States have differing laws concerning recording communications. Specific state laws should be reviewed concerning the specific state involved. Additionally, federal laws may be applicable, especially if communications involve crossing state borders. This webpage covers the applicable law on interception of wire, oral, and electronic communications in Iowa.
Iowa Law.
Iowa Code § 808B.1 et seq. (2009) covers state law on interception of wire, oral, and electronic communications. Violation of the state law by willfully intercepting, endeavoring to intercept or procuring any other person to intercept or endeavor to intercept, a wire, oral, or electronic communication can be a class D felony. Iowa Code 808B.2 (2009). Additionally interception can be a violation of state and federal constitutions if conducted by government entities. See Katz v. United States, 389 U.S. 347 (1967).
Under Iowa Code § 727.8 (2009), any person, having no right or authority to do so, who taps into or connects a listening or recording device to any telephone or other communication wire, or who by any electronic or mechanical means listens to, records, or otherwise intercepts a conversation or communication of any kind, commits a serious misdemeanor; provided, that the sender or recipient of a message or one who is openly present and participating in or listening to a communication shall not be prohibited hereby from recording such message or communication; and further provided, that nothing herein shall restrict the use of any radio or television receiver to receive any communication transmitted by radio or wireless signal. Thus 2 general exceptions are that a person can record if opening present and participating in or listening to the conversation (one party permission), and radio and television receivers. State v. Fox, 493 N.W.2d 829,831 (Iowa 1992). Iowa is a one party state allowing interception based on the consent of one party to the conversations. Other states may be one party, two party or all party consent, so these state laws need to be reviewed.
Civil damages are authorized under Iowa Code 808B.8 (2009). Authorized are: Actual damages, but not less than liquidated damages computed at the rate of $100/ day of violation, or $1000 whichever is higher; Punitive damages upon a finding of willful, malicious, or reckless violation; and Reasonable attorney’s fee and other litigation costs. Good faith reliance upon a court order is a complete defense. Also available is injunctive relief.
Iowa Code § 716.6B (2009) covers computer crimes. If computer data is accessed containing a confidential record, operational or support data of a public utility, rural water district, municipal utility, or a public airport, or a trade secret, an aggravated misdemeanor is committed. If computer data is copied, altered, or deleted, a serious misdemeanor is committed. Other access is a simple misdemeanor. Civil proceedings are also authorized to prevent, restrain, or remedy a violation.
Spyware and malware is covered under Iowa Code § 715 (2009). Unlawful acts under this chapter consist of an aggravated misdemeanor, unless a victim’s pecuniary loss exceeds $1000 which then is a Class D Felony. Iowa Code § 715.7 (2009).
Federal Laws:
The two basic federal laws covering wiretapping and electronic surveillance are: The Electronic Communications Privacy Act of 1986 (ECPA) and the Foreign Intelligence Surveillance Act of 1978 (FISA) (50 U.S.C. 1801 et seq.). These laws have been modified under the USA Patriot Act (P.L. 107-56, 115 Stat. 272 (2001)), the Intelligence Authorization Act for Fiscal Year 2002 (P.L. 107-108, 115 Stat. 1394 (2001)), the 21st Century Department of Justice Appropriations Authorization Act (P.L. 107-273, 116 Stat. 1758 (2002)), the Department of Homeland Security Act (P.L. 107-296, 116 Stat. 2135 (2002)), the USA PATRIOT Improvement and Reauthorization Act (P.L. 109-177, 120 Stat. 192 (2006)), and the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (P.L. 110-261, 122 Stat. 2436 (2008)).
The ECPA (18 U.S.C. 2511(1)) bans any person from intentionally intercepting, or endeavoring to intercept, wire, oral or electronic communications by using an electronic, mechanical or other device unless the conduct is specifically authorized or expressly not covered. Non-covered activities include:
1. one of the parties to the conversation has consented to the interception (U.S. is one party authorization);
2. the interception occurs in compliance with a statutorily authorized (and ordinarily judicially supervised) law enforcement or foreign intelligence gathering interception;
3. the interception occurs as part of providing or regulating communication services;
4. certain radio broadcasts (radio communications which can be inadvertently heard or intended to be heard by the public are exempt, including commercial broadcasts, distress signals, tone-only pagers, marine radio, CB radio, and interceptions to identify the source of a transmission disrupting communications satellite broadcasts);
5. and in some places spousal wiretappers (but not in Iowa).
6. The USA PATRIOT ACT eliminated voice mail from coverage. 18 U.S.C. 2510(1), and added stored wire communications coverage. 18 U.S.C. 2703.
7. The ECPA also does not cover common law “eavesdropping” but only interceptions by electronic, mechanical, or other device. This does not include hearing aids or extension telephones in normal use.
Consent depends on the facts in the case. If an exemption is claimed as a practice in the ordinary course of business, the interception must be for a legitimate business reason, routinely conducted, and in some Circuits, employees must be notified that conversations are being monitored. Some circuits have ruled that surreptitious use of an extension in the family home may be covered under the legitimate business exemption. Law enforcement and prisons have an exemption due to routine and almost universal recording of phone lines. Consent may be either explicitly or implicitly given, but must be freely given and not secured coercively. Private consent interceptions may not be conducted for a criminal or tortuous purpose. 18 U.S.C. 2511(2)(d). Vicarious consent exemptions are allowed by a few courts for custodial parents secretly recording the conversations of a minor child to protect the child. Pollock v. Pollock, 154 F.3d 601, 611 (8th Cir. 1998). The 8th Circuit among others has rejected one spouse wiretapping or electronically eavesdropping upon the other, although the telephone extension exemption might apply.
Attempted wiretapping and electronic eavesdropping is a crime under 18 U.S.C. 2511(1), but is seldom used as possession of wiretapping equipment is also a crime under 18 U.S.C. 2512.
There are criminal and civil penalties for violation of the federal laws. Criminal penalties include imprisonment for not more than 5 years and fines up to $250,000 or up to $500,000 for organizations that violate the law. Attorneys can face disciplinary action by the state bar association. There is a reduced penalty for intercepting satellite communications as long as the interception is not for criminal, tortuous, nor mercenary purposes. Equipment used to illegally wiretap or eavesdrop is subject to confiscation, and possession is also a crime under 18 U.S.C. 2512. Congress considered illegal equipment to include the martini olive transmitter, spike mike, infinity transmitter, and microphones disguised as a wristwatch, picture frame, cuff link, tie clip, fountain pen, stapler, or cigarette pack.
It is also a federal crime to disclose information obtained from illicit wiretapping or electronic eavesdropping., 18. U.S.C. 2511(1)(c), or use of information obtained from such activities. 18 U.S.C. 2511(1)(d). This includes not just the wiretapper or electronic eavesdropper but all those who disclose information. This does not include authorized activities which may be used for law enforcement and testimonial purposes.
The use or installation of pen registers or trap and trace devices by anyone other than the telephone company, service provider, or someone acting under judicial authority is also a federal crime, punishable by imprisonment for not more than a year and/or a fine of not more than $100,000 or $200,000 for an organization, but there is not an accompanying exclusionary rule to allow suppression of evidence. 18 U.S.C. 3121.
Civil penalties allow victims to be entitled to equitable relief, damages (equal to greater of actual damages, $100/day of violations, or $10,000), punitive damages, reasonable attorney’s fees, and reasonable litigation costs. Governmental entities other than the United States may be liable for violations. Law enforcement officers enjoy qualified immunity under 18 U.S.C. 2520.
Evidence can also be suppressed as a result of illegal capture of communications, 18 U.S.C. 2515, although a good faith exception may be applicable. Tapes or transcripts of tapes may have problems with admissibility. The party must show that the tapes or transcripts are accurate, authentic and trustworthy. This may require a showing: (1) that the recording device was capable of recording the events offered in evidence; (2) the operator was competent to operate the device; (3) the recording is authentic and correct; (4) changes, additions, or deletions have not been made in the recording; (5) the recording has been preserved in a manner that is shown to the court; (6) the speakers on the tape are identified; and (7) the conversation elicited was made voluntarily and in good faith, without any kind of inducement.
A defense is provided under the law for actions based on good faith. This seems to provide a defense only to government official or someone working under their direction.
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