You’ve seen the scene many times in TV shows or movies; someone is having a conversation on the phone discussing plans with illicit motives, while a team of government officials or police are listening in on the call through wiretapping.
In reality, wiretapping is commonly used by law enforcement and the government by intercepting any wire, oral, or electronic communication, often to gather evidence for a trial.
Wiretapping legality has a long history that is still being debated today; there are laws in place that should protect you.
What is Wiretapping?
Wiretapping is the monitoring of telephone and electronic conversations by a third-party. It is achieved by either placing a monitoring device, also known as a “bug”, on the wire itself or through other built-in processes through electronic communication, such as packet sniffers, which are programs that capture data on the network.
The name wiretapping comes from the original process of actually using an electrical tap on the telephone line, which started first with telegraphs in the mid-1800s.
In many cases, wiretapping is used to gather information without the consent of one party. The information is commonly used in conducting criminal investigations, including admission of guilt.
A Brief History of Wiretapping
As with any new technology, there are often people who want to use it for their own gain. In the case of telephones and telegraphs, wiretapping has been around since their invention. For example, in 1862, for example, California created a statute prohibiting wiretapping telegraphs after they were introduced to the American West after a stock broker was caught listening to corporate telegraph lines and sold the overheard information to stock traders.
The first recorded case of wiretapping by law enforcement occurred in the 1890s by police in New York City, but law enforcement has a long history of listening to conversations through wiretap before that. During the 1890s case, law enforcement was found tapping local hotels without warrant, but were not convicted since they did not breach any privacy violations; the Fourth Amendment only covered tangible communications such as mail or a physical house.
During the early 1900s, several judges sought to have warrants for wiretapping to protect the privacy of individuals. It wasn’t until 1968 that the Crime Control and Safe Streets Act mandated the requirement for probable cause and individual warrants.
Even with the new mandate, modern day wiretapping often falls into a gray area that many argue doesn’t require a warrant. In fact, in 1994, the Communication Assistance for Law Enforcement Act allowed law enforcement to fine telecommunications companies thousands of dollars a day if they did not build new networks with wiretapping communication.
With constantly advancing communication technology and concerns over individual’s privacy, the legality of wiretapping continues to be a debate.
Is Wiretapping Legal?
The Electronic Communications Privacy Act, or ECPA of 1986, “protects wire, oral, and electronic communications while those communications are being made, are in transit, and when they are stored on computers.”
By definition, wiretapping is illegal, but the law has many exceptions that make it legal under certain circumstances, especially for law enforcement. .
One-party states
Many states have imposed one-party rules when it comes to the legality of wiretapping. This means that only one party has to consent to the recording or disclosure of communications.
For example, you can agree to record yourself in a conversation with another person and by doing so, you do not need consent from the other party to make the recording legal. However, if the other party is in a state that has a two-party law, the recording of the conversation would be illegal.
If someone else is recording you and another party, though, that person would be considered breaking the law as they are a third-party and not consenting to the recording of the conversation.
Law enforcement
Similar to the one-party law, law enforcement is allowed to intercept communications if one party consents, such as an informant. If the informant agrees to be recorded, law enforcement agents have every right to listen and record that conversation or gather information.
Law enforcement also has the right to wiretap anyone that they suspect of criminal activity by obtaining a warrant for a wiretap. They also can listen to any prisoners’ conversation without a warrant. Gaining a warrant for wiretapping can be difficult, though, and they have a set of specific requirements they must meet before they can record anyone’s conversation without their knowledge.
What is Needed to Get a Wiretapping Warrant?
In order for law enforcement to wiretap someone that they find suspicious, they must obtain a warrant. They must prove that having a warrant to wiretap will help solve a serious crime and they must have probable cause. Serious crimes include examples such as human trafficking, terrorism, and money laundering. Wiretap warrants can also be granted if there is a crime being committed that is considered “dangerous to life, limb, or property.”
Law enforcement must follow the proper procedures to get a wiretap warrant; if any step is missed or in question, the evidence that is obtained by wiretapping can be dismissed in court. If the warrant is granted, law enforcement can look at any and all wire, oral, and electronic communications for the party in question.
Can You Protect Yourself From Wiretapping?
Wiretapping, although illegal except by law enforcement and the government, can still happen, especially if you are a business that works with sensitive information. Corporate espionage can occur through wiretapping; software for wiretapping can easily be purchased online by anyone. There are programs that allow hackers to send a single text-message that can activate the microphone allowing anyone to listen to your conversation.
To protect yourself and your business from unwanted eavesdroppers and hackers, there are a few steps you can take to ensure your privacy is secured.
Protect Your Computers – Install a personal firewall and use a VPN, or virtual private network, to help keep the information on your computer private and secure, as well as a strong password that you frequently change. When you are traveling or out in public, avoid using a public Wi-Fi network that is easily accessible to hackers. Companies should make sure that their IT infrastructure has extensive security and updated software.
Know Who Has Access to Your Data – If you are a business owner with sensitive data, make sure those who have access to that data are trustworthy and you have a thorough background check conducted. Suspicious employees may need to be further investigated with a private investigator to ensure they are not wiretapping your company for secrets.
Avoid Virtual Assistants – For individuals and even major businesses, a virtual assistant can be convenient to have. However, Amazon’s Alexa and Google home can track your conversations and give private information to the company. As these devices are always “on”, they make it difficult for you to see who is really listening.
Keep Your Conversations Simple – If you do suspect you might be wiretapped, try to avoid discussing anything private on phones or through any electronic communications such as texting and email. The less you say, the better, until you can confirm you are being wiretapped.
What is Wiretapping?
Wiretapping and other forms of illegal surveillance might seem like something that occurs only on television, in the movies, or through the government, but everyday wiretapping can occur too. Although the practice is illegal, there are many exceptions to the rule, such as in one-party states, that make it a gray area. To avoid any risk of leaking sensitive information, take the necessary steps to protect yourself and your business.
