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Scope of 18 U.S.C § 2511 Prohibitions
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Section 2511 of Title 18 prohibits the unauthorized interception,
disclosure, and use of wire, oral, or electronic communications. The
prohibitions are absolute, subject only to the specific exemptions in Title
III.
Consequently, unless an interception is specifically authorized, it is
impermissible and, assuming existence of the requisite criminal intent, in
violation of 18 U.S.C. § 2511.
Section 2511(1)(a) is a blanket prohibition against the intentional
interception, endeavor to intercept, or procurement of another person to
intercept or endeavor to intercept any wire, oral, or electronic
communication.
Section 2511(1)(b) is applicable only to oral communications. It
is
less pervasive than the prohibition against the interception of oral
communications contained in Section 2511(1)(a) and was included because of a
question "concerning the constitutionality of Section 2511(1)(a) as it
relates
to oral communications." See S.Rep. No. 1097, 90th Cong., 2d Sess.
92
(1968); United States v. Burroughs, 564 F.2d 1111, 1115 (4th Cir.
1977).
The Criminal Division recommends that Section 2511(1)(b) should be charged
in
cases involving interception of oral communications. However, although the
interception of an oral communication may violate both 2511(1)(a) and (b), a
person may be convicted of only one offense under the section. See
S.Rep.
No. 1097, 90th Cong., 2d Sess. 93 (1968).
Section 2511(1)(c) and (d) of Title 18 provide additional penalties
for
the disclosure and use of illegally intercepted communications. The use or
disclosure must be accompanied by knowledge or reason to know that the
information concerned was obtained through an interception which violated 18
U.S.C. § 2511(1). The knowledge element can be satisfied either when
the
subject has actual knowledge or when the occurrence of the element "can
reasonably be foreseen." Pereira v. United States, 347 U.S. 1, 9
(1954).
Section 2511(1)(e) was added as one of the miscellaneous provision
in
the Violent Crime Control and Law Enforcement Act of 1994. It specifically
prohibits (i) intentional disclosure of the contents of a wire, oral or
electronic communication, intercepted by certain authorized procedures, (ii)
knowing or having reason to know that the information was obtained through
interception of such a communication in connection with a criminal
investigation,
(iii) having obtained or received the information in connection with a
criminal
investigation, and (iv) with intent to improperly interfere with a duly
authorized criminal investigation.
Once the contents of an intercepted communication have become
"public
information" or "common knowledge," disclosure or use of the contents of the
communication is no longer prohibited. See S.Rep. No. 1097, 90th
Cong.,
2d Sess 93 (1968).
[cited in USAM 9-60.200] | |