Eavesdropping in America: Is it Legal?

Februar 7, 2014

Eavesdropping in america

If you’re about to buy mobile spy software, you might be asking yourself,
“Am I going to go to jail for using it?”

Elvis - Eavesdropping in America

The short answer is, “it depends.”

OK, that was a typical lawyer’s response to any question.  So, I’ll explain it so you can avoid getting thrown into the slammer.

In the U.S. – for the most part – it is perfectly legal to record telephone conversations, as long as one party to the conversation consents to the listening or recording.  If someone allows you to install the spyphone software on their phone, you can legally record or listen to their calls.

Let’s start with federal law.  You might be asking, how would that apply to me?  Well, more than 2.5 million Americans live on military bases.

If you live on federal land, then you’re covered by federal law.  The seminal case for federal call interception law is Simpson v. Simpson (5th Cir. 1984).  In Simpson, the Court ruled that Congress never intended to prohibit a person from intercepting a family’s member’s telephone conversations.  So, under federal law, no consent is even required.  The courts have decided Congress left call interception up to the states and no federal eavesdropping law applies.

What if I don’t live on federal land?  If you don’t live on federal land, state eavesdropping laws apply.  In 38 states, one party must consent to the listening or recording of a telephone conversation.  This means that if you install monitoring software on a phone with the owner’s consent, you can legally listen to and record the conversations on that phone.

In a one party consent state, as long as the call is intercepted or recorded without criminal or tortious intent, there can be no prosecution for violation of an eavesdropping law.  Copeland v. Hubbard Broadcasting, Inc., 526 N.W.2d 402 (Minn. Ct. App. 1995).  For instance, see Mo. Rev. Stat. § 542.402 (“An individual who is a party to a wire communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents, unless the person is intercepting the communication for the purpose of committing a criminal or tortious act.”).


What about monitoring my child on their phone?  Intercepting and recording the conversations of your children is perfectly legal.  Bishop v. State, 252 555 S.E.2d 504 (Ga. Ct. App. 2001).  In Bishop, the court held that parents have a right, and even a duty, to protect the welfare of their children, which might require call eavesdropping or recording.

Hot Dog!  I’m set.

Not quite.  In those other 12 states (including California), both parties to the conversation must consent to the recording of a conversation.  This means that you would have to inform the other party to the conversation that you were making a recording.  In the alternative, you can create a beeping alarm that provides a warning to the caller that the call is being recorded.

The courts, however, haven’t imposed this strict interpretation of eavesdropping laws on all call intercepts.  The rule of law is that there must be a reasonable expectation that no one else could overhear the conversation, before the courts will assign a privacy right to the call.  Wilkins v. NBC, Inc., 71 Cal. App. 4th 1066 (Cal. Ct. App. 1999).  A call made in a public place is free to be intercepted.

Realistically, any criminal prosecution for wiretapping would require that the recording of the phone call be made public.

So, posting the content on the internet, in a newspaper, or even playing the recording for a third party, is probably illegal. This holds true even if there was consent to the recording.  The reason for this is that there is a reasonable expectation that phone calls are private, and by making the content of that call public, it can cause damage to the people who made the phone call.  Every state, except Washington, Montana and South Dakota, has a law prohibiting the publication of telephone communications without consent of all parties.

In short, using spyphone software is not going to cause you any legal problems, so long as you keep the information you gather to yourself. You should never make the recordings public in any way, or even inform the call participants you have monitored or recorded their phone call. The advantage to using a product like FlexiSPY, is that it is undetectable. So, its installation and use won’t land you in the slammer. Just make sure to keep the details of your monitoring a secret.

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