The act of wiretapping can be defined in a number of different ways but, at its core, is the act of listening in on and/or recording a private conversation without a court order, search warrant, or the consent of at least one party involved in the exchange.

What legally constitutes wiretapping can vary from state to state throughout the U.S., though it is considered a federal offense, and therefore, falls under the regulation of federal laws and mandates. As a result, it is possible for an offender to be charged on both a state and federal level depending upon the severity of the crime itself. (For example, wiretapping a federal office would be a federal offense.)

Arizona Wiretapping Consent Laws

The state of Arizona has what is known as a one-party consent law, meaning that at least one party within a conversation must provide consent to being recorded in order for the act to be considered legal. There are two exceptions to this rule:

• If you (the person doing the recording) are a party to the conversation – meaning you are actively partaking in the conversation.
• If you are present (in the immediate vicinity) during the conversation and are thus able to naturally overhear what is being said.

While these laws do apply to individuals in the state of Arizona, if your intention is to record multiple individuals from multiple states, it is safest if all parties involved provide their consent. If not, ensure you are following the regulations as outlined by all states involved.

It is important to note that these laws do not apply in public places, such as parks, restaurants, or even police stations, where the individuals involved in the conversation do not have a “justified expectation of privacy.” Due to the fact that it is possible to be easily overheard in public places, privacy cannot be guaranteed or justified; a precedent set by the Arizona court case State vs. Hauss.

Violating this one-party consent law by illegally recording a conversation (for which the aforementioned exceptions do not apply) is a felony and can be punished via jail time and/or a significant fine. Police, lawyers, and other personnel within the criminal justice system are not exceptions.

Electronic Surveillance vs. Search and Seizure

According to federal law, electronic surveillance is a “search” categorized under the Fourth Amendment of the United States Constitution. For this reason, without express permission from one of the participating members of a given conversation (held somewhere where privacy is an expectation), probable cause and a warrant must be in place.

When broken down, the fourth amendment of the U.S. Constitution outlines the right of a U.S. citizen to have their self, car, and home protected from illegal searches and seizures by the government. That being said, not every search, seizure, and/or arrest requires a warrant as long as there is probable cause for the police’s actions.

Warrantless searches and seizures that are considered legal in the eyes of the law include public arrests, traffic stops (for reasonable suspicion), and roadside checkpoints just to name a few.

The Federal “Wiretap” Act

Also known as “18 U.S. Code § 2511 - Interception and disclosure of wire, oral, or electronic communications prohibited,” the Federal Wiretap Act is a federal law that protects an individual’s private communications with another person or group of people. Offenders of this act include anyone who “intentionally or purposefully intercepts, discloses, or uses the contents of any wire, oral, or electronic communication through the use of a ‘device.’”

With this particular act, it is important to understand the difference between the act of “disclosing” and the act of “using” the wiretap recording. In this case, “disclosing” is to tell another person about the contents of the recording, while “use” goes beyond this, referring to the offender utilizing the content in order to achieve a gain of some kind. Examples of illegal use might include blackmail, defamation of character, etc.

The aforementioned definition also outlines three types of content – wire, oral, and electronic – as protected forms of communication. “Wire” refers to traditional phone calls or any form of communication that is passed through a wire or cable. “Oral” indicates a spoken form of communication. And, finally, “electronic” indicates communication made using an electronic device. Examples of this might be text messages or email.

Police Use of Wiretaps According to the Wiretap Act

As with most pieces of legislation, there are exceptions to the rule. In terms of the Wiretap Act, these exceptions typically fall under two categories: service providers and law enforcement. Officers of the law may intercept, listen in, and record conversations if at least one party consents and/or if they have a valid court order or warrant to do so. It is important to note here that the conversation that can be recorded and the use of the information gathered MUST be within the scope of the court order. Any actions or evidence taken outside of the scope of the order will be considered illegal and invalid in the eyes of the court.

The telephone service provider, as an extension of this, is also allowed to legally listen in on calls if they have been instructed to do so by an officer of the law in possession of a valid warrant. Other exceptions for service providers include customer permission and conducting necessary inspections in order to fix equipment.

Penalties of Wiretapping

As noted, the severity of the charges brought against an individual for wiretapping will correspond to the severity of the crime. Federal charges are, by nature, going to be more severe than civil charges (though both are possible in certain situations).

When it comes to penalties for wiretapping, just as the charges can vary, so can the consequences. Sentences can result in jail time ranging from six months to ten years. In addition to imprisonment, fines can be as large as $250,000 for a single individual or half a million dollars for an organization found guilty of wiretapping. Those who violate wiretapping laws may also be subject to civil liability, meaning that offenders can be sued and forced to pay for damages that resulted from the crime.

Forfeiture of recording equipment and additional fines may also be required.

When to Get a Lawyer Involved

The answer is always: right away. If you’ve been accused of or charged with wiretapping, you need to contact a criminal lawyer immediately. An experienced lawyer will be able to navigate the state and federal regulations in your state and advise you on your next steps, a proper defense, what to say (and not to say!) during an interrogation, and more.

Not sure if you need a lawyer? Schedule a consultation with a member of our team to go over your circumstances and discover what steps you need to take moving forward.