When many people think of wiretapping, they imagine the CIA, FBI or state police listening in on criminals’ phone conversations in order to build criminal cases against them. While law enforcement agencies do tap into the conversations of criminals in order to disrupt and shut down criminal enterprises, many instances of wiretapping are undertaken by citizens against fellow citizens. In fact, perhaps the most common form of wiretapping is plain old “listening in” to the conversations of loved ones. Maybe a parent wants to find out what a child is up to and listens in on a conversation between the child and a friend. Maybe a spouse wants to find out if her husband is cheating and listens in on his conversations with friends. Is that legal?

It depends.

A panoply of state and federal statutes—or written laws—address the legality of wiretapping in different jurisdictions and circumstances. The term “wiretapping” is somewhat obsolete; most modern communications proceed wirelessly or via text or electronic messaging, so if someone wants to know what a person is saying in private, in general there aren’t any wires to “tap” anymore. As a legal term, however, “wiretapping” envelopes far more than the tapping of old telephone wires. Most modern statutes define wiretapping as the interception of wire, oral, or electronic communication, or the disclosure of any information that was obtained through the interception of such communications.

In North Carolina, only one party has to consent to the recording or disclosure of communications. That means you can agree, to yourself, to record your conversation with a person who is in North Carolina, and you do not need that person’s consent to record the conversation. If the person on the other end of your call is in another state, however, you may need that person’s consent to record the conversation, depending on the wiretapping laws of that state.

Not surprisingly, disputes over wiretapping often arise in divorce cases. One spouse believes another spouse is cheating and wants solid proof adultery. So the jilted spouse hides a camera in the bedroom, plants a recording device on a cell phone, or hides an audio recorder in the spouse’s car.

These actions may land the suspicious spouse in hot water. North Carolina is a “one-party” consent state, but if a wife sets up a recording device in a bedroom and records her husband speaking with a mistress, who has consented? The wife consented, but she was not a “party” to the conversation. The parties to the conversation were the husband and the mistress. Neither of these parties consented to being recorded; they did not even know they were being recorded. The wife has committed a crime.

Aside from potential criminal penalties for illegal wiretapping, a person who is found guilty of illegal wiretapping may be subject to civil penalties including fines, punitive damages and attorneys’ fees. In addition, a person who engages in illegal wiretapping can be sued by the people that he or she has recorded. In general, judges and juries do not take such violations lightly, and those who have engaged in illegal wiretapping can expect to have their pockets punished when damages are assessed.

Wiretapping and the laws that govern it can be exceedingly complicated. This is an age in which seemingly everyone everywhere is recorded all the time. Determining whether a recording made of your conversation or actions was an act of illegal wiretapping depends on the unique facts and circumstances of your case.

If you believe you or someone you know has been the victim of an illegal wiretapping scheme, or if you have engaged in illegal wiretapping intentionally or unintentionally, our team of experienced attorneys may be able to help. Our experienced attorneys can help you identify and prosecute causes of action against those who have harmed you or your reputation. Or, as the case may be, we can assist you in defending yourself against allegations of illegal wiretapping. Please contact our team of experienced Family Law attorneys today at 704-370-2828 or Contact Us to set up an appointment.