The surreptious recording of a conversation by a party to the conversation does not violate the federal Wiretap Act, where the party had no intent to use the recording to commit a criminal or tortious act, the U.S. Court of Appeals for the Second Circuit ruled. The court construed the one-party consent provision of 18 U.S.C. § 2511(2)(d), which forbids a person who is a party to a conversation to record it, if the "oral . . . communication is intercepted for the purpose of committing any criminal or tortious act." The court concluded that in order to violate the act, the "criminal or tortious act" must be separate and apart from the act of making the recording itself. The court further concluded that while the complaint alleged a claim for the Connnecticut state law tort of intrusion on seclusion, and that the elements of that tort could be satisfied by the act of surreptious recording, the Congressional intent behind the statute was to prevent abuse stemming from the use of recordings, not the mere act of recording. Consequently, the court reasoned, the state law tort claim could not satisfy the federal statutory requirement of intent to commit a tortious act.

Caro v. Weintraub, 2010 U.S. App. LEXIS 16755 (2d Cir. Aug. 13, 2010) Download PDF

Editor’s Note: The recording took place in the context of a family dispute over administration of an estate; the recording was made by an iPhone device placed on a kitchen table. In another action involving surreptious recording in the context of a domestic dispute, the court in Lewton v. Divingnzzo, 2010 U.S. Dist. LEXIS 89149 (D. Neb. July 28, 2010), declined to dismiss federal and Nebraska state wiretap claims against a parent involved in a child custody dispute, rejecting the argument that the prohibitions on wiretapping were categorically inapplicable to parents seeking to protect the welfare of a child. The defendant parent admitted inserting a recording device into a child's teddy bear, which recorded conversations between the child and the non-custodial parent, as well as conversations not involving the child.