RE: Interfamilial wiretapping
Question Presented
Whether the wife of the man who recorded calls between his wife and their son, who is at boarding school, and between his wife and the school headmaster has sufficient claim against the husband
Brief Answer
No, the woman do not have sufficient claim against the husband as Title III has some exemptions that can be used to clear a man involved in intercepting calls designated to his wife or any member of his family. Even though Article III is not clear about the exceptions related to familial affiliations, most courts have been able to demonstrate that such exceptions can be granted to cases whereby no criminal intent is foreseen.
Based on the evidence that has been presented before the court, my client did not have the necessary mens rea to commit the crime presented by the plaintiff.1 My client did the wiretapping for the good of the family in order to ensure that his son was not exposed to any danger that could jeopardize his performance in school or put his life at risk.
According to the evidence that has been presented in the court by the plaintiff, my client did not have the guilty mind to commit the stated crime. The jury must find that the defendant had a criminal intent while intercepting the telephone conversation in order to convict him of the crime stated. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, prohibits any kind of wired tapping of a conversation between two parties involved in the communication.2 However, the Act is not very clear about the exceptions pertaining to this law. Most courts have found it prudent to exempt cases of wiretapping that involves spouses or members of a given family. The law also has some exemptions on investigation purposes. However, it does not state when a person qualifies to perform wiretapping for investigation purposes.
My client (the man) intercepted the telephone conversation between his wife and the headmaster of the school where his son was learning. Even though Title III prohibits wiretapping of verbal communication, my client did not contravene this law as there are some exemptions to the law. The law is not very clear about inter-spousal relationship and parent-minor relations as far as this Act is concerned. The law also states very clearly that if a person intercepts a conversation unwillingly, then he/she can be exempted. The plaintiff has failed to demonstrate whether my client really contravened the law by tapping into the communication since the law is not very clear about the familial kinds of relationships and communication. Wiretapping is illegal for any kind of communication interception. However, there are some exemptions to this kind of Act. Some of the exemptions that come with this Act include: the marital conflict exception, telephone exception and the vicarious consent exception. Very few courts may find a violation of the Federal Wiretap Act when a parent eavesdrop or secretly records a telephone conversation in the family home. Actually the Federal Wiretap Act prohibits any person from intercepting another person’s telephone conversation. However, the courts have agreed that the wiretapping in the parent-child context falls outside the statutory prohibitions.
Since the law allows wiretapping for investigation purposes, my client was also in order to wiretap the conversation between his wife and their son as the law exempts such cases. Even though the law does not blatantly demonstrate when a person can be categorized as one who the exemption applies to, my client was within the law to wiretap the conversation that he deemed suspicious. His claims can also be confirmed since some of the communications that his wife exercised was very suspicious. My client therefore acted within the law to intercept and get the communications that was going on between the wife, the son and the headmaster. This could enable him to take cautionary measures for his own good and that of his family.
The Wiretap Act permits such types of interceptions like inter-spousal interception. Like in the case of Schieb V. Grant,3 the father who used of an extension phone to record the conversation between his minor son with the mother had an alibi as it was permissible under the Wiretap Act, and so do my client have an alibi since he also tapped the telephone conversation between his minor son and the mother which is still permissible under the Wiretap Act. Since there is an exception to this kind of law especially in relation to the familial affiliations, the plaintiff does not have any case against my client as my client acted within the law since the law did not deter him from carrying out such an operation.
The plaintiff has also failed to sufficiently demonstrate that my client (the defendant) acted with knowledge that the information which was used came from some form of intercepted communication and that he knew that the information interception was prohibited. There is no evidence that can support such claims by the plaintiff. Therefore according to the Article III, we can sufficiently say that my client did not contravene any of the stated laws as per Article III.
Some courts have also failed or have become reluctant to find the vicarious consent. They have therefore decided to focus on the congress’ intention of keeping off such decisions involving familial relationships. Like in the case of NewComb V. Ingles of a child bringing a case against his mother and a grandfather about a purported tapped conversation between the child and the father, the court simply applied the telephone exemption rule and found out that the case was not material.4 Another case of Commonwealth V Barboza whereby the parent decided to tap a conversation between their child and a purported sexual assaulter did not contravene Article III. Therefore like in the case with my client, there are some instances whereby the exemptions can be applied for the good of the family. 5
Discussion
The interception and disclosing of any form of wire communication is outlawed under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. This Act was enacted so as to assure the privacy of all oral and wire communication and also define the circumstances whereby this law can be exempted. According to this law, any person who intercepts by wire the private conversation of another person is subject to both the criminal prosecution and civil suit. However, this Act does not apply to cases whereby the interception occurs between spouses or members of a family. There are several domestic exemptions that are aimed at clearing anyone involved within the family of any wrong doing. The tenth circuit also recognized a parental or interfamilial exception to the Act.
The fifth circuit created an implied exception for the inter-spousal wiretapping. This was aimed at promoting tranquility in the home, the Simpson court ruled that issues which are related to marital disputes and conflicts that may arise in the home setting, usually fall outside the purview of the federal wiretap statue and therefore should be handled as per the provisions of the state law. 6
I. A court would most likely find that my client did not contravene the Title III Act
There is no any clear clarification about the exemption of the family members or a spouse as per the Act. The Act is also tantamount it as a criminal offense if the interception is done with the wrong intentions. The intentions for my client were obviously not for criminal purposes. Apparently, the law fails to state when an interception can be termed to be contravening the Act and when it can be said to be within the law. It is the same Act that clears the law authorities to intercept any kind of telephone conversation. It is not clear when a person can be cleared on wrong doing and when a person can be termed to be contravening the law. Therefore by my client intercepting the telephone conversation between his wife and the son is not covered within the Act and therefore it cannot be said that he went against the Act.
II. A court would most likely find that my client was within the law to tap the conversation
My client was tapping the conversation for the purposes of carrying out investigations and in order to confirm that all went on well at school. The law states that if a person taps a conversation unknowingly then he can be cleared off any offense. The plaintiff has also failed to demonstrate that my client was aware of the telephone recording and has also failed to demonstrate whether my client had any criminal intention towards tapping the telephone conversation.
III. A court would most likely find out that the conversations that the plaintiff had with the son and the headmaster were ill-motivated and therefore my client was right in his suspicion in order to tap the telephone conversation.
According to the information presented from the telephone conversation, it is clear that the plaintiff had some ill-motivated intentions. This is evident in the conversations that the plaintiff had with both their son and the headmaster of the primary school whereby the son was learning. My client therefore upon suspicion and without realizing any offense in trapping the conversation as it is not clearly stated in the Act launched an investigation that helped him gather information that he could use to rectify the situation.
Wiretapping in the marital home is covered by Article III. However it can be realized most courts been reluctant to extend the reach of article III to the parent child context. Such courts have focused on the legislative history and the intention of Congress on Article III. Such courts have also shown that there are some concerns about the evidence from wiretaps being used in the marital disputes. Such evidences are qualitatively different. The courts have also relied on the vicarious consent. In both cases, it can be sufficiently shown that parents usually do not have any bad intention in trying to tap the communication between their children and other spouse. 7
There is however greater authority for the recording of phones conversations involving the minors that that involving the other spouse. However, such conversations that involve the spouses are not sufficiently covered in the Article III. The provision can instead be found in the federal suits involving familial issues and not really categorized under Article III.
IV. The court would also find that the intention of tapping the telephone conversations were not for criminal activities
The Defendant (my client) did not have any ill-motivated intention for eavesdropping into the conversation between the mother and the child and the headmaster but the wife had. All the tapped information that can be presented to the courts upon request contains some suspicious statements that can sufficiently show the court that the wife did not have good intentions for engaging in the tapped conversation. Once again, the defendant was acting in the interest of the minor and wanted to protect his family before things became worse.
V. The court would also find that Article III does not prohibit a parent from monitoring information presented to his/her child who is still a minor.
It is the right of every responsible parent to ensure that his/her minor child is supplied with the best kind of information available. It is therefore a concern if a parent feels that his child is being misguided. He/she (the parent) can therefore go extra miles to correct such a situation before things move from bad to worse. My client was trying to monitor the information given to his son so that he could ascertain that he was not being misguided. My client was therefore trying to monitor the conversation so that he could know whether the mother was guiding the child accordingly. The conversation as I said before looks suspicious and this one confirms the claims of my client. 8
Conclusion
References
1. Allan H. Zerman & Cary J. Mogerman, Wiretapping and Divorce: A Survey and Analysis of the Federal and State Laws Relating to Electronic Eavesdropping and Their Application in Matrimonial Cases, 12 J. AM. ACAD. MATRIM. LAW 227, 228 (1994).
2. David J. Anderson, Title III At A Crossroads: The Ordinary Course of Business in the Home, The Consent of Children, and Parental Wiretapping 141 U. Penn. L. Rev. 2261, 2290 (1993)
3. Gerald O. Koocher, Children Under Law: The Paradigm of Consent in Reforming the Law, 3, 14 (Gary B. Melton ed. (1987).
4. Kratz v. Kratz, 477 F.Supp. 463, 476 (E.D.Pa. 1979)
5. Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir. 1998)
6. Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984)
7. S. REP. NO. 1097, 90th Cong., 2d Sess., 89 (1968).
8. Scheib v. Grant, 22 F.3d 149, 153 (7th Cir. 1994).
9. Stacy L. Mills, He Wouldn’t Listen to Me Before, Interspousal Wiretapping and an Analysis of State Wiretapping Statutes, 37 BRANDEIS L.J. 415, 429 (1998)
10. Tania E. Wright A Minor’s Right to Consent to Medical Care, 25 Howard L. Review 525, 528-538 (l982)
