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Intercept Electronic Communications

18 U.S.C. § 2511 - Interception and Disclosure of Wire, Oral, Or Electronic Communications

Federal laws, such as Title 18 U.S. Code 2511, define the crime of unauthorized interception and disclosure of electronic communications.

From the invention of the telegraph to the instant digital communications of today, privacy has become an increasing matter of concern for United States citizens.

Intercepting Electronic Communications - 18 U.S.C. 2511

To ensure these protections, the U.S. government has passed laws making it a federal crime for anyone to intercept, use, or disclose any oral, wire, or electronic communications except when duly authorized.

18 U.S.C. 2511 says, “any person who intentionally intercepts or uses, attempts to, or procures another person to do so any oral or electronic communication; or uses a mechanical or another device to intercept any oral communication when it's affixed to, or transmits a signal through, a wire, cable, or other like connection used in wire communication; or interferes with the transmission of such communication and the person know that such device has been sent through the mail or transported in interstate or foreign commerce shall be punished….”  

There is a right to privacy protected in the United States, such as the legal right not to intercept your communications. It would be best if you had a clear understanding of the federal statutes that deal with the interception of wire and electronic communications and the laws associated with the interception of oral communications.

If you are accused of this crime, you could face severe penalties if convicted, including heavy fines and up to 5 years in federal prison. Let's review these federal laws further below.

What Does the Law Say?

18 U.S.C. 2511 is the embodiment of the Electronic Communications Privacy Act (ECPA) of 1986 into criminal law. It is a crime to intentionally intercept, disclose, or use any wire, oral, or electronic communication in violation of federal law.

This law applies to any person who is not a party to the communication and who intentionally intercepts, discloses, or uses that communication without the consent of at least one party.  Specifically, the law prohibits any of the following, among other things:

  • Willfully intercept any oral, wire, or electronic communication;
  • Using any wired or wireless device to intercept such communication;
  • Using any device connected with interstate or foreign commerce to intercept such communication;
  • Intentionally disclosing such communication knowing it was illegally intercepted;
  • Intentionally using information from illegally intercepted communications;
  • Disclosing legally intercepted communications during a criminal investigation to impede or interfere with that investigation.

In addition to willfully intercepting, disclosing, or using these protected communications, this law also makes it a crime to attempt to do so or to get someone else to do so. In other words, trying to intercept these communications is the same crime as actually doing it, and it is subject to the same penalties.

Any unauthorized interception, disclosure, or use of wire, oral, or electronic communications is a federal felony. If you are convicted of violating 18 U.S.C. 2511, you could face up to five years in prison and a fine of up to $250,000. 

What Are the Exceptions to the Rule?

Not all interception, disclosure, or use of oral, wire, or electronic communications is illegal. The law does provide for several exceptions, which include, but are not limited to:

  • Monitoring for quality control: If a company uses or provides electronic communications, it can intercept communications to improve quality and service. This is the reason for the often-repeated customer service line disclaimer, "This call may be monitored or recorded for quality assurance."
  • To assist in criminal investigations: Companies are permitted to disclose intercepted communications to law enforcement for the purpose of legitimate criminal investigations.
  • Authorized surveillance: Law enforcement is permitted to intercept and monitor oral, wire, and electronic communications as part of authorized criminal investigations, either with an authorized warrant or with the consent of one of the parties involved.
  • Foreign Intelligence: Federal agents are authorized to monitor/intercept communications as part of intelligence gathering for national security purposes.

Why Is This a Federal Crime?

While many criminal offenses are left to the jurisdiction of state law, federal law takes precedence when the crime involves crossing state lines or anything connected with foreign or interstate commerce.

In the case of illegal intercepting or use of communications, nearly all of it involves wired or wireless communications connected to interstate networks, so it nearly always falls into the federal government's jurisdiction.

What Are the Related Federal Statutes?

The federal statutes related to intercepting wire, electronic, and oral communications are listed in 18 U.S. Code Chapter 119, such as:

  • 18 U.S.C. 2510 - definitions;
  • 18 U.S.C. 2512 - manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices;
  • 18 U.S.C. 2513 - confiscation of communication intercepting devices;
  • 18 U.S.C. 2515 - prohibition of use as evidence;
  • 18 U.S.C. 2516 - authorization for interception;
  • 18 U.S.C. 2517 - authorization for disclosure;
  • 18 U.S.C. 2518 - procedure for interception;
  • 18 U.S.C. 2519 - reports concerning intercepted communications;
  • 18 U.S.C. 2520 - recovery of civil damages authorized;
  • 18 U.S.C. 2521 - injunction against illegal interception;
  • 18 U.S.C. 2522 - enforcement of the Communications Assistance for Law Enforcement Act.

Any unauthorized interception, disclosure, or use of wire, oral, or electronic communications is a federal felony. If you are convicted of violating 18 USC 2511, you could face up to five years in prison and a fine of up to $250,000. 

What are the Common Legal Defenses?

A few defenses may be available if you are accused of violating 18 U.S.C. 2511.

Your federal criminal defense attorney will devise a defense most suited to the circumstances surrounding your federal charges. Common defenses are discussed below.

Defenses for Intercepting Electronic Communications - 18 U.S.C. 2511

Perhaps we can argue that you qualify for one of the exceptions. For example, you were intercepting communications in your company role for the purpose of quality assurance, or you were cooperating with authorities.

Maybe you had the consent of the parties involved? "Intercepting" connotes a lack of consent. For example, if you are recording a conversation with full disclosure and consent of all parties, that action cannot be considered "intercepting."

Perhaps we can argue that you were unaware that the communications were illegally obtained. Prosecutors must show that you willfully violated 18 U.S.C. 2511.

If you're tasked with using or publishing recorded conversations that you didn't know were illegally intercepted, you are not a party to the crime.

Perhaps we can argue that there was an improper search and seizure by the government agents. This could lead to a dismissal of charges.

The federal criminal defense lawyers of Eisner Gorin LLP are located in Los Angeles, California. We provide legal representation across the United States on federal criminal issues. Contact our law firm for an initial case review via phone or fill out the contact form.

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