Federal Wiretapping Law Memo

In my first semester of law school, I was asked to research and write about federal wiretapping law. I’ve decided to publish my mock memo here in the hopes that it may help someone researching about federal wiretapping law. I can’t guarantee that my work is 100% correct as I only got a 3.3 on the mock memo haha. Oh well. Unemployment for me. Just kidding… sort of. Well then, without further adieu, here is the memo:

QUESTION PRESENTED

Under the Federal Wiretapping Act, does Kelly Hancock (potential defendant) have a valid defense under the Extension Phone Exemption, when she used a machine for six months that was connected to a telephone inside her home to manually and automatically record telephone conversations that her spouse, Matthew Hancock (potential plaintiff), had with their child Tara Hancock and with Tracy Smith (headmaster at Tara’s school), and when Kelly was motivated out of concern for Tara’s well-being?

BRIEF ANSWER

Probably no.  The Federal Wiretapping Act generally prohibits people from using devices to intercept oral communications unless the device is (1) telephone equipment (2) furnished by the communication company or obtained by the user and connected to the communication service and (3) is used in the ordinary course of business.

Factors used to identify telephone equipment includes if the device was a standard telephone item, if the device was installed by the telephone company, if the device operated independently of a telephone, and if the device furthered the communication system.  The device Kelly used was probably not telephone equipment because it likely was not installed by her telephone company. Also, the device was put on a telephone and was not a useful component of the communication system.

Exempt devices must be furnished by the provider of communication service or be furnished by the user and connected to the service.  Kelly’s device probably does not qualify because she likely furnished it herself and put it on her telephone instead of on the phone line.

The four elements required for a use to be ordinary in the course of business are (1) the purpose for the use must be appropriate, (2) the phone line must be accessed with authority, (3) the duration of the use must be acceptable, and (4) the use must be targeted.  The ordinary course of business extends to domestic arenas.  Kelly’s actions were probably not ordinary uses in the course of her business because she recorded for six months, listened to irrelevant portions of conversations, and sometimes recorded all telephone calls.

Kelly likely does not have a defense provided by the Extension Telephone Exemption.

FACTS

Matthew Hancock, Kelly Hancock’s soon-to-be ex-husband, has threatened to file a civil suit against Kelly under the Federal Wiretapping Act.  Kelly felt like Matthew was cutting her off from communicating with their 13 year old daughter, Tara, who was away at boarding school.  Kelly resisted the idea of Tara attending boarding school and wanted to create a better relationship with Tara.  Kelly wondered if Matthew was not telling her the whole truth about how Tara was doing because Kelly received a phone call from Tara who informed Kelly that she was miserable and had no friends.  Matthew had never told Kelly those specific details.

Kelly bought and put a small recording device on the telephone in her home office which was connected to a phone line that Matthew used in his home office.  It is unclear where Kelly obtained the device.  Kelly recorded some of Matthew’s telephone calls for a six month period starting in January and ending in June.  Kelly did not tell Matthew about the recording device because she wanted to know the truth.  Matthew and Kelly did not work together but Matthew ran a business from the home.

When Kelly was working at her home office, she would manually record certain telephone calls.  If the phone call included Tara or Tracy Smith, Kelly would sometimes listen to the telephone call while recording.  However, Kelly worked away from the home most days and many evenings.  When Kelly was not at her home office, she would set the recording device to record all telephone calls, both incoming and outgoing.  She would then only listen to phone calls between Matthew and either Tara or Tracy Smith.  The conversations between Matthew and Tracy sometimes included flirting and reminiscing about past times.

DISCUSSION

The recording device that Kelly installed on an extension telephone inside of her home which she used to record the conversations of her spouse, child, and Tracy Smith, probably does not qualify for the Extension Phone Exemption.  Federal wiretapping law is found in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq.  (“Federal Wiretapping Act”).  One of the overarching purposes of the Federal Wiretapping Act is to protect wire communications which includes telephone conversations.  Campiti v. Walonis, 611 F.2d 387, 392 (1st Cir. 1979).  The Federal Wiretapping Act prohibits:

Any person who . . . (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.

18 U.S.C. § 2511(1)(b)(i) (Westlaw through P.L. 113-180).

The Extension Phone Exemption is an exclusionary definition which declares:

Electronic, mechanical, or other device’ means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than– (a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business.

18 U.S.C. § 2510(5)(a)(i).  In summary, the Federal Wiretapping Act generally prohibits people from using devices to intercept oral communications.  However, if the device is (1) telephone equipment (2) furnished by the communication company or obtained by the user and connected to the communication service and (3) is used in the ordinary course of business, then the use is exempt.

This Memorandum deals exclusively with this three part exemption as it has already been determined that the recording equipment Kelly used was the intercepting device and this issue will not be further discussed.  The first section of this Memorandum concludes that the equipment Kelly used does not qualify as telephone equipment.  The second section discusses that Kelly probably did not properly furnish the equipment.  The third section determines that Kelly did not use the equipment in the ordinary course of her business.  Therefore, Kelly likely does not qualify for the Extension Phone Exemption.

Telephone equipment

The device that Kelly Hancock used inside her home office was probably not telephone equipment.  Factors that courts weigh for this issue include (1) whether the device is a “standard” telephone item, Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir. 1983), (2) whether the equipment was “installed” by the telephone company, James v. Newspaper Agency Corp., 591 F.2d 579, 581 (10th Cir. 1979), (3) whether the equipment “operated independently” of a telephone, Deal v. Spears, 980 F.2d 1153, 1158 (8th Cir. 1992), and (4) whether the equipment “further[ed] the . . . communication system”, Sanders v. Robert Bosch Corp., 38 F.3d 736, 740 (4th Cir. 1994).

Standard telephone items that are commonly and widely used, like an extension telephone, are more likely to be classified as telephonic than custom or homemade items.  Watkins, 704 F.2d 577, 581; Williams v. Poulos, 11 F.3d 271, 280 (1st Cir. 1993).  In Watkins, an employer used a common extension telephone to monitor solicitation phone calls made by its employees.  704 F.2d 577, 581.  The court quickly explained that the telephonic requirement of the Extension Phone Exemption was met because the employer used a standard extension telephone.  Id.  Contrastingly, in Williams, an employer used a “custom-designed monitoring system” to record phone calls made by its employees.  11 F.3d 271, 276.  After declaring that the custom monitoring system was not telephonic because it was pieced together with microphones and clips, the court cited and endorsed multiple cases that found a dispatch console and extension telephones to be standard telephone items.  Id. at 280.

Equipment is more likely to be seen as telephonic when installed by a telephone company.  James, 591 F.2d 579, 581.  In James, an employer had its telephone company install monitoring devices on the telephones of the departments that communicated with the public.  Id. at 580.  The court stated that this “was a part of the service rendered by the phone company” and held that the Extension Phone Exemption applied.  Id.

Equipment that operates independently of a telephone weighs in favor of it being viewed as telephonic.  Deal, 980 F.2d 1153, 1158.  In Deal, an employer suffered a robbery and thought it likely that the theft was an inside job.  Id. at 1155.  The employer installed a recording device onto an extension telephone which recorded all calls made on the telephone line.  Id.  The court ruled that the extension phone was telephonic but that the recording device was not and commented that “there was no evidence that the recorder could have operated independently of the telephone.”  Id. at 1158.

Equipment that furthers a communication system is more likely to be viewed as telephonic.  Sanders, 38 F.3d 736, 740.  In Sanders, an employer installed equipment that recorded all telephone conversations on targeted telephone lines in response to bomb threats previously made to the employer.  Id. at 738.  The court held that the equipment was not telephonic because it “in no way furthers the . . . communication system.”  Id. at 740.  See also Pascale v. Carolina Freight Carriers Corp., 898 F. Supp. 276, 281 (D.N.J. 1995).

Overall, Kelly’s recording device was probably not valid telephone equipment and this analysis begins with the conclusion that her equipment was most likely not a standard telephone item.  Unlike in Watkins, where an extension telephone was the equipment in question, Kelly’s device was small and able to record all incoming and outgoing phone calls.  Due to the device’s advanced capabilities and being physically small, it seems somewhat reasonable to infer that the device was not an answering machine of any kind and therefore not a commonly used telephone item like the extension telephone in Watkins.  However, predicting this specific factor is tricky because, unlike in Williams, which highlighted a homemade device, Kelly’s equipment was probably purchased from a store and not homemade which could be argued makes the item standard.  Even if a court determines that the item was standard in the sense that it was not homemade, a court is unlikely to find that the device was a commonly used telephone item.

Unlike James, where monitoring devices were installed by a telephone company, Kelly probably did not have her telephone company install the recording equipment which weighs heavily against her equipment being telephonic.  Although this issue is not absolutely clear, Kelly has stated that she put a device on the telephone in her office.  Also, Matthew was often at home running his business and Kelly probably did not want to run the risk of Matthew being alerted by the telephone company’s presence during the possible installation.

The recording equipment that Kelly used likely did not operate independently of a telephone which supports the idea that her equipment was not telephonic.  Kelly’s equipment was connected to an extension telephone, just like in Deal, and nothing seems to indicate that the device could function without a telephone.

The equipment that Kelly used did not further her communication system because, like in Sanders, the equipment’s function was to record telephone conversations and there are no reports of the telephone system not working before the device was installed.  Similar to the device in Sanders, Kelly’s equipment was an unnecessary attachment to the communication system.

The device that Kelly used was probably not telephone equipment, mostly because it likely was not installed by her telephone company.  However, the device may be telephonic if it is discovered that her telephone company actually installed the equipment.

Equipment furnished

It seems probable that Kelly obtained the equipment herself and because the equipment was connected to her telephone instead of her telephone line it will probably be seen as unqualified for the Extension Phone Exemption.  Equipment must be “furnished to the subscriber or user by a provider of wire or electronic communication service” or be “furnished by such subscriber or user for connection to the facilities of such service” in order to be eligible for the exemption.  18 U.S.C. § 2510(5)(a)(i).

User obtained equipment that is attached to a telephone is not considered connected to the communication service.  Deal, 980 F.2d 1153, 1158.  In Deal, the recording equipment was attached to an extension telephone that was connected to a telephone line.  Id. at 1153.  The court concluded that the equipment relied on the extension telephone and did not qualify.  Id. at 1158.

The equipment that Kelly used was probably not properly furnished.  Like in Deal, where recording equipment was connected to an extension telephone, Kelly’s equipment was connected to an extension telephone and not directly to the telephone line.  The court in Deal found it very relevant that the device was not connected directly to the telephone line but had to rely on a telephone to operate.  A court will probably use the same reasoning to determine that the equipment Kelly connected to her extension telephone was not connected directly to the communication service.  Although, this analysis is invalid if Kelly obtained the equipment through her telephone service provider which could be possible because Kelly historically has worked so often, but, it seems more likely that Kelly obtained the equipment herself in order to keep Matthew in the dark.

Because the equipment that Kelly used was connected to her telephone instead of her telephone line it will probably be seen as unqualified for the Extension Phone Exemption as long as she obtained the equipment herself instead of obtaining it from her telephone service provider.

Used in the ordinary course of business

The way in which Kelly Hancock used the recording equipment that was attached to her extension telephone will probably not be seen as an ordinary use in the course of her business.  The four elements utilized to determine if a use occurred in the ordinary course of business are (1) whether the purpose for the use was appropriate, Scheib v. Grant, 22 F.3d 149, 155 (7th Cir. 1994), (2) whether the party had authority to access the phone line, Britton v. Britton, 223 F. Supp. 2d 276, 282 (D. Me. 2002), (3) whether the duration of the use was acceptable, United States v. Murdock, 63 F.3d 1391, 1392 (6th Cir. 1995), and (4) whether the use was sufficiently targeted, Briggs v. Am. Air Filter Co., 630 F.2d 414, 420 (5th Cir. 1980).  The ordinary course of business extends to uses in the home as well as business settings.  Scheib, 22 F.3d 149, 151.

Parental action motivated out of concern for their child’s “well-being” is an appropriate purpose.  Id. at 151, 154.  In Scheib, a father recorded telephone conversations that his child had with the child’s mother who was divorced from the father.  Id. at 151.  The father said he recorded the conversations out of concern for his child because the child would become visibly upset and emotional after speaking with the mother.  Id.  The court found this motivation very material and stated that they could not “attribute to Congress the intent to subject parents to criminal and civil penalties for recording their minor child’s phone conversations out of concern for the child’s well-being.”  Id. at 154 (emphasis added).

Accessing a phone line without authority is not a use in the ordinary course of business.  Britton, 223 F. Supp. 2d 276, 282.  In Britton, an estranged wife was accused of using recording equipment on a phone line that was located in the basement of the couple’s home.  Id. at 279.  The phone line was owned and operated by the husband’s company in which the wife had no ownership and the line was used solely by the company’s employees.  Id.  The court found that there was conflicting evidence as to whether the phone line was actually part of the home or part of the company.  Id. at 282.  The issue was deemed trial worthy because if the phone line was part of the home then the Wife’s use of the telephone line would more likely be viewed as authorized.  Id.

Large durations of questionable use is more likely to be found unacceptable.  Murdock, 63 F.3d 1391, 1392.  In Murdock, an estranged wife became suspicious of her spouse and utilized recording equipment on two telephone extensions which were connected to phone lines inside the couple’s home.  Id. at 1392.  The wife recorded incoming and outgoing phone calls for three months and filled two shoe boxes full of recorded tapes.  Id. at 1392-93.  The court ruled that the estranged wife’s actions did not qualify as an ordinary use in the course of her business.  Id. at 1397.  See also Deal, 980 F.2d 1153, 1158 (finding that twenty-two hours of recording was illegitimate and not within the ordinary course of business).

Targeted and specific use is more likely to be seen as permissible.  Briggs, 630 F.2d 414, 420.  In Briggs, a supervisor had reason to believe a certain employee was on a phone call with a specific individual divulging confidential work related information.  Id. at 416.  The supervisor listened to and recorded the conversation through an extension telephone and a portable dictation machine.  Id.  The court concluded that the supervisor’s act in listening to and recording the conversation was in the ordinary course of business because the supervisor had specific questions about the phone call in question and listened only while the discussion involved the targeted topic.  Id. at 420.

Kelly’s use of her recording equipment was probably not ordinary in the course of her business.  However, Kelly’s actions were most likely motivated out of concern for her child’s well-being, which satisfies the purpose element.  Like in Scheib, where a father recorded telephone conversations upon seeing the child become upset during telephone calls with the child’s mother, Kelly started recording telephone conversations after Tara called Kelly in January communicating how upset Tara was about her situation at boarding school.  Kelly had not previously realized the extent of Tara’s misfortune.  Although, it may be argued that because Kelly worked long hours outside of the home, she was not really motivated out of concern for her child but had another motivation.  Perhaps a motivation to get her way.  Kelly did resist the idea of Tara going away to boarding school and wanted to create a better relationship with Tara, something that would be difficult with Tara at boarding school.  It may also be argued that Kelly’s initial motivation was pure, but, as she heard Matthew and Tracy flirting, Kelly became motivated by jealousy instead of being motivated by Tara’s well-being.  However, in light of the current evidence, a court will most likely find that Kelly’s purpose was to protect Tara.

Kelly probably had authority to use and access the phone line because there was a connection in her home office.  Unlike in Britton, where the phone line was in the basement, Kelly had access from her home office which points to the idea that it was a shared home line.  However, Matthew was at home more often than Kelly because he ran his business from the home and she worked long hours outside of the home.  This may hint that the telephone line was intended only for Matthew’s business.  If the telephone line was purely for Matthew’s business and he had not given Kelly permission to access the line, or if Matthew did not know Kelly could access the telephone line from her home office, the determination of this element could be different.  Asking Kelly whether she had permission to access the telephone line or if Matthew knew of her access would be helpful.

Kelly used the recording equipment for a long period of time which likely eliminates her use from conforming to the required durational element.  Unlike in Murdock, where a wife recorded telephone conversations for three months (which was deemed to be too long), Kelly recorded for a six month period.  The wife in Murdock was able to fill two shoe boxes with tape recordings.  It is unclear how many shoe boxes Kelly could have filled with her recordings, but, it is clear that twenty two hours of recordings was seen as excessive in Deal.  It seems likely that after six months of recording, Kelly probably amassed more than twenty two hours of recordings.  However, if Kelly did not equal or exceed twenty two hours of recordings, she still used the recording equipment for a six month long period.

A court would likely find that Kelly’s actions were not targeted or specific enough to qualify for the Extension Phone Exemption.  Unlike in Briggs, where a supervisor recorded a certain employee on a specific telephone call for a targeted reason, Kelly would sometimes set the recording equipment to record all phone calls, both incoming and outgoing, when she was away from the home.  Although it is true that she would only listen to telephone calls involving three specific individuals, she still probably recorded conversations that did not include her targets because the recording equipment was sometimes set to record all telephone calls.  Unlike the supervisor in Briggs, who listened only while the conversations regarded a specific topic, Kelly listened to Matthew and Tara while they reminisced about past times and flirted.  It could be argued that the discussions combined relevant tidbits of conversations with irrelevant portions, however, the fact that Kelly sometimes recorded all telephone calls will probably lead to the conclusion that her actions were not targeted nor specific enough.

Kelly’s six month period of recording conversations was too long. Her decision to sometimes record all telephone calls and to listen to irrelevant portions of conversations was too untargeted. Therefore, Kelly’s actions most likely fails the requirement of being an ordinary use in the course of her business and probably will not qualify for the Extension Phone Exemption.

CONCLUSION

Kelly Hancock likely does not have a valid defense provided by the Extension Telephone Exemption.  The recording device that Kelly Hancock used probably does not qualify as telephone equipment because Kelly most likely installed it herself instead of having her telephone company install the equipment.  Kelly also probably obtained the device herself and connected it to her telephone which means the equipment was not properly furnished.  Kelly likely did not act in the ordinary course of her business because she recorded telephone calls for six months, sometimes recording all incoming and outgoing calls.