United StatesWiretap Act
In force.
An interception and recording consent rule binding public and private bodies.
- Obligation class
- Consent
What it requires
- Get the consent of at least one party to a wire, oral, or electronic communication before intercepting, recording, transcribing, or disclosing its contents; consent from a person who is themselves a party to the call is enough under federal law even without the other party's knowledge, unless the interception is for the purpose of committing a crime or a tort.
- Expect a civil suit from anyone whose communication you intercept, disclose, or use without the required consent, for the greater of actual damages plus your profits, or statutory damages of $100 a day per violation or $10,000, whichever is greater, plus punitive damages and the plaintiff's attorney's fees.
- Expect criminal exposure of a fine or up to five years' imprisonment for an intentional violation.
These lines are LexLint's reading of the law's text. Also read by: In re Facebook, Inc. Internet Tracking Litigation, No. 17-17486 (9th Cir. ) (recorded ).
In the frameworks
- NIST Privacy Framework
- CT.PO-P1Policies, processes, and procedures for authorizing data processing (e.g., organizational decisions, individual consent), revoking authorizations, and maintaining authorizations are established and in place.
Our reading of where this law's duties sit in each framework. It never says that running a control meets the law. How we read a framework against the law
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
Whoever violates the interception prohibition is fined under Title 18 or imprisoned not more than five years, or both.
Statutory damages
The court may award the greater of actual damages plus the violator's profits, or statutory damages of $100 a day for each day of violation or $10,000, whichever is greater, plus punitive damages in appropriate cases and a reasonable attorney's fee.
- As of
- Currency
- USD
- Per person minimum
- 10,000
Who enforces it
Enforcement body
Private civil action under 18 U.S.C. 2520; criminal prosecution by the United States
Settledness
- As of
- Case link
- https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/09/17-17486.pdf
- Case citation
- In re Facebook, Inc. Internet Tracking Litigation, No. 17-17486 (9th Cir. )
- Open questions
- Does the 'party to the communication' exemption in 18 U.S.C. 2511(2)(d) cover a person whose software receives a user's request and, unknown to the user, duplicates it to a third party, in a circuit that has not decided whether to follow In re Facebook, Inc. Internet Tracking Litigation?
- What counts as 'the purpose of committing any criminal or tortious act' under 18 U.S.C. 2511(2)(d) when a party to the communication records it for a commercial purpose and not to commit a crime or tort in itself?
What this law does
It is unlawful to intentionally intercept, or procure another person to intercept, a wire, oral, or electronic communication, but federal law requires the consent of only one party to the communication: a person who is themselves a party to the call, or who has the prior consent of one of the parties, may record or disclose it without the other party's knowledge, unless the interception is for the purpose of committing a crime or a tort.
A person whose communication is intercepted, disclosed, or used in violation of this chapter has a civil action for the greater of actual damages plus the violator's profits, or statutory damages of $100 a day per violation or $10,000, whichever is greater, plus punitive damages and attorney's fees. An intentional violation is also a federal crime punishable by a fine or up to five years' imprisonment. The provisions this entry describes came into force on different days.
How courts have read itPremium data
Our analysis of this law draws on 28 court rulings.
What each ruling held, what it means for an app, and whether it still stands are premium data, in the Plus, Pro and Enterprise plans.
When LexLint raises it
When your app profile says your app records calls, records text chat or processes voice recordings.
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