In both Tennessee and Virginia it is unlawful to intercept any wire, oral, or electronic communication unless the interceptor is a party to the communication or one of the parties to the communication has consented to the interception. "Recording" a communication and "intercepting" a communication are not the same thing, however, so one can record a communication to which access was gained without "interception."
Tennessee's invasion of privacy statute is found at T.C.A. § 39-13-601 et seq. Under that statute a person commits a criminal offense who, among other things, "[i]ntentionally intercepts ... any wire, oral, or electronic communication..."
"'Intercept' means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." T.C.A. § 40-6-303(11). An "'electronic, mechanical, or other device' means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than" a telephone used in the "ordinary course of business;" or a "hearing aid ... being used to correct sub-normal hearing to not better than normal." T.C.A. § 40-6-303(9).
An in-person conversation (as opposed to a telephone conversation) is an "oral communication" which is defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but 'oral communication' does not include any electronic communication." T.C.A. § 40-6-303(14).
Telephone conversations (not including cellular phones which are separately covered under T.C.A. § 39-13-104 and not discussed herein) are "wire communications" defined as "any aural transfer made ... through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception..." T.C.A. § 40-6-303(19).
While it is a violation of the Tennessee statute to "intercept" an in-person conversation or a telephone conversation, the Tennessee statute includes an important exception. "It is lawful ... for a person ... to intercept a wire, oral, or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the state of Tennessee." T.C.A. § 39-13-601(5). Regardless of participation or consent, it is still "unlawful to intercept any wire, oral, or electronic communication for the purpose of committing a criminal act." T.C.A. § 39-13-601(6).
Thus, I can "intercept" an in-person conversation or telephone conversation to which I am a party or one of the parties consented to my "interception." If I am not a party to the conversation or if one of the parties to the conversation has not given consent, I cannot intercept it. This does not necessarily mean that I cannot record the conversation, however. "Recording" a communication and "intercepting" it are not necessarily the same thing.
"Recording" and "Intercepting" Distinguished
Whether a recording is an "interception" for purposes of the Tennessee statute seems to turn on whether the person recording the conversation was close enough to the speakers to hear it anyway. If that is the situation, the Courts treat the recording as merely a memorialization of a conversation the non-party listener overheard naturally, and not an "interception." See Mimms v. Mimms, 780 S.W.2d 739 (Tenn. App. 1989) (husband's recording of wife's conversation he overheard while hiding near her was not a wiretap because he heard the conversation with his own ears, and as such, there was no "interception"). Thus, the case law suggests that an "interception" requires some positive act to gain access to an otherwise inaudible communication, such as by splicing a phone line or planting a bug in a briefcase in someone's office. United States v. McIntyre, 582 F.2d 1221 (9th Cir. 1978) (interpreting the federal wiretapping law upon which Tennessee's is based).
Besides criminal liability, a person who unlawfully intercepts a communication in violation of T.C.A. § 39-13-601 et seq. can also be subject to civil liability. T.C.A. § 39-13-603 provides civil relief to "any aggrieved person whose wire, oral or electronic communication is intentionally intercepted, disclosed, or used in violation of § 39-13-601..." Such "aggrieved person" may recover (1) the greater of (A) actual damages; or (B) statutory damages of $100 a day for each day of violation or $10,000, whichever is greater; and (2) punitive damages; and (3) reasonably attorney's fees and costs. T.C.A. § 39-13-603(a).
Defenses to Criminal and Civil Liability
A criminal or civil defendant can escape liability if he can show "that there was a good faith reliance on a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization..." T.C.A. 39-13-603(c).
Statute of Limitations
Finally, an action for civil damages must be commenced no later that 2 years "after the date upon which the claimant first discovered or had reasonable opportunity to discover the violation." T.C.A. § 39-13-603(d).
Virginia's invasion of privacy statute is found at Virginia Code § 19.2-62 Under that statute a person commits a criminal offense who, among other things, "Intentionally intercepts, endeavors to intercept ... wire, electronic or oral communication."
The definitions in Virginia Code § 19.2-61 for "wire communication," "oral communication," intercept," and "electronic, mechanical or other device" are identical to the Tennessee definitions. The language defining the elements of the criminal violation is also very similar to the Tennessee statute. Virginia Code § 19.2-62 states, in pertinent part:
A. Except as otherwise specifically provided in this chapter and person who:
1. Intentionally intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept, any wire, electronic or oral communication;
. . .
4. ... shall be guilty of a Class 6 felony.
An exception, similar to that in Tennessee, also exists in Virginia. "It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic, or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." Va. Code § 19.2-62(B)(2).
"Recording" and "Intercepting" Distinguished
Virginia, more clearly than Tennessee, recognizes the distinction between "intercepting" and "recording." In Cogdill v. Commonwealth, 219 Va. 272 (1978), the Supreme Court of Virginia recognized:
a basic distinction between an interception of the contents of a communication on the one hand and a recording of the contents on the other. The former is an "aural acquisition," an acquisition by overhearing; the latter is a recordation of what has been thus acquired. The Act proscribes the former when accomplished by use of a defined "device"; the Act does not proscribe the latter, even when accomplished by use of a "device." Id. at 277.
This distinction is recognized because "Congress was concerned with devices that 'overhear' conversations rather than devices that record conversations." Hulcher v. City of Richmond, 1993 WL 946243 (Va. Cir. Ct. Richmond 1993) (citing Smith v. Wunker, 356 F. Supp. 44, 46 (S.D. Ohio 1972)).
Civil Liability and Defenses to Criminal and Civil Liability
Finally, Va. Code § 19.2-69 provides for a civil action in which any "person whose, wire, electronic or oral communication is intercepted" may recover from the interceptor:
- Actual damages but not less that liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
- Punitive damages; and
- 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.
Therefore, while the end result of what is and is not lawful concerning wiretaps is the same in Virginia as it is in Tennessee; one small difference between the Tennessee statutes and the Virginia Act is the amount of liquidated/statutory damages that a civil plaintiff can recover. Tennessee allows up to $10,000 in statutory or actual damages, while Virginia puts no limit on actual damages but caps liquidated damages at $1,000.
Statute of Limitations
Another small difference between the Tennessee and Virginia statutes is the applicable statute of limitations for a civil action based on a violation of the wiretapping statutes. As mentioned earlier, the Tennessee statute specifically spells out a two-year statute of limitations. The Virginia statute contains no specific statute of limitations, so one has to look to the general limitations periods spelled out in Title 8.01 of the Virginia Code.
In Eshaghi v. Kunz, 1997 WL 1070539 (Va. Cir. Ct. Chesterfield County 1997), the court held the civil action in that case brought under the Wiretapping Act was not an action for "personal injury," so the two-year statute of limitations prescribed in Va. Code § 8.01-243 did not apply. Rather, the court held that the one-year limitation period in Va. Code § 8.01-248, which applies to "[e]very personal action, for which no limitation is otherwise prescribed" was the appropriate statute of limitations. (§ 8.01-248 has since been changed to two years.)
Attorneys Held to a Higher Standard
While a surreptitious recordation of a conversation may not rise to the level of illegality under federal or state law, an attorney who engages in such conduct or advises another to do so may still be subject to disciplinary action under the applicable state Rules of Professional Conduct. See Gunter v. Virginia State Bar, 238 Va. 617, 385 S.E.2d 597 (1989); Virginia Legal Ethics Opinion, 1738 (2000).
The Tennessee and Virginia Wiretapping statutes are very similar. In short, an individual can "intercept" a face-to-face or telephone conversation if the individual is a party to the conversation or one of the conversation's participants has consented to the "interception." "Recording" is not synonymous with "intercepting," and one can record a conversation so long as it does not require an "interception," defined generally as the use of a "device" to overhear an otherwise inaudible conversation. Attorneys, however, should take note of professional ethics guidelines before engaging in such conduct or advising others to do so.