Law / United States / 
Virginia
Virginia Wiretapping, Eavesdropping and Disclosure of Communications Statute
In force.
An interception and recording consent rule binding public and private bodies.
- Obligation class
- Consent, Prohibition
What it requires
- Do not intentionally intercept a wire, electronic or oral communication, or have someone else intercept one, unless you are a party to it or one of its parties has given prior consent; one party's consent is enough.
- Do not intentionally disclose or use the contents of a wire, electronic or oral communication you know, or have reason to know, was obtained through interception.
- An electronic communication made through a system configured so that it is readily accessible to the general public may be intercepted without consent, and telephone equipment furnished by a provider, or by the subscriber for connection to the service, and used in the ordinary course of the subscriber's or user's business is not an intercepting device.
- If you provide an electronic communication service to the public, do not intentionally divulge the contents of a communication in transmission on your service to anyone other than an addressee, an intended recipient, or their agent, except with the lawful consent of the originator or an addressee or intended recipient, to a person forwarding it to its destination, as the provider-employee exception or section 19.2-67 allows, or, for contents inadvertently obtained that appear to pertain to a crime, to a law-enforcement agency.
These lines are LexLint's reading of the law's text.
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.
- FINOS AIGF
- AIR-PREV-005System Acceptance Testing
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
Intentionally intercepting, or disclosing or using a communication's contents obtained through interception, in violation of subsection A is a Class 6 felony; a public provider's improper divulgence of a communication's contents in violation of subsection C is a Class 1 misdemeanor.
Statutory damages
Actual damages or liquidated damages of $400 a day of violation or $4,000, whichever is higher; the liquidated-damages rate doubles to $800 a day or $8,000, whichever is higher, where the communication is between spouses, an attorney and client, a licensed healing-arts practitioner and patient, a licensed professional counselor, clinical social worker, psychologist or marriage and family therapist and client, or a clergy member and a person seeking spiritual counsel, plus punitive damages and a reasonable attorney fee and litigation costs.
- As of
- Currency
- USD
- Per person minimum
- 4,000
Who enforces it
Enforcement body
A private civil action under Va. Code 19.2-69; criminal prosecution by the Commonwealth.
Settledness
- As of
- Open questions
- Does a speaker who is told that a call is recorded still utter an "oral communication" exhibiting "an expectation that such communication is not subject to interception" under Va. Code section 19.2-61?
- Does an electronic communication in a system that any participant may join, such as a public chat room, come within "readily accessible to the general public" in Va. Code section 19.2-62(B)(3)(a)?
What this law does
It is a Class 6 felony to intentionally intercept, or procure another person to intercept, a wire, electronic or oral communication, or to intentionally disclose or use its contents knowing or having reason to know they were obtained through interception. It is not a criminal offense for a person to intercept a communication where that person is a party to it or one of the parties has given prior consent, so one party's consent is enough and a business may record its own calls.
An oral communication is protected only where the speaker exhibits an expectation that it is not subject to interception under circumstances justifying that expectation. An electronic communication does not include a communication through a tone-only paging device, a communication from a device that tracks the movement of a person or object, or electronic funds transfer information a financial institution stores.
To intercept is to acquire the contents through an electronic, mechanical or other device, a term that excludes telephone equipment furnished by a provider, or by the subscriber for connection to the service, and used in the ordinary course of the subscriber's or user's business.
It is also not an offense to intercept an electronic communication made through a system configured so that it is readily accessible to the general public, to intercept several categories of radio communication, to use a pen register or trap and trace device as sections 19.2-70.1 and 19.2-70.2 allow, or for a provider of electronic communication service to record that a communication was initiated or completed to protect itself, another provider or a user from fraudulent, unlawful or abusive use of the service.
A person or entity providing an electronic communication service to the public must not intentionally divulge the contents of a communication while in transmission on its service to anyone other than an addressee, an intended recipient, or their agent. It may divulge them as the chapter's provider-employee exception or section 19.2-67 allows.
It may also divulge them with the lawful consent of the originator or an addressee or intended recipient, to a person who forwards the communication to its destination, or, where the contents were inadvertently obtained and appear to pertain to a crime, to a law-enforcement agency. Violating the provider-divulgence duty is a Class 1 misdemeanor.
Anyone whose communication is intercepted, disclosed or used in violation of the chapter has a civil action for actual damages but not less than liquidated damages of $400 a day of violation or $4,000, whichever is higher, doubled to $800 a day or $8,000 for a communication between spouses, an attorney and client, a licensed practitioner of the healing arts and patient, a licensed professional counselor, clinical social worker, psychologist or marriage and family therapist and client, or a clergy member and a person seeking spiritual counsel, plus punitive damages and a reasonable attorney fee and litigation costs.
The provisions this entry describes came into force on different days.
When LexLint raises it
When your app profile says your app records calls, records text chat, processes voice recordings or deploys a chatbot.
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