Federal Wiretap Act -- Eavesdropping
a. Introduction
If the sexual photos or videos published online were obtained through interception of an electronic communication, the perpetrator may be criminally and civilly liable under this statute.
b. Text of the Statute
18 U.S.C. § 2511
(1) Except as otherwise specifically provided in this chapter any person who--
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(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--
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business 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 operations of which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
(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 obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(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 wire, oral, or electronic communication in violation of this subsection; or
(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)-(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 the information in connection with a criminal investigation, and (iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation,
shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)
[. . .]
(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. [. . .]”
c. Cases
Research is ongoing.
d. Practice Pointers
- The definition of “electronic communication” is quite broad under this Act:
“The Wiretap Act generally prohibits the intentional ‘interception’ of ‘wire, oral, or electronic communications.’1
- Civil actions providing both equitable relief and damages are available to “any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of [the Wiretap Act].”2 The available remedies include injunctions, compensatory damages, punitive damages, statutory damages, disgorgement of profits made by the violator, and attorney’s fees.3 Statutory damages consist of $100 for each day of the violation or $10,000, whichever is greater.4
- Damages awarded in cases concerning violations of the Wiretap Act in private communications range from nothing to half a million dollars. In Bowyer v. Hi-Lad, Inc., the appellate court affirmed a jury award of $100,000 in compensatory damages and $400,000 in punitive damages to a hotel employee who had been secretly recorded by his employer.5 In contrast, the court declined to award damages in Shaver v. Shaver, even though the husband plaintiff proved that the wife defendant had violated the Wiretap Act by recording his telephone conversations.6 The bulk of civil actions under the Wiretap Act involve cable company plaintiffs suing defendants who accessed the cable signal without paying for it.7
- 1. See 18 U.S.C. § 2511(1). [. . .] ‘Electronic communications’ are defined in the Wiretap Act as ‘any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.’ 18 U.S.C. § 2510(12).” United States v. Steiger, 318 F.3d 1039, 1047 (11th Cir. 2003).
- 2. 18 U.S.C. § 2520(a).
- 3. Id. at §§ 2520(b)(1)-(3), (c)(2)(A)-(B).
- 4. Id. at § 2520(c)(2)(B).
- 5. Bowyer v. Hi-Lad, Inc., 609 S.E.2d 895, 908, 911 (W. Va. 2004).
- 6. Shaver v. Shaver, 799 F. Supp. 576, 581 (E.D.N.C. 1992).
- 7. See, e.g. King Vision Pay-Per-View Ltd. v. Spice Restaurant & Lounge, Inc., 244 F. Supp. 2d 1173 (D. Kan. 2003); Comcast of Mass. I, Inc., v. Naranjo, 303 F. Supp. 2d 43 (D. Mass. 2004); DirecTV, Inc. v. Bloniarz, 336 F. Supp. 2d 723 (W.D. Mich. 2004).