114 S.Ct. 688, 510 U.S. 1043, 126 L.Ed.2d 655. Even though there was no evidence that recipient of telephone call from police officer on monitored telephone had any reason to know that conversation might be recorded, where officer making unauthorized tele phone call had notice that call was monitored, recipient of telephone call was barred from recovery in action recipient brought under this section. Jandak v. Village of Brookfield, N.D.Ill.1981, 520 F.Supp. 815. Informer who acted under supervision of government investigators was acting und er color of law, within this section. U.S. v. Marcello, E.D.La.1981, 508 F.Supp. 586, affirmed 703 F.2d 805, rehearing denied 707 F.2d 515, rehearing denied 708 F.2d 720, certiorari denied 104 S.Ct. 341, 464 U.S. 935, 78 L.Ed.2d 309, post-conviction r elief granted 876 F.2d 1147. One who is party to telephone conversation may repeat it verbatim without the u se of recording device and not violate this section prohibiting wire interception and interception of oral communications. Smith v. Wunker, S.D.Ohio 1972, 356 F.Supp. 44. Conversations recorded by party to communication were admissible under state an d federal wiretap laws. State v. Cyran, Me.1991, 586 A.2d 1238. Police officer who attached suction cup of an induction coil to back of receive r of telephone and inserted the other end of induction coil into microphone jack of a tape recorder did not violate federal a ct prohibiting interception of telephone calls as well as former New Jersey wiretap statute, N.J.S.A. 2A:121-3, subds. a, c, 146-1 , because officer's acquisition of telephonic communications requesting placing of bets resulted from answering telephone when it rang, and since officer could legally receive

the in-coming calls and as a party thereto testify concerning them, tape recordi ngs of the conversations were properly admitted in prosecution for allowing use of premises for conduct of business of lottery and working for a lottery. State v. Vizzini, N.J.Super.A.D.1971, 278 A.2d 235, 115 N.J.Super. 97. Police officer did not violate statute providing that person who intentionally intercepts any wire, oral or electronic communication is subject to criminal or civil liability by answering ringing mob ile phone after arresting defendant; statute exempted interception by "person acting under color of law" where such person is party to communication, officer's presence in vehicle was lawful following defendant's arrest, and in answering phone, officer was acting under color of law. People v. Lucas, Mich.App.1991, 470 N.W.2d 460, 188 Mich.App. 554, appeal denied 478 N.W.2d 165, 439 Mich. 888. Prohibitions under this section against wiretapping of telephone conversations were not applicable where person recording conversation was an undercover agent and one of the parties to the conversation. State v. Irving, Kan.1982, 644 P.2d 389, 231 Kan. 258. Where one person is party to telephone conversation, such person has lawful aut hority to record, or permit authority to record, contents of conversation for any legitimate purpose. Pearson v. State, Okla.Cri m.App.1976, 556 P.2d 1025, appeal dismissed, certiorari denied 97 S.Ct. 2644, 431 U.S. 935, 53 L.Ed.2d 252. 8. Overhearing of oral communication Where an employee's supervisor had particular suspicions about confidential inf ormation being disclosed to a business competitor, had warned employee not to disclose such information, and knew that a particular telephone call was with an agent of the competitor, it was within the ordinary course of business for the supervisor to listen in on an extension phone for at least as long as the call involved the type of information he feared was being disclosed and extension telephone exception was applicable such that there was no violation of the prohibition against wiretapping and elec tronic surveillance contained in this section. Briggs v. American Air Filter Co., Inc., C.A.5 (Ga.) 1980, 630 F.2d 414. Officers executing search warrant did not improperly "intercept" any "wire, ora l, or electronic communication" when they overheard answering machine during their search of premises; officer simply overheard cle arly audible transmissions while they were lawfully in same room with answering machine. U.S. v. Upton, S.D.Ohio 1991, 763 F.Supp. 2 32. Fact that, on certain of bugging tapes, both person making telephone call and t he caller could be heard did not establish that there was illegal wiretap bugging telephone conversation itself, in view of test imony and demonstration establishing that phenomenon of caller's faint voice being heard could be explained by one of the bugs being in base of telephone itself, so that, if earpiece was held slightest distance from the ear, words of caller would be audi ble in room and picked up by the bug. U. S. v.

Williams, S.D.N.Y.1981, 527 F.Supp. 859. Overhearings of conversations by use of roadblock party line phone did not fail to constitute an interception under this section on theory that some of persons overheard were illegally in possession of trading post and town on Indian Reservation. U. S. v. Banks, D.C.S.D.1974, 374 F.Supp. 321. Where conversations in adjacent hotel room could be heard in defendant's room, by the unassisted ear, defendant recorded conversations by using a cassette- type recorder with a standard microphone no m ore sensitive than the human ear and there was no question of contrivance by defendant and defendant did not eavesdrop in a positi on where an individual would not normally be expected and did not place any device in an unauthorized place, defendant could not be found guilty of interception of oral communication in violation of this chapter. U. S. v. Carroll, D.C.D.C.1971, 337 F.Supp. 1260. Recording of telephone conversation by police was immaterial where the overhear ing was itself legal. State v. McCartin, N.J.Super.L.1975, 342 A.2d 591, 135 N.J.Super. 81. No interception of defendant's conversation with his counsel occurred, for purp oses of determining whether defendant's refusal to take breath test would be suppressed, where, although officer refused to leave d efendant alone to talk with his attorney by phone, officers were talking with each other and did not overhear defendant's end of co nversation. State v. Myers, Ohio App. 4 Dist.1990, 586 N.E.2d 155, 66 Ohio App.3d 717. Where telephone operators listened to telephone conversation between defendant, who was subsequently accused of murder, and wife of deceased for 15 minutes for no purpose other than curiosity, such action by t he operators was not in ordinary course of business of telephone company, and thus was willful interception of wire or oral communic ation within meaning of his chapter proscribing such activity. State v. Dwyer, Ariz.App.1978, 585 P.2d 900, 120 Ariz. 291. Where motel office telephone switchboard buzzer and light indicated a telephone call to office from room 5 which had been rented to decedent, manager of motel answered telephone with inquiry "Can I help you?", but received no response, motel manager heard a "very loud disturbance" in the room including "cussing and fighting and calling each other names," motel manager then made a tape recording at telephone switchboard of conversations and sounds of room as they w ere received over the telephone from room 5, there was no unlawful "intercept," and tape recording was not inadmissible as a violat ion of this chapter prohibiting interception of telephone calls. Williams v. State, Okla.Crim.App.1973, 507 P.2d 1339.

8A. Devices Use of pager clones to intercept numeric transmissions to suspect's digital dis play pagers was unauthorized interception of electronic communications under Electronic Communications Privacy Act (ECPA) as a matter of law. Brown v. Waddell, C.A.4 (N.C.) 1995, 50 F.3d 285. Telephone company's use of a snifter in investigation of illegal use of blue bo x did not violate this section, since a snifter only records each telephone emission of a 2,600 cycle tone, and is incapable of making an aural acquisition of communications. U. S. v. Bowler, C.A.9 (Ariz.) 1977, 561 F.2d 1323. Telephone subscriber cannot contend that monitoring conducted is random, or tha t the use of a dial number recorder effects an impermissible interception on line, where the automatic devices utilized by tele phone company are not installed until after evidence of illegal calls from subscriber's number is obtained and since subscri ber has no reasonable expectation that records of his calls will not be made. U. S. v. Harvey, C.A.8 (Ark.) 1976, 540 F.2d 1345. Use of peg-count meter on telephone line to defect presence of multifrequency t ones was not improper where examination of long-distance telephone records indicated that the subscriber might be using a b lue box. U. S. v. Goldstein, C.A.9 (Cal.) 1976, 532 F.2d 1305, certiorari denied 97 S.Ct. 384, 429 U.S. 960, 50 L.Ed.2d 327. For purposes of determining whether any electronic, mechanical or other device was used to unlawful intercept telephone conversation, tape recorder which was connected to telephone extension to record telephone conversation did not constitute the intercepting mechanism; telephone extension constituted the intercepting device . U. S. v. Harpel, C.A.10 (Colo.) 1974, 493 F.2d 346. Requirements for interception of oral and wire communications as set forth in t his chapter do not apply to installation of a TR-12 touch tone decoder so long as it is not used with a transducer to convert electr ical impulses to sound impulses either contemporaneously with receipt of electrical impulse or subsequently. U. S. v. Focarile, D.C.Md.1972, 340 F.Supp. 1033, affirmed 469 F.2d 522, certiorari granted 93 S.Ct. 1530, 411 U.S. 905, 36 L.Ed.2d 194, af firmed 94 S.Ct. 1820, 416 U.S. 505, 40 L.Ed.2d 341, affirmed 473 F.2d 906, certiorari denied 93 S.Ct. 1931, 411 U.S. 952, 36 L.Ed.2d 414. Where telephone subscriber alerted police after hearing strange voices on malfu nctioning telephone and the police, on invitation, listened in on the telephone and recorded gambling oriented conversations by mea ns of a tape recorder attached with suction cup and induction coil to back of telephone receiver, the malfunctioning telephone was n ot an "intercepting device" and, since there was no interception, police did not violate this chapter. State v. McCartin, N.J.Super .L.1975, 342 A.2d 591, 135 N.J.Super. 81. 9. Interspousal immunity

Not all wiretap interceptions involving spouses will be actionable; intercepti ons must be intentional, intercepting spouse must have knowledge that information was obtained through interception of communicati on in violation of section, and party being intercepted must not have consented. Thompson v. Dulaney, C.A.10 (Utah) 1992, 9 70 F.2d 744, on remand 838 F.Supp. 1535, 139 A.L.R. Fed. 765. There is no interspousal immunity exception under federal wiretapping statutes. Platt v. Platt, C.A.8 (Mo.) 1989, 951 F.2d 159. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 applies to interspousal wiretapping within marital home. Heggy v. Heggy, C.A.10 (Okla.) 1991, 944 F.2d 1537, certiorari denied 112 S.Ct. 1514, 503 U.S. 951, 117 L.Ed.2d 651. Title III, which prohibits the interception, use, or disclosure of wire communi cations by any person except as specifically provided, applies to conduct of one spouse in wiretapping telephone communicatio ns of other spouse within marital home. Kempf v. Kempf, C.A.8 (Mo.) 1989, 868 F.2d 970. Common-law doctrine of interspousal immunity was based on the legal fiction of marital identity--in the eyes of the law the husband and wife were considered one person and that person was the husband and for such reason it was impossible at common law to maintain a tort action between man and wife; however, husbands and wives were al ways regarded as separate individuals in criminal law. U. S. v. Jones, C.A.6 (Tenn.) 1976, 542 F.2d 661. Divorced wife who voluntarily taped former husband's conversations with their c hildren had intent required for federal wiretapping violation, even if she did not act with bad purpose or in disregard of law. Tho mpson v. Dulaney, D.Utah 1993, 838 F.Supp. 1535, 139 A.L.R. Fed. 765. Husband was liable under federal wiretapping statute for unauthorized intercept ion and recording of telephone conversations between third party and his wife, as statute prohibits all unauthorized interspo usal wiretapping committed within marital home. Walker v. Carter, C.D.Ill.1993, 820 F.Supp. 1095. Federal wiretapping statute applies to interspousal surveillance within marital home. Heggy v. Heggy, W.D.Okla.1988, 699 F.Supp.

1514. Evidence indicated that defendant's wife freely entered into agreement to tape conversations with defendant; thus, statements were not obtained in violation of wiretap statute [18 U.S.C.A. s 2511(2)(c)]. U .S. v. Estes, D.C.Vt.1985, 609 F.Supp. 564. No spousal exception exists for admissibility of evidence procured through elec tronic or mechanical eavesdropping under Title III of Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. ss 2510-2520. Pulaws ki v. Blais, R.I.1986, 506 A.2d 76. Federal Wiretapping Act, prohibiting nonconsensual interception of telephone co nversations, applied to conversations between spouses, despite claim that such conversations were subject to interspousal immu nity. Young v. Young, Mich.App.1995, 536 N.W.2d 254, 211 Mich.App. 446. No exception exists under federal wiretapping statute for interspousal wiretapp ing or domestic surveillance. People v. Otto, Cal.1992, 831 P.2d 1178, 9 Cal.Rptr.2d 596, 2 Cal.4th 1088, rehearing denied, ce rtiorari denied 113 S.Ct. 414, 506 U.S. 956, 121 L.Ed.2d 338. One spouse's interception of telephone communications by other spouse is violat ion of Omnibus Crime Control and Safe Streets Act rendering telephone communications inadmissible. Marano v. Holland, W.Va.1988, 366 S.E.2d 117, 179 W.Va. 156. Recordings by husband, on his own initiative and without assistance, of wife's telephone conversations in the parties' residence did not violate this section. Baumrind v. Ewing, S.C.1981, 279 S.E.2d 359, 276 S.C. 350, certiorari denied 102 S.Ct. 657, 454 U.S. 1092, 70 L.Ed.2d 630. This section making it criminal offense to willfully intercept any wire or oral communication or to use the contents thereof applies to interspousal wiretaps, and evidence obtained by interspousal wiretap was not admissible in dissolution of marriage proceeding. Stamme v. Stamme, Mo.App. E.D.1979, 589 S.W.2d 50. Federal wiretap statute applies to spousal wiretapping and prohibits use of tap ed conversations in matrimonial action where wiretapper is not a party to conversation and does not have consent of either pa rty to conversation. Ex parte O'Daniel, Ala.1987, 515 So.2d 1250, on remand 515 So.2d 1253. 10. State laws Evidence obtained in narcotics prosecution by means of agent wearing wire durin g conversations with defendant was, at most, product of joint federal- state investigation so that suppression of evidence wa s not required, even though evidence would not have been admissible under Massachusetts law; although initial contact between defend ant and law enforcement officers was with state and local police, case was immediately referred to narcotics task force composed of both state officers and federal agents and headed by federal agent. U.S. v. Pratt, C.A.1 (Mass.) 1990, 913 F.2d 982, certiorari d

enied 111 S.Ct. 681, 498 U.S. 1028, 112 L.Ed.2d 673. Mere involvement of state officers in joint federal-state investigation was not sufficient reason to look to state law to determine admissibility of interception evidence. U.S. v. Jarabek, C.A.1 (Mass. ) 1984, 726 F.2d 889. Evidence obtained from consensual wiretap conforming to federal law is admissib le in federal court proceedings without regard to state law. U.S. v. Adams, C.A.9 (Hawai'i) 1982, 694 F.2d 200, certiorari denied 103 S.Ct. 3085, 462 U.S. 1118, 77 L.Ed.2d 1347. A more restrictive state law on use of eavesdropping device does not affect adm issibility of such evidence in federal court. U. S. v. Horton, C.A.7 (Ill.) 1979, 601 F.2d 319, certiorari denied 100 S.Ct. 287, 444 U.S. 937, 62 L.Ed.2d 197. State and federal tariff regulations with respect to use of bleeper device when telephone conversation is being monitored apply only to persons acting in their private capacity, and thus were not violated by government monitoring of informer's conversations with defendants pursuant to informer's consent. U. S. v. Rich, C.A.8 (Mo.) 1975 , 518 F.2d 980, certiorari denied 96 S.Ct. 3193, 427 U.S. 907, 49 L.Ed.2d 1200. Where electronic interceptions of conversations involving undercover agent of a district attorney's office in Georgia were made with consent of agent, such interceptions did not violate this chapter, notwiths tanding contention that Georgia Code s 26-3001 et seq. establishing procedures for obtaining warrant for electronic surveillance w as inconsistent with this chapter. Ansley v. Stynchcombe, C.A.5 (Ga.) 1973, 480 F.2d 437. Mere fact that alleged victim's recording of telephone conversations between de fendant and victim would violate Massachusetts law did not establish that victim made recordings for purpose of committing criminal act within meaning of federal wiretap statute and, thus, did not remove recordings from federal statutory authorization for intenti onal interception of wire communications by party to communication. U.S. v. DiFelice, S.D.N.Y.1993, 837 F.Supp. 81. Evidence of transcription by state officials of telephone conversations between police officer, with his consent, and attorneys was admissible in federal prosecution of attorneys and their client for conspiri ng to bribe police officer to arrange for dismissal of client's car theft charges, even though evidence was obtained by state offici als in violation of state law, where evidence was

not obtained in violation of this section. U.S. v. Gervasi, N.D.Ill.1983, 562 F .Supp. 632. This chapter pertaining to electronic surveillance allow states which choose to do so by legislative action to conduct wiretaps provided wiretaps are conducted in accord with minimum federal standards but if state legislature determines to adopt stricter standards, the stricter state standards apply. U. S. v. Curreri, D.C.Md.1974, 38 8 F.Supp. 607. Tape recordings of conversations which took place between a federal informant a nd the defendant while the informant was wearing a body transmitter or was speaking with defendant over the telephone were authoriz ed by a federal court order for the informant's protection and, when obtained with informant's total consent, were admissible in state prosecution even though no application for an order authorizing interception of oral and wire communications was made throu gh a superior court judge. Com. v. Trignani, Pa.Super.1984, 483 A.2d 862, 334 Pa.Super. 526. Where wiretaps of defendant's conversations with police officers were performed under auspices of federal agents and with consent of officers, such wiretaps were valid under federal law, regardless of whether C ommonwealth established authorization through proper channels for use of tapes at county level. Com. v. Taraschi, Pa.Super.19 84, 475 A.2d 744, 327 Pa.Super. 179. Under this section authorizing wire interceptions and interception of oral comm unications, all that is required for a state validly to permit interception of communications is to have in effect a statute authorizing its principal prosecuting attorney or the principal prosecuting attorney of any of its subdivisions to apply to one of its judges of competent jurisdiction for order of interception; without this authorization any interception would be in violation of the federal law. State v. Siegel, Md.App.1971, 285 A.2d 671, 13 Md.App. 444, affirmed 292 A.2d 86, 266 Md. 256. While the field of interstate telephone communication is regulated by the feder al government, Congress has chosen not to preempt the state's authority to intercept messages where one party to a conversation ha s given the state his consent to intercept the conversation. People v. Pascarella, Ill.App. 3 Dist.1981, 415 N.E.2d 1285, 48 I ll.Dec. 1, 92 Ill.App.3d 413, certiorari denied 102 S.Ct. 403, 454 U.S. 900, 70 L.Ed.2d 217. Federal wiretapping statute in effect establishes minimum standards for admissi bility of evidence procured through electronic surveillance, and state law cannot be less protective of privacy than the federa l Act. People v. Otto, Cal.1992, 831 P.2d 1178, 9 Cal.Rptr.2d 596, 2 Cal.4th 1088, rehearing denied, certiorari denied 113 S.Ct. 4 14, 506 U.S. 956, 121 L.Ed.2d 338. 11. Authorization for interception Drug Enforcement Administration regulations did not require, and did not have t o require, advance approval of monitoring and recording of telephone conversations with consent of one party, and thus DEA did not violate either its own regulations or Attorney

General's memorandum to heads of executive departments and agencies by recording telephone conversations between defendant and informant or agent without defendant's knowledge but with knowledge and consent of other party to conversation. U. S. v. Jernigan, C.A.9 (Or.) 1978, 582 F.2d 1211, certiorari denied 99 S.Ct. 592, 439 U.S. 991, 5 8 L.Ed.2d 666. There is no violation of section 605 of Title 47 if the interception was author ized by a party to the conversation. U.S. v. Hodge, C.A.6 (Mich.) 1976, 539 F.2d 898, certiorari denied 97 S.Ct. 1100, 429 U. S. 1091, 51 L.Ed.2d 536. Intermediary banks which seized electronic funds transfers and turned them over to clerk of court pursuant to Attorney General's orders in forfeiture proceedings were not liable to claimants of funds, even if wiretap statute applied, where funds were already forfeited to government as result of their illegal genesis in money laundering s cheme, and banks had no independent intention in seizing funds other than to follow directions of United States Attorney; banks had no liability where they intentionally acted within their perceived legal obligations by following instructions of United Sta tes Attorney and court. Manufacturas Intern., Ltda v. Manufacturers Hanover Trust Co., E.D. N.Y.1992, 792 F.Supp. 180, affirmed 47 F.3d 1159, certiorari denied 115 S.Ct. 2557, 515 U.S. 1132, 132 L.Ed.2d 811. Judicial order is not required for tape recording a conversation when one of th e parties has given prior consent to the interception. U.S. v. Napolitano, S.D.N.Y.1982, 552 F.Supp. 465. Contrary to defense contention that illegal electronic listening device had bee n placed in defendant's bedroom, evidence established that bug had been placed in base of telephone with standard wall cor d connecting it to bug jack, that, for his own convenience, defendant had kept telephone on the middle-to- upper steps of open stairway which was no more than a few feet from defendant's bed, and that telephone remained in living room in compliance with o rder authorizing placing of bugs there. U. S. v. Williams, S.D.N.Y.1981, 527 F.Supp. 859. Telephone company had statutory authority to conduct nonrandom, nonservice cont rol monitoring to determine whether "blue box" was being used, and could disclose information obtained to government agents, and in formation could be used by government agents to support search warrant. U. S. v. Freeman, S.D.Ind.1974, 373 F.Supp. 50, affirme d 524 F.2d 337, certiorari denied 96 S.Ct. 1126, 424 U.S. 920, 47 L.Ed.2d 327. Provision of this section prohibiting interception of communications without au thority of sender is not applicable to one entitled to receive communication and no privilege may be asserted as to him. State v. M ueller, Mo.App. W.D.1980, 598 S.W.2d 564.

12. Time period for interception The reasonableness of an electronic surveillance depends on its length in the c ontext of what is sought and what is discovered and a surveillance may be entirely unreasonable even though it lasts for 30 days or only 10 days. Smith v. Nixon, C.A.D.C.1979, 606 F.2d 1183, 196 U.S.App.D.C. 276, certiorari denied 101 S.Ct. 3147, 453 U.S. 912, 69 L.Ed.2d 997, rehearing denied 102 S.Ct. 892, 453 U.S. 928, 69 L.Ed.2d 1024, on remand 582 F.Supp. 709, on remand 582 F.Supp. 716. Telephone company did not exceed permissible scope of justified wire intercepti on on theory that interception had continued after carrier had obtained sufficient evidence for a wire fraud prosecution, where, in ter alia, monitoring was not of entire contents of calls but instead only first one or two minutes of each call were recorded in an attempt to obtain name from salutations, voice recordings not preceded by 2600 cycle tone were erased without listening to cont ents, and, after one caller had been tentatively identified, voice recorder indicated that another person was involved in a "blue box" call from subscriber's number. U. S. v. Harvey, C.A.8 (Ark.) 1976, 540 F.2d 1345. Search by Federal Bureau of Investigation agents of home of suspected "blue box " user was not illegal because warrant for such search had been obtained on basis of information obtained from telephone company 's lawful electronic surveillance of suspect's telephone lines. U. S. v. Auler, C.A.7 (Wis.) 1976, 539 F.2d 642, certiorari de nied 97 S.Ct. 1132, 429 U.S. 1104, 51 L.Ed.2d 555. Provisions of this chapter authorizing interception of oral and wire communicat ions and requiring that every order and extension contain provision that authorization to intercept must terminate upon attainment of authorized objective concede no exceptions, and order authorizing "continuing surveillance over a restricted period of time" did not constitute substantial compliance with this chapter. State v. Siegel, Md.App.1971, 285 A.2d 671, 13 Md.App. 444, affirmed 2 92 A.2d 86, 266 Md. 256. Although telephone company's original ten-day surveillance in March revealed a large number of network entries from defendant's telephone employing 2,600 cycle signal, additional surveillance for two days in May did not violate this chapter since the second surveillance was necessary to determine whether the fraud was continuing; in an y event, subsequent attachments, like the original attachment, were a necessary incident to protection of the property rights of th e carrier and results of March monitoring would not have supported an application for a search warrant in May; telephone company ha d right to protect its proprietary interest by furnishing useable information to prosecutorial authorities. People v. Mahoney, Cal.App. 2 Dist.1975, 122 Cal.Rptr. 174, 47 Cal.App.3d 699. 13. Executive powers This chapter providing that nothing therein should be deemed to limit the const itutional power of the President to protect the

United States against any clear and present danger to the structure or existence of the government did not constitute a grant of power and was not intended to expand, contract or define whatever presidential s urveillance powers existed in matters affecting national security, but was only intended to make clear that this chapter should not be interpreted to limit or disturb such power as the President might have under the Constitution. U.S. v. U.S. Dist. Court fo r Eastern Dist. of Mich., Southern Division, U.S.Mich.1972, 92 S.Ct. 2125, 407 U.S. 297, 32 L.Ed.2d 752. Former Attorney General was entitled to qualified immunity in civil damage acti on based upon wiretaps, where sufficient facts were alleged to place wiretap in rational national security context. Ellsberg v. Mit chell, C.A.D.C.1986, 807 F.2d 204, 257 U.S.App.D.C. 59, certiorari denied 108 S.Ct. 197, 484 U.S. 870, 98 L.Ed.2d 148. Former national security council staff member's admission that he had access to option papers discussing possibility of Cambodian bombing operation, secret talks with North Vietnamese, and withdrawal of troops from Vietnam, as well as contingency planning in event that such steps might be taken, together with evidence that staff member h ad roomed with reporter who wrote article reporting classified bombing raids on Cambodia, was sufficient to establish reasonable nat ional security grounds for wiretap of staff member's phone so as to entitle government officials who ordered wiretap to qual ified immunity defense in civil damage action brought by staff member. Halperin v. Kissinger, C.A.D.C.1986, 807 F.2d 180, 257 U.S.App.D.C. 35, on remand 723 F.Supp. 1535. Those provisions of this chapter which, in the context of pure intelligence- ga thering activities, would frustrate the constitutional power of the President, cannot be applied to such surveillance. (Per Wright, Circuit Judge, with three Judges concurring and three additional Judges concurring in the judgment.) Zweibon v. Mitchell, C.A.D.C.1975, 516 F.2d 594, 170 U.S.App.D.C. 1, certiorari denied 96 S.Ct. 1684, 425 U.S. 944, 48 L.Ed.2d 187, c ertiorari denied 96 S.Ct. 1685, 425 U.S. 944, 48 L.Ed.2d 187, on remand 444 F.Supp. 1296. Restrictions upon the President's power which are appropriate in cases of domes tic security become artificial in the context of the international sphere. U. S. v. Brown, C.A.5 (La.) 1973, 484 F.2d 418, certi orari denied 94 S.Ct. 1490, 415 U.S. 960, 39 L.Ed.2d 575. Whatever constitutional power lies without scope of this chapter and is investe d in chief executive to authorize warrantless surveillance for sake of "national security," necessary prerequisite to administ ration of such power is express approval by President or Attorney General. U. S. v. Kearney, S.D.N.Y.1977, 436 F.Supp. 1108 .

14. Private conversations In monitoring telephone call received by employee to determine whether it was a business or personal call, employer was obliged to cease listening as soon as it determined that the call was personal, regardless of the contents of the legitimately heard conversation. Watkins v. L.M. Berry & Co., C.A.11 (Ala.) 1983, 704 F.2d 577. Where divorced husband, who had custody of parties' eight-year-old daughter, co vertly recorded, at his own home, telephone conversations between daughter and his ex-wife, such action involved mere marita l dispute and did not rise to level of criminal conduct proscribed by this section. Anonymous v. Anonymous, C.A.2 (N.Y.) 1977, 558 F.2d 677. While subsection (1) (a) of this section prohibiting interception or endeavor t o intercept wire or oral communication reaches bugging, i.e., interception of oral communication, by state action, subsection ( 1) (b) of this section prohibiting use of device to intercept oral communication reaches private action affecting interstate commerc e. U. S. v. Burroughs, D.C.S.C.1974, 379 F.Supp. 736, appeal dismissed 510 F.2d 967, opinion withdrawn 537 F.2d 1156, affirmed 56 4 F.2d 1111. The recording of private telephone conversation by a party to it and its subseq uent disclosure did not violate this chapter making it unlawful to intercept wire or oral communication. Smith v. Wunker, S.D.Ohio 1972, 356 F.Supp. 44. Intercom interception by desk officers of conversation between defendant and po lice officer was not illegal under this section, because defendant's statements did not fall within definition of "oral communica tions" of this section, and thus was not subject thereto, where this section required that speaker had a justifiable expectation of privacy with regard to "oral communications," but defendant, who was talking to officer after being told that anything he said may be used against him in court, could not justifiably claim to have expectation of privacy as to any statements he made. Com. v. Look, Mass.1980, 402 N.E.2d 470, 379 Mass. 893, certiorari denied 101 S.Ct. 91, 449 U.S. 827, 66 L.Ed.2d 31. Taping by police officers of defendant's conversation with his girl friend in a police interview room did not violate this section, especially since there was no reasonable expectation of privacy. State v. Hauss, Ariz.App.1984, 688 P.2d 1051, 142 Ariz. 159. A party to a conversation who mistakenly believes the other party will keep the conversation in secret is not prejudiced by the fact that such confidence is betrayed. Patterson v. State, Ark.1979, 591 S.W.2d 356, 267 Ark. 436, certiorari denied 100 S.Ct. 3014, 447 U.S. 923, 65 L.Ed.2d 1115. 15. Electronic surveillance Section 2517 of this title permitting disclosure of electronic surveillance mat erials to, and use of materials by, investigative and law enforcement officers in the proper performance of official duties does n

ot authorize inspection by National Archives and Records Service of electronic surveillance materials in Federal Bureau of Invest igation files. American Friends Service Committee v. Webster, C.A.D.C.1983, 720 F.2d 29, 231 U.S.App.D.C. 265. Installation or maintenance of electronic eavesdropping devices are not tasks e xclusively relegated to federal agents by Omnibus Crime Control and Safe Streets Act; as long as interception has been authorized pursuant to Act, and any person entering private property for purpose of installing surveillance devices is authorized to enter p roperty, either by warrant or otherwise, there are no further constitutional or statutory requirements relating to actual installat ion of devices. U.S. v. Gambino, S.D.N.Y.1990, 734 F.Supp. 1084. Federal wiretap statute provision for recording of communications of consent of one party would be applied as amended to eliminate liability for recording with an intent to commit an injurious act even though re cording came prior to that amendment, where the amendment was intended to clarify the law rather than to change it. Boddie v. A merican Broadcasting Companies, Inc., N.D.Ohio 1988, 694 F.Supp. 1304, affirmed 881 F.2d 267, rehearing denied, certiorari deni ed 110 S.Ct. 737, 493 U.S. 1028, 107 L.Ed.2d 755. Although testimony showed that telephone company started installing line for el ectronic surveillance at request of police lieutenant three days before warrant authorizing surveillance was obtained, inst allation was not complete until date warrant was issued and no device capable of intercepting wire communications was placed on l ine by telephone company; thus, wiretap was not void ab initio and any error in telephone company's actions was harmless. Gonzal ez v. State, Ga.App.1985, 333 S.E.2d 132, 175 Ga.App. 217, certiorari dismissed, post-conviction relief granted 411 S.E.2d 345 , 201 Ga.App. 437, den. of habeas corpus aff. in pt, quest. certified 967 F.2d 1499, certified question answered 425 S.E.2d 272, 262 Ga. 671, denial of habeas corpus aff. in part, rev. in part on other grounds 986 F.2d 461, rehearing denied, certiorari denied 114 S.Ct. 257, 126 L.Ed.2d 210. 16. Limited disclosure Federal wiretap statute provision for recording of communications of consent of one party would be applied as amended to eliminate liability for recording with an intent to commit an injurious act even though re cording came prior to that amendment, where the amendment was intended to clarify the law rather than to change it. Boddie v. A merican Broadcasting Companies, Inc., N.D.Ohio 1988, 694 F.Supp. 1304, affirmed 881 F.2d 267, rehearing denied, certiorari deni ed 110 S.Ct. 737, 493 U.S. 1028, 107 L.Ed.2d 755.

Limited disclosure of contents of illegally intercepted wire and oral communica tions in order to prosecute the interceptors would not constitute an invasion of privacy of type permitting prohibition of such dis closure. U. S. v. Liddy, D.C.D.C.1973, 354 F.Supp. 217, affirmed 509 F.2d 428, 166 U.S.App.D.C. 95, certiorari denied 95 S.Ct. 833, 420 U.S. 911, 42 L.Ed.2d 842. 17. Suppression of contents Where, although telephone company acted legally in obtaining some information b y electronically surveilling lines of suspected "blue box" user, surveillance also produced more information than telephone comp any needed to protect its interests and was, to that extent, improper, reasonable and necessary interceptions and disclosures we re not required to be suppressed in suspect's later prosecution as "fruits" of illegal surveillance. U. S. v. Auler, C.A.7 (Wis.) 1 976, 539 F.2d 642, certiorari denied 97 S.Ct. 1132, 429 U.S. 1104, 51 L.Ed.2d 555. In prosecution for conspiracy to import cocaine and for receiving and concealin g cocaine, this chapter did not require exclusion, on theory that intercepted telephone conversations traveled in part over United States communication system, of evidence which was obtained as result of wiretaps which were placed by Canadian police without judi cial authorization and which were not initiated or controlled by United States government. U. S. v. Cotroni, C.A.2 (N.Y.) 1975, 52 7 F.2d 708, certiorari denied 96 S.Ct. 2226, 426 U.S. 906, 48 L.Ed.2d 830. Where defendant used coded language in his dealings with undercover agent, agen ts executing wiretap authorization suspected that intercepted conversations might likewise contain hidden references to narcotics, agent terminated at least 15 gambling-related interceptions after ascertaining that calls would not turn to discussion of narc otics, and many of gambling conversations intercepted were between same suspects under investigation for narcotics traffic king, agents made a good-faith attempt to minimize nonpertinent interceptions and interception of 84 gambling conversations out of a total of 454 conversations intercepted on defendant's telephone did not constitute a failure to minimize interception of n onpertinent telephone conversations which would require suppression. U. S. v. Armocida, C.A.3 (Pa.) 1975, 515 F.2d 49, certiora ri denied 96 S.Ct. 111, 423 U.S. 858, 46 L.Ed.2d 84. For violation of this chapter to require suppression of intercepted communicati on, procedure in question must be a central or functional safeguard in statutory scheme to prevent abuses and purpose which par ticular procedure was designed to accomplish must not have been satisfied in spite of the violation; another factor, which may ha ve bearing on the issue, is whether statutory requirement was deliberately ignored and, if so, whether there was any tactical advantage to be gained thereby. U. S. v. Chun, C.A.9 (Hawai'i) 1974, 503 F.2d 533, on remand 386 F.Supp. 91. Neither state nor federal law required suppression with respect to intercepted telephonic conversations on ground that government failed to provide an inventory of intercepted phone calls within statutory time period and that tapes were not immediately sealed

after eavesdropping ceased, where state court had authorized delay in filing inv entory in order to protect secrecy of ongoing investigations and defendants had shown no prejudice resulting from either delay . U. S. v. Capra, C.A.2 (N.Y.) 1974, 501 F.2d 267, certiorari denied 95 S.Ct. 1424, 420 U.S. 990, 43 L.Ed.2d 670. Violations of wiretap statutes, which neither directly nor substantially implem ent Congress' expressed desire to restrain law enforcement's resort to or judicial authorization of wiretap procedures, are not violations which demand finding that communications intercepted thereunder were unlawfully intercepted and therefore must be suppressed. U.S. v. Kirkland, M.D.Ga.1989, 705 F.Supp. 1572, affirmed 893 F.2d 1342. Where government witness received telephone call at his residence, witness reco rded such telephone call on his own tape recorder and provided recording to agents of Bureau of Alcohol, Tobacco and Firearms, tel ephonic communication was not acquired illegally and it would not be suppressed. U. S. v. Fears, E.D.Tenn.1978, 450 F.Supp. 249. Not every failure to comply fully with any requirement for a wiretap renders in terception of wire or oral communications "unlawful," but, rather, suppression is required only for failure to satisfy any of those statutory requirements that directly and substantially implement congressional intention to limit use of intercept proced ures to those situations clearly calling for employment of such extraordinary investigative device. U. S. v. Aloi, E.D.N.Y.1 977, 449 F.Supp. 698. 18. Law governing Evidence of telephone conversations between informant and defendants which were recorded with informant's consent were admissible, despite contention that this section was not intended to preempt more restrictiv e West's Ann.Pen. Code s 631 and N.R.S. 200.610-200.690 requiring consent of all parties; where the evidence was gathere d in accordance with federal law, it was admissible, even if its acquisition violated state law. U. S. v. Testa, C.A.9 ( Hawai'i) 1977, 548 F.2d 847. Telephone company's action in conducting electronic surveillance of suspected "blue box" user's telephone lines as permitted by this section was not converted to "state action" by virtue of fact that state st atute likewise permitted telephone company to conduct such surveillance. U. S. v. Auler, C.A.7 (Wis.) 1976, 539 F.2d 642, cer tiorari denied 97 S.Ct. 1132, 429 U.S. 1104, 51 L.Ed.2d 555. Federal law will not control in state court in face of state statute governing tape recording of private conversations when state law is stricter than federal law; federal statute is only preemptive in those s ituations where there is no state law on subject of

conversation interception, or state law is less strict. Roberts v. Americable I ntern. Inc., E.D.Cal.1995, 883 F.Supp. 499. Federal law controlled question of whether tape-recorded interception of teleph one conversations at New York state prison could be used as evidence in federal court. U.S. v. Green, W.D.N.Y.1994, 842 F.Supp. 68, affirmed 80 F.3d 688, certiorari denied 117 S.Ct. 319, 519 U.S. 938, 136 L.Ed.2d 233, certiorari denied 117 S.Ct. 373, 519 U.S. 95 5, 136 L.Ed.2d 262. Admissibility of tape recordings of conversations between defendant and another was governed in criminal contempt proceeding by federal law, not by state law which prohibited the warrantless recording of conv ersation without the consent of all persons involved. U.S. v. Eyerman, S.D.N.Y.1987, 660 F.Supp. 775, appeal dismissed 857 F.2d 1462. Although New Hampshire has adopted a wiretapping and eavesdropping law, N.H. R SA 570-A:2, stricter than this chapter, the interceptions and recordings at issue in the instant case were not governed by t he provisions of the New Hampshire statute or the interpretations thereof by the New Hampshire Supreme Court but, rather, by this chapter, since the case was concerned solely with federal officers engaged in the investigation of an alleged federal crime, with trial of the offense to be held in a federal court before a federal jury. U. S. v. Upton, D.C.N.H.1980, 502 F.Supp. 1193. 19. Surreptitious monitoring of conversations Hotel telephone operator did not violate federal wiretapping law, so as to requ ire suppression of evidence leading to recovery of weapons used in murder and identification of defendant as owner, by staying on l ine after inadvertently hearing occupant of hotel make reference to guns; operator was concerned that there might be a danger to persons in hotel. Adams v. Sumner, C.A.9 (Nev.) 1994, 39 F.3d 933. There was no unlawful "interception" of security officer's conversations during period after corporation which retained security firm turned off voice logger on telephone lines with extensions in security offi ce, even though, due to design defect, handset microphone remained able to pick up ambient noise in guards' office and transmit ted it to corporation's security control room; corporation never acquired the "contents" of any conversations taking place in t he guards' office where corporation was not aware of the situation and there was no evidence that any of its employees ever listen ed to or recorded any conversations, and corporation did not act intentionally. Sanders v. Robert Bosch Corp., C.A.4 (S. C.) 1994, 38 F.3d 736, rehearing and suggestion for rehearing en banc denied. Provisions of this section generally prohibiting interception and disclosure of wire or oral communications, at least authorizes telephone company which has reasonable grounds to suspect that its billing proce dures are being bypassed to monitor any phone from which it believes that illegal calls are being placed, and, if telephone company by use of device similar to TTS 176 discovers existence of illegal calls, such section, again at a minimum, authorizes company

to record, audibly, the salutations and to divulge to law enforcement authorities and ultimately to courts the existence of illegal calls and fact that they were completed (the salutations). U. S. v. Clegg, C.A.5 (Tex.) 1975, 509 F.2d 605. Union member who allegedly surreptitiously taped proceedings of executive sessi on of public law board would be enjoined from presenting transcribed tape in union disciplinary proceeding brought against uni on officer who participated in session; officer would be irreparably harmed by use of tape, taping arguably violated federal-wir etapping statute, and public interest in punishing misbehaving union officials was outweighed by public interest in protecting thos e officials from use of their illegally intercepted conversations. Earley v. Smoot, D.Md.1994, 846 F.Supp. 451. Monitoring or spot-checking of intercepted conversations to make determination if conversations concerned illegal activity, in which event they could be intercepted, did not violate wiretap statute or Fourth Amendment. U.S. v. Gotti, E.D.N.Y.1991, 771 F.Supp. 535. A narcotics conspiracy defendant's ex-wife's surreptitious tape recordings of d iscussions of their drug dealing activities were not made for the purpose of committing a criminal or tortious act in violation o f the Federal Wiretapping Act; although ex-wife testified that she intended to use recordings to blackmail the defendant, she wa s not a credible witness and she admitted that they were never actually used in any unlawful scheme and that she had never actually threatened to use them. U.S. v. Nietupski, C.D.Ill.1990, 731 F.Supp. 881, affirmed 33 F.3d 1454, rehearing and suggestion f or rehearing en banc denied, certiorari denied 115 S.Ct. 2286, 515 U.S. 1126, 132 L.Ed.2d 288. Chapter governing wire and electronic communications interception and intercept ion of oral communications did not apply to placing of electronic beeper in undeliverable test letter placed with mail to be deliver ed by mail carrier suspected of mail embezzlement, a beeper which enabled postal inspectors to monitor the undeliverable letter's l ocation and was set to emit signal when the letter was opened; there was no monitoring of defendant's communications. U.S. v. Dow dy, D.Colo.1988, 688 F.Supp. 1477. Simply taping telephone conversation is not violation of this section. er Electronic Products, Inc. v. Sanyo Elec., Inc., D.C.Colo.1983, 568 F.Supp. 1194. Consum

Where telephone company lawfully monitored employee's telephone calls at "test desk," within meaning of this chapter, any disclosure of such conversations was not a violation of the Act since disclosure , to be unlawful thereunder, must be of information which was unlawfully intercepted. Simmons v. Southwestern Bell Tel. Co., W.D.Okl a.1978, 452 F.Supp. 392, affirmed 611 F.2d 342.

Affidavit in which witness who had been subpoenaed by the grand jury and his at torneys stated that they had heard strange clicks and beeps during telephone conversation, which stated the dates of those convers ations and the persons to whom the calls had been made on those dates, and which stated that, on one occasion, person placing a ca ll had heard conversation on the line even before the caller had said "hello" made a colorable showing of illegal surveillance suf ficient to require government to respond. Matter of Archuleta, S.D.N.Y.1977, 434 F.Supp. 325. Corporation may not surreptitiously monitor conversations of its employees. . S. v. Perkins, N.D.Ohio 1974, 383 F.Supp. 922. U

Action taken by telephone company supervisor in attaching a "blue box" detector to line of defendant subscriber, who was suspected of defrauding telephone company, which device recorded the numbers dialed and th e conversations had on such line in only those instances where a "blue box" frequency was actually applied thereto, constituted the type of nonrandom monitoring for the protection of property which was sanctioned by this section relating to prohibit ion against interception and disclosure of wire or oral communications, so that there was no violation of section 605 of Title 47 r elating to unauthorized publication or use of communications. U.S. v. DeLeeuw, E.D.Wis.1974, 368 F.Supp. 426. Where wife, the person intercepting telephone conversation with husband, was a party to communication, her surreptitious recording of the conversation was not unlawful under statute, 18 U.S.C.A. s 2511, and thus statute, 18 U.S.C.A. s 2515, did not operate to exclude the tape recording in dissolution proceeding. Wells v. Wells, Ind.App. 1 Dist.1986, 489 N.E.2d 972. 20. Common carriers Airline, through its computerized travel reservation system, was "provider of w ire or electronic communication service" within meaning of statute permitting officer, employee, or agent of provider of wire or electronic communication service to intercept, disclose, or use that communication in normal course of employment while engaged in any activity which is necessary incident to rendition of service or to protection of rights or property of provider of that service. U.S. v. Mullins, C.A.9 (Cal.) 1993, 992 F.2d 1472, certiorari denied 113 S.Ct. 2997, 509 U.S. 905, 125 L.Ed.2d 691, cert iorari denied 114 S.Ct. 556, 510 U.S. 994, 126 L.Ed.2d 457, habeas corpus denied, denial of post-conviction relief affirmed 139 F.3d 909. Finding of interstate nexus of telephone service lines in prosecution for willf ully intercepting endeavoring to intercept wire and oral communications sent over telephone was supported by testimony of repair tec hnician for telephone company that lines were owned by company and that lines were considered common carrier communication lines. U .S. v. Deckard, C.A.8 (Mo.) 1987, 816 F.2d 426. Telephone company acted within its rights in monitoring telephone lines by tape recorder on suspicion that subscriber was utilizing illegal "blue box" to make long-distance calls, and in subsequently di

sclosing information thus secured to Federal Bureau of Investigation. U. S. v. Cornfeld, C.A.9 (Cal.) 1977, 563 F.2d 967, certiorar i denied 98 S.Ct. 1484, 435 U.S. 922, 55 L.Ed.2d 515. Government agents must not rely on telephone company employees to act on their behalf without complying with requirements of U.S.C.A. Const. Amend. 5, and in no situation may Government direct telephone co mpany to intercept wire communications in order to circumvent warrant requirements of reasonable search. U. S. v. Auler, C.A.7 (Wi s.) 1976, 539 F.2d 642, certiorari denied 97 S.Ct. 1132, 429 U.S. 1104, 51 L.Ed.2d 555. Telephone company had duty to note all long distance calls and to attempt to co llect tolls and taxes prescribed in tariff, and was not required to stop monitoring telephone as soon as company had enough evidence to procure subscriber's arrest; four-month investigation was reasonably necessary for protection of company's property righ ts, and company was free to disclose results of entire four-month investigation. U. S. v. Clegg, C.A.5 (Tex.) 1975, 509 F.2d 60 5. Neither the Commonwealth of Massachusetts nor individual law enforcement agents who agreed to make warrantless interception of telephone call between Massachusetts prison inmate and county sheriff and inmate at county jail by monitoring phone call from prison switchboard came within scope of this section providing "common carrier" exemption from liability for interception of wire communications. Campiti v. Walonis, D.C.Mass.1978, 453 F.Supp. 819, affirmed 61 1 F.2d 387. Sections 2510 to 2520 of this title impose no criminal or civil liability on co mmon carriers which provide limited technical assistance pursuant to a Government request in connection with Presidentially au thorized electronic surveillance for foreign intelligence purposes. 1978 (Counsel-Inf. Op.) 2 Op. O.L.C. 123. 21. Defenses Statutory good faith defense to Wiretap Act offense did not apply to attorney w ho represented husband in divorce action and used contents of tape recorded telephone calls from marital residence in divorce acti on. U.S. v. Wuliger, C.A.6 (Ohio) 1992, 981 F.2d 1497, rehearing denied 999 F.2d 1090, certiorari denied 114 S.Ct. 1293, 510 U.S. 1191, 127 L.Ed.2d 647, rehearing denied 114 S.Ct. 1872, 511 U.S. 1101, 128 L.Ed.2d 492. Section of Wiretapping Act, providing defense to persons or entities engaged in providing electronic communication services to the public, did not provide protection for former wife who placed recording device o n telephone and intercepted messages between her

children and her former husband, and her attorney who advised that she could leg ally do so. Rice v. Rice, C.A.8 (Mo.) 1991, 951 F.2d 942, rehearing denied. Evidence of illegal drug activities by a physician, obtained through recording of conversation with paramedic who was his friend, was improperly suppressed by district court on grounds that paramedic's consent to recording had not been voluntary; although police officers had told paramedic that he could be indicted and lose his job if he failed to cooperate, he was never told that indictment or dismissal would occur if he refused, and although paramedic stated that he felt "trapped" into agreeing to the recording the pressure on him was no worse than on any other person who had enga ged in illegal activities and realized that he had been caught. U.S. v. Antoon, C.A.3 (Pa.) 1991, 933 F.2d 200, rehearing denied, certiorari denied 112 S.Ct. 300, 502 U.S. 907, 116 L.Ed.2d 243. Bank owner's consent to interception of Internal Revenue Service agents' conver sations on bank premises did not preclude a finding that agents had a justifiable expectation that they were not being monitored and was no defense to charge of electronic eavesdropping brought against bank president. U. S. v. Duncan, C.A.4 (N.C.) 197 9, 598 F.2d 839, certiorari denied 100 S.Ct. 148, 444 U.S. 871, 62 L.Ed.2d 96. Divorced wife's alleged good faith reliance on advice of attorneys in taping fo rmer husband's conversations with their children was not defense to husband's claim under federal wiretapping statutes. Thompson v. Dulaney, D.Utah 1993, 838 F.Supp. 1535, 139 A.L.R. Fed. 765. Good faith reliance on court warrant or order is complete defense under wiretap statute. Manufacturas Intern., Ltda v. Manufacturers Hanover Trust Co., E.D.N.Y.1992, 792 F.Supp. 180, affirmed 47 F.3d 1159, certiorari denied 115 S.Ct. 2557, 515 U.S. 1132, 132 L.Ed.2d 811. In prosecution for "willfully intercepting" telephone conversations, trial cour t erred in not allowing presentation of affirmative defense that letter from public utilities commission led defendant to believe, m istakenly, that his recording of telephone conversations was governed by federal law, and was, thus, legal. State v. Sheed y, N.H.1984, 480 A.2d 887, 125 N.H. 108. 22. Wire communication Telephone communication which occurred between defendant and codefendant and wh ich was intercepted by switchboard operator at motel where codefendant was staying was a "wire communication" and, hence, was a bsolutely protected if interception was willful and, hence, illegal. U. S. v. Axselle, C.A.10 (Kan.) 1979, 604 F.2d 1330. Superiors of police officer who notified them that pen register could be conver ted into wiretap, and police officer who allegedly set up authorized pen register and showed other officer how to convert it into w iretap, did not unlawfully intercept, disclose, or misuse telephone conversations within meaning of statute allowing civil action b

y person wiretapped. Falk v. County of Suffolk, E.D.N.Y.1991, 781 F.Supp. 146. That portion of cordless telephone conversation, intercepted by ordinary FM rad io does not fall within category of "wire communication" under this section, but is to be considered as "oral communicatio n" subject to rules pertaining to interception of oral communications under this chapter. State v. Howard, Kan.1984, 679 P.2d 197 , 235 Kan. 236. 22A. E-mail communications Assuming that former college employee inadvertently saw e-mail on computer scre en and then informed faculty members of its contents, faculty members did not violate Electronic Communications Privacy Act (ECPA) in disclosing contents of such e-mail, as no unlawful interception could have resulted from inadvertent glimpse of screen. W esley College v. Pitts, D.Del.1997, 974 F.Supp. 375, affirmed 172 F.3d 861. 23. Prisoners No court decisions or legislative authority warranted modification of permanent injunction issued pursuant to settlement stipulation in civil rights action by inmates against prison officials, which in ter alia prohibited prison officials from intercepting and monitoring inmates' telephone calls; to allow officials to mon itor inmates' telephone calls; federal and state wiretap laws did not clearly support officials' position that intercepting and m onitoring inmates' telephone calls were allowed. Langton v. Hogan, C.A.1 (Mass.) 1995, 71 F.3d 930, rehearing and suggestion for rehearing en banc denied. Taped telephone conversations in which prison inmate attempted to arrange escap e were admissible because inmate, who was instructed at prison orientation that inmate telephone calls were monitored and recorded, signed form indicating that he was aware of prison's telephone policy, and, thus, impliedly consented to taping of his ph one conversations. U.S. v. Horr, C.A.8 (Minn.) 1992, 963 F.2d 1124, certiorari denied 113 S.Ct. 143, 506 U.S. 848, 121 L.Ed.2d 95. Title III of the Omnibus Crime Control and Safe Streets Act dealing with wireta pping applies to prison monitoring. U.S. v. Amen, C.A.2 (N.Y.) 1987, 831 F.2d 373, certiorari denied 108 S.Ct. 1573, 485 U.S. 1021 , 99 L.Ed.2d 889.

This chapter, prohibiting judicially unauthorized interception of "any wire or oral communication," applied to monitoring of telephones used by prison inmates; however, where monitoring took place pursuan t to policy statement issued by Federal Bureau of Prisons as well as local prison rules, telephone rules were posted, and prison i nmates had reasonable notice that monitoring of their conversations might occur, monitoring took place within ordinary course of correctional officer's duties and was permissible under exception to this chapter, permitting interception of communication over e quipment used by an investigative or law enforcement officer in the ordinary course of his duties. U. S. v. Paul, C.A.6 (Ky.) 1980, 614 F.2d 115, certiorari denied 100 S.Ct. 2165, 446 U.S. 941, 64 L.Ed.2d 796. Defendant's telephone calls from prison phones were made with implied consent t o monitoring and taping of conversation, and with no legitimate expectation of privacy, where intercepted communications were made during conversations with government agent, inmate-turned-informant, and another government witness, each of whom were actin g under color of law and had given prior consent to interception of transmission. U.S. v. Escobar, E.D.N.Y.1994, 842 F.Supp. 1519. A prisoner did not consent to monitoring of his phone calls by using prison pho nes, for purposes of prisoner's claim under Title III of Omnibus Crime Control and Safe Streets Act, unless it could be shown that warden gave notice to prisoner, alone or in conjunction with others, that monitoring system was in place. Kimberlin v. Quin lan, D.D.C.1991, 774 F.Supp. 1, reversed 6 F.3d 789, 303 U.S.App.D.C. 330, rehearing en banc denied 17 F.3d 1525, 305 U.S.App.D. C. 172, certiorari granted 115 S.Ct. 929, 513 U.S. 1123, 130 L.Ed.2d 876, vacated 115 S.Ct. 2552, 515 U.S. 321, 132 L.Ed.2d 252, on remand. Inmate had no cause of action for telephone company's alleged practice of telli ng answering party on collect long distance calls that caller is inmate. Stevens v. U.S. Sprint Telephone Co., D.Kan.1991, 755 F.S upp. 972, appeal dismissed 936 F.2d 584. Federal prison officials' routine and random monitoring of inmates' personal te lephone calls for sole purpose of ensuring security and orderly management of institution was permissible under this section, which excludes from proscription of this chapter the interception of communications over equipment used by investigative or law enfor cement officer in ordinary course of his duties, since officials fell within definition of investigative or law enforcement offic ers, and officials' telephone monitoring of inmates' personal telephone calls was in ordinary course of officials' duties. Crooker v. U. S. Dept. of Justice, D.C.Conn.1980, 497 F.Supp. 500. Conversation between defendant and his wife over intercom telephone at jail did not meet definition of a "wire communication" within meaning of this section purporting to regulate interception of wire and o ral communications since it involved no facility furnished or operated by a common carrier. People v. Santos, Cal.App. 2 Dist.197 2, 101 Cal.Rptr. 517, 25 Cal.App.3d 158, rehearing granted, vacated 102 Cal.Rptr. 678, 26 Cal.App.3d 397.

24. Violations Estranged husband's recitation of facts obtained from interception of wife's ph one conversations in divorce proceeding in attempt to establish marital misconduct by wife was violation of Omnibus Crime Control a nd Safe Streets Act entitling wife to $100 in damages. Bess v. Bess, C.A.8 (Mo.) 1991, 929 F.2d 1332, rehearing denied. Violation of this section proscribing interception of wire or oral communicatio ns is the interception itself, not the interception of particular material; it is not necessary to recovery of damages that violato r hear anything in particular; she need do no more than listen. Watkins v. L.M. Berry & Co., C.A.11 (Ala.) 1983, 704 F.2d 577. Where testimony of antitrust plaintiff's officer that he recorded conversation with defendant's employee to make sure that he had an accurate record thereof was uncontradicted, it could not be said that convers ation violated this chapter and even if officer, who testified that he erased tape before listening to it and relied on his short hand notes, may have erased tape because it would have exposed any fabrication of the transcript this section does not punish eras ing of tapes. By-Prod Corp. v. Armen-Berry Co., C.A.7 (Ill.) 1982, 668 F.2d 956. Violation of Title III of Omnibus Crime Control and Safe Streets Act would not justify dismissal of indictment; dismissal would have to be based on governmental misconduct over and above Title III violation. U.S. v. Noriega, S.D.Fla.1991, 764 F.Supp. 1480. Client's communications with his attorneys concerning wiretapping of telephone and recording of conversations of third party were privileged, even though party bringing action under Omnibus Crime Control and Sa fe Streets Act for illegal wiretapping established prima facie case that client had violated wiretapping statute, where there was n o evidence that client communicated with attorneys to assist him in wiretapping. Sound Video Unlimited, Inc. v. Video Shack Inc., N.D.Ill.1987, 661 F.Supp. 1482. Having taped conversation between herself and defendant, and not in the presenc e of or at direction of federal agent, wife was sole interceptor of conversation, and recording was thus not in violation of wir etap statute [18 U.S.C.A. s 2511(2)(c)]. U.S. v. Estes, D.C.Vt.1985, 609 F.Supp. 564. 25. Immunity Quasi-public Puerto Rican telephone corporation was "other person" entitled to immunity from liability for its participation at direction of federal officers in wiretap authorized under Omnibus Crime Control and Safe Streets Act, given broad sweep of catchall

"other persons" classification. Camacho v. Autoridad de Telefonos de Puerto Ric o, C.A.1 (Puerto Rico) 1989, 868 F.2d 482. A grant of immunity to a party consenting to the taping of a conversation, with in meaning of this section providing that it is not unlawful for a person acting under color of law to intercept a wire or oral comm unication where one of the parties to the communication has given prior consent to such interception, does not render the consent involuntary. U. S. v. King, C.D.Cal.1982, 536 F.Supp. 253. Attorney for fire insurer, who had introduced into evidence in suit brought on policy by insureds tape recording tending to show that insureds had committed fraud in connection with their claim, had absolute i mmunity in s 1983 action brought by insureds claiming that tape recording had been made in violation of federal wiretapping l aw; action had been taken within scope of attorney's litigation related duties. Hamed v. Pfeifer, Ind.App. 3 Dist.1995, 6 47 N.E.2d 669. 26. Injurious act Taping telephone conversations to preserve evidence for a civil trial is not an "injurious act" within meaning of section of Omnibus Crime Control and Safe Streets Act [18 U.S.C.A. s 2511(2)(d)] providing an explicit exception to general rule prohibiting interception of telephone conversations where one of the parties to the conversa tion consents to the interception and purpose of interception is not to commit any criminal, tortious, or other injurious act. Pa rk v. El Paso Bd. of Realtors, C.A.5 (Tex.) 1985, 764 F.2d 1053, certiorari denied 106 S.Ct. 884, 474 U.S. 1102, 88 L.Ed.2d 919. Defendant broadcasting company's interview of plaintiff on public street did no t violate Ohio statute prohibiting recording private oral communication, and thus, could not be basis for tort action under O hio statute under which civil actions can be maintained to recover damages caused by violation of criminal statute; thus, th ere was no interception for purpose of committing tortious act, and one-party consent exception of Title III of Omnibus Crime Cont rol and Safe Streets Act, which act prohibits unlawful interception, disclosure, or use of any wire or oral communication, app lied. Brooks v. American Broadcasting Companies, Inc., N.D.Ohio 1990, 737 F.Supp. 431, affirmed in part, vacated in part on other grounds 932 F.2d 495. Party seeking to require attorneys for client to testify as to communications w ith clients concerning wiretapping of parties' telephone established prima facie case that client knew or recklessly disregarde d that his wiretapping activities were illegal, where wiretapping equipment was not readily available, client had expertise in t elecommunications, and client installed device after normal business hours, took care to conceal it, and instructed secretary t o discard original transcripts made from tapes. Sound Video Unlimited, Inc. v. Video Shack Inc., N.D.Ill.1987, 661 F.Supp. 1482. Use by prosecution of tape recording of civilian's conversations with defendant , consensually taped by civilian serving as informant, does not constitute "injurious act" within meaning of this section, d

eclaring it not to be unlawful for person not acting under color of law to intercept wire or oral communication unless communi cation is intercepted for purpose of committing "injurious act." U.S. v. Robertson, W.D.La.1983, 562 F.Supp. 463. 27. Venue Venue of suit brought under federal wiretap statute seeking injunction barring transmission of television program was proper in the Southern District of New York; all defendants resided in that district and alleged interception of message took place there. Berger v. King World Productions, Inc., E.D.Mich.1990, 732 F.Supp. 766. 28. Cellular communication, interception of Electronic Communications Privacy Act does not impose general duty upon cellula r phone service provider to encrypt or otherwise render transmissions incapable of interception. Shubert v. Metrophone, Inc., C. A.3 (Pa.) 1990, 898 F.2d 401. 28A. Interception of commercial satellite programming A provision of the Wiretap Act making it unlawful for any person to intentional ly intercept electronic communications applied to the interception of commercial satellite programming; exception from the Wireta p Act applied to cable satellite programming only if it was unencrypted and unscrambled; overruling United States v. Hux, 940 F.2d 314. U.S. v. Davis, C.A.8 (Iowa) 1992, 978 F.2d 415. 28B. Burden of proof In claim alleging violation of wiretapping statutes, burden of proof is on part y attempting to show that communication was intercepted for criminal or tortious purposes. Copeland v. Hubbard Broadcasting , Inc., Minn.App.1995, 526 N.W.2d 402, review denied. 29. Harmless or prejudicial error Erroneous admission of tape recording of telephone conversation between arreste e and defendant, which Government failed to establish was obtained with requisite consent, was not harmless. U.S. v. Gomez, C.A.5 (Tex.) 1990, 900 F.2d 43, rehearing denied.

30. Scope of review Where district court dismissed actions because it concluded that plaintiffs did not allege judicially cognizable claims under Privacy Act, Court of Appeals' review was plenary. Shubert v. Metrophone, Inc., C.A.3 (Pa.) 1990, 898 F.2d 401. 31. Descramblers Modified satellite descramblers, manufactured and sold for intercepting and una uthorized viewing of encrypted signals of premium pay television programming networks, were subject to forfeiture under the Electr onic Communications Privacy Act; the manufacturer of the descrambler was subject to criminal prosecution under the Act, as well as under separate statute prohibiting the unauthorized interception of communications by means of new technologies, includ ing satellite communications. U.S. v. One Macom Video Cipher II, SN A6J050073, C.A.6 (Ohio) 1993, 985 F.2d 258. 32. Pre-arrest conversation Defendant did not have reasonable or legitimate expectation of privacy in state ments made to companion while seated in police car and, accordingly, statements made by a defendant and recorded by police officer were not protected under Fourth Amendment or Wiretap Act; allowing police to record statements made by individual seated ins ide patrol car does not intrude upon privacy and freedom to such extent that it could be regarded as inconsistent with aims of fr ee and open society. U.S. v. Clark, C.A.8 (Iowa) 1994, 22 F.3d 799, rehearing and suggestion for rehearing en banc denied. Defendant did not have reasonable expectation of privacy while in backseat of p olice car and, therefore, tape recording of his prearrest conversations did not violate Title III of the Omnibus Crime Control a nd Safe Streets Act or his Fourth Amendment right to privacy. U.S. v. McKinnon, C.A.11 (Fla.) 1993, 985 F.2d 525, certiorari deni ed 114 S.Ct. 130, 510 U.S. 843, 126 L.Ed.2d 94. 33. Color of law Assistant state university basketball coach was not acting "under color of law" when tape recording telephone conversations with potential high school recruit for purposes of federal wiretapping statute; ther e is no logical and reasonable connection between coach's job and eavesdropping. Thomas v. Pearl, C.A.7 (Ill.) 1993, 998 F.2d 447 , rehearing denied, certiorari denied 114 S.Ct. 688, 510 U.S. 1043, 126 L.Ed.2d 655. Tapes of telephone conversations made by corporate executive of conversations w ith officers and competitors of company were made "under color of law" so as to be exempt from prohibition of federal Wiretap Act; the executive had continuous, although irregular, contact with government officials; it was immaterial that executive was motivat ed by personal vendetta against his employer. Obron Atlantic Corp. v. Barr, C.A.6 (Ohio) 1993, 990 F.2d 861. 34. Tortious act

For purposes of statute permitting a party to an oral communication to intercep t a conversation if interception is not for purpose of committing any criminal or tortious act, the "tortious purpose" must be a tor tious purpose other than the mere intent to surreptitiously record an oral conversation. Roberts v. Americable Intern. Inc., E.D.Cal.1995, 883 F.Supp. 499. 35. Voice mail recording Employee's recording of messages left on his voice mail at work was not an "in terception" within meaning of federal wiretap statute; "interception" requires, at the least, involvement in initial use of d evice contemporaneous with communication to transmit or preserve the communication, and employee's use of handheld recorder to record voicemail messages did not occur contemporaneously with leaving of the messages; moreover, persons leaving messa ge consented to recording of their message by fact that they left a message. Payne v. Norwest Corp., D.Mont.1995, 911 F.Supp. 1299 , affirmed in part, reversed in part 113 F.3d 1079. 36. Monitoring Employee's use of cellular telephone did not need to be fraudulent or unlawful to be permissible phone for monitoring and interception of calls by employer, as provider of electronic communication servi ce, investigating employee's involvement in cloning of cellular telephones; all that was necessary was strong nexus between use of t elephone and known fraud from use of cloned telephones. U.S. v. McLaren, M.D.Fla.1997, 957 F.Supp. 215. 37. Indictments Parallel elements of offenses under Electronic Communications Privacy Act (ECP A) concerning "intercept" and "access" of electronic communications, as alleged in separate counts charging that defendant listened to stored voice mail messages intended for others, were indistinguishable for purposes of Blockburger analysis, and thu s, counts were multiplicitous in violation of double jeopardy clause. U.S. v. Moriarty, D.Mass.1997, 962 F.Supp. 217.

38. While in transmission Bank's alleged disclosure of contents of electronic communications held in elec tronic storage would not violate provision of Electronic Communication Privacy Act (ECPA) proscribing divulging of contents of communication "while in transmission." Lopez v. First Union Nat. Bank of Florida, C.A.11 (Fla.) 1997, 129 F.3d 1186, rehearing a nd suggestion for rehearing en banc denied 141 F.3d 1191. 39. Use Actions of television station and reporter, in copying and transcribing tape re cordings of illegally intercepted telephone calls did not constitute "use" of illegally intercepted communications within meaning of wiretap statute. Peavy v. Harman, N.D.Tex.1999, 37 F.Supp.2d 495. Individual's conduct in merely listening to allegedly illegally-obtained audiot ape of private telephone conversations did not amount to "use" of such communication in violation of Omnibus Crime Control and Safe Streets Act of 1968. Fields v. Atchison, Topeka, and Santa Fe Ry. Co., D.Kan.1997, 985 F.Supp. 1308, opinion withdrawn in part on reconsideration 5 F.Supp.2d 1160. 40. Custodial parent's good faith concern A custodial parent's good faith concern for his minor child's best interests ma y, without liability under the Federal Wiretapping Statute, empower the parent to intercept the child's conversations with her noncustodial parent. Campbell v. Price, E.D.Ark.1998, 2 F.Supp.2d 1186. 18 U.S.C.A. s 2511 18 USCA s 2511 END OF DOCUMENT

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