1055
Exceptions to the ProhibitionsOther Consensual
Interceptions
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When not acting under color of law, a person who intercepts a
communication with the consent of a party does not violate Section 2511(1)
unless
the communication is intercepted for the purpose of committing any criminal
or
tortious act in violation of the Constitution or laws of the United States
or of
any state. 18 U.S.C. § 2511(2)(d). Consent may be expressed or
implied.
Indeed, "(s)urveillance devices in banks or apartment houses for
institutional
or personal protection would be impliedly consented to." S.Rep. No. 1097,
90th
Cong., 2d Sess. 94 (1968). The Criminal Division believes that consent can
be
implied where the communication involves institutional or personal
protection,
the interception is limited to the minimum necessary to fulfill that
interest,
and a communicating party is notified that his or her communications are
subject
to interception. See Watkins v. L.M. Berry & Co., 704 F.2d
577
(11th Cir. 1983). The Criminal Division also believes that the "tortious
purpose" must be a tortious purpose other than the mere intent to
surreptitiously
record a communication. See Roberts v. Americable International,
Inc., 883 F. Supp. 499, 503 (E.D. Cal. 1995).
[cited in USAM 9-60.200] | |