Written by attorney Stephen Patrick Pfeiffer

The Civil and Criminal Implications of Wiretapping

“Curiosity kills the cat." This old saying is a perfect example of what can happen when a person’s suspicions and inquisitive nature gets out of control. With modern technology’s prevalence and ease of use, more and more inquisitive people are using technology to investigate their suspicions. In particular, people are beginning to use recording devices to listen in on telephone conversations. Most people would not think twice about whether it is legal to record the conversations of another, especially when they own the phone that is being tapped. However, their actions could result in criminal and civil liability.

The Virginia Wiretapping Statute is located in Section 19.2-62 of the Virginia Code, which is the section of the Virginia Code that covers “criminal acts". This statute makes it unlawful for any person (note: “person" also includes a corporate entity) to intentionally intercept, use or disclose; attempt to intercept, use or disclose; or get another person to intercept or use any wire, electronic or oral communication (hereinafter referred to collectively as wiretapping). The statute is broad and encompasses the act of placing a recording device on a telephone. Violation of the wiretapping statute is punishable as a Class 6 Felony. Despite the breadth of this statute, it does contain two important exceptions.

The first exception occurs when the person performing the wiretapping is a party to the recorded conversation. Thus, the person tapping his/her phone must be party toeveryconversation on that phone to comply with this statutory exception. If someone else used the phone and the person performing the wiretap was not party to the conversation, a court could find that the statute had been violated.

The second exception occurs when the party performing the wiretap has prior consent from one of the parties to the conversation. If someone uses the phone without first consenting to the wiretap, a violation of the statute could be found.

Now the very curious/suspicious person may think it is worth the criminal penalty to find out the truth. However, this person should also consider the possible civil liability his/her actions might create. The Virginia Code, section 19.2-69 creates a civil cause of action with “presumed damages" against a party who is found to have engaged in wiretapping. This means that people engaged in the conversation recorded do not have to prove they were damaged in any way. The statute allows the court to presume the plaintiff was damaged by the act of wiretapping. Additionally, the statute provides the possibility of punitive damages. Finally, the statute goes as far as to require the wiretapper to pay the opposing party’s attorneys’ fees and court costs.

Are there advantages to wiretapping a telephone to record the conversations of others? Perhaps, but considering the possible criminal and civil liability I would suggest the advantages are outweighed by the risk.

Additional resources provided by the author

Virginia Code, Section 19.2-69 and 19.2-62

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