Request By:
Greg Gerlach, Anchor/Reporter
WLEX-TV
P.O. Box 1457
Lexington, Kentucky 40591-1457
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion of this office concerning the following fact situation:
You state that conversations of persons from an office of a company were overheard on a scanner and were then taped from the scanner and a shortwave radio. The conversations occurred from a wireless phone. None of the parties involved knew he was being tape recorded. You further state the "tapes were given to us by an anonymous person."
Tou ask the following questions:
1. Can we play the tapes on the air?
2. Can we refer to the tapes in our news scripts?
3. Can we legally use these tapes for anything at all?
Usually, this office does not issue official opinions to private persons unless the subject matter involves tax or election questions. (Department of Law Regulation 40 KAR 1:020). However, inasmuch as your request includes a novel and important question of interest to the general public, we can issue a formal opinion thereon.
Kentucky's eavesdropping statutes are found in KRS Chapter 526. KRS 526.020(1) provides:
A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop, whether or not he is present at the time.
KRS 526.010 defines "eavesdrop" as:
. . . to overhear, record, amplify or transmit any part of a wire or oral communication of others without the consent of at least one party thereto by means of any electronic, mechanical or other device.
KRS 526.070(1) provides:
A person is not guilty under this chapter when he:
(1) Inadvertently overhears the communication through a regularly installed telephone party line or on a telephone extension but does not divulge it.
You point out in your letter that, "What makes this case interesting is the fact that wireless phones were used and that virtually anyone can listen in to these conversations if they have the right equipment."
Of course, we understand that wireless phones are, in fact, small radio transmitters and receivers and that anyone within a few hundred feet of such devices may overhear conversations emanating therefrom.
A person inadvertently hearing such conversation from a radio receiver or on another wireless telephone has not violated KRS Chapter 526 since he would fall within the exception cited in the first part of KRS 526.070.
But, when he records that information and passes it on to another without the consent of one of the parties to the original conversation, he has violated the eavesdropping statutes.
Were your station to play that tape without the consent of one of the original parties to the conversation, your station and its employees doing so would be in violation of KRS 526.060.
Besides the state statutes involved, such activity could violate the Federal Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. 2510, et seq.) which prohibits the interception of private communications except under certain controlled exceptions.
Persons using a telephone line have an expectation of privacy in the contents of such communication. In the aforesaid Act, Congress intended to protect that right and punish those who violate its terms.
Again, the mere inadvertent overhearing of the conversation is not a violation. The recording of same (not by any party to the conversation) by a third party and disclosure to a fourth is a willful violation and the broadcasting of same is likewise a violation.
Further, 18 U.S.C. 2520 provides:
Recovery of civil damages authorized
Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person --
(a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
(b) punitive damages; and
(c) a reasonable attorney's fee and other litigation costs reasonably incurred.
A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.
So, if you play the tapes on the air without the consent of the original conversationalists, you can be subject to both state and federal criminal prosecutions and can be sued for civil damages.
Questions 2 and 3 cannot be answered definitively in the absence of facts as to how the tapes were referred to and how they were used.
We suggest that, before you use these tapes in any fashion, your station consult its legal counsel and advise him the specifics of how you plan to use the tapes. It is obvious that, based on the aforesaid statutes, the wrongful use thereof can be very expensive to your station and can result in criminal prosecution.