Electronic Surveillance Laws

state laws || pending state legislation
federal laws || contacts

Electronic surveillance is also examined in a brief that is part of NCSL's series, "States Respond to Terrorism," which surveys states' efforts to protect democracy from future terrorist attacks.
Electronic Surveillance involves the traditional laws on wiretapping--any interception of a telephone transmission by accessing the telephone signal itself--and eavesdropping--listening in on conversations without the consent of the parties.
Following the tragedies of September 11, there is growing support to give law enforcement agencies more power to tap into private communications to thwart further acts of terrorism by monitoring private electronic communications. State and federal policymakers face the challenge of balancing security needs via electronic surveillance against the potential erosion of individual privacy.

State Laws: Chart

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State Cite Includes Photo/Video Includes Cellphones Specically mentions "electronic" or "computer"? Notes Party Consent

Alabama Ala. Code §13A-11-30 yes - Ala.
Code § 13A-11-32 1

Alaska §42.20.310 yes, if contain nudity - Alaska Stat. § 11.61.123. yes yes 1

Arizona Ariz. Rev. Stat. Ann. §13-3005 yes yes 1

Arkansas Ark. Code §5-60-120 Ark. Code §5-16-101 yes - Ark. Code §5-16-101 yes yes 1

California Cal. Penal Code §631, 632 yes - Cal. Penal Code §647 yes yes one party may tap phone if related to serious crime; includes pagers all

Colorado Colo Rev. Stat. §18-9-303 yes yes 1

Connecticut Conn. Gen. Stat. §52-570d: yes - §31-48b(b) yes yes law enforcement must get approval by panel of judges for taps all

Delaware Del. Code Ann. tit. 11, §2402(c)(4) yes - Del. Code Ann. tit. 11, § 1335(2), (6) "trespass by other means of communicating privately" under invasion of privacy law all

DC D.C. Code Ann. §23-542 tapes kept until ordered to be destroyed by judge 1

Florida Fla. Stat. ch. 934.03 yes yes business recordings do not violate law all

Georgia Ga. Code Ann. §16-11-62 yes yes yes phone companies must keep public list of all subscribers using monitoring equipment 1

Hawaii Haw. Rev. Stat. §803-42 yes yes all

Idaho Idaho Code §18-6702 yes 1

Illinois 720 ILCS 5/. yes - 720 Ill. Compiled Stat. Ann. 5/26-4(a) yes business may monitor employees at work all

Indiana Ind. Code Ann. §35-33.5-1-5 yes 1

Iowa Iowa Code §727.8 "communication of any kind," 1

Kansas Kan. Stat. Ann. §21-4001 yes 1

Kentcky Ky. Rev. Stat. Ann. §526.010 yes - Ky. Att'y Gen. Op. 84-310 Divulging information obtained through illegal eavesdropping is a separate crime classified as a misdemeanor 1

Louisiana La. Rev. Stat. §15:1303 yes - La. Rev. Stat. § 14:283 yes telephone companies may intercept lewd calls all

Maine Me. Rev. Stat. Ann. tit. 15
§709 yes - Me. Rev. Stat. Ann. tit. 17-A, §511. 1

Maryland Md. Code Ann., Courts and Judicial Proceedings §10-402 yes - § 10-410. State courts interpreted laws to protect communications only when parties have a reasonable expectation of privacy all

Massachusetts Mass. Ann. Laws ch. 272 , §99 all

Michigan Mich. Comp. Laws §750.539c yes - 750.539d all

Minnesota Minn. Stat. §626A.02 yes - 626A.02 1

Mississippi Miss. Code Ann.§41-29-501 to -537 yes - Miss. Code Ann. § 97-29-63 "other communications" 1

Missouri Mo. Rev. Stat. §542.402 yes - Mo. Rev. Stat. § 565.253. 1

Montana Mont. Code Ann. §45-8-213 yes - "electronic mail" exceptions for hostage situations all

Nebraska Neb. Rev. Stat. §86-701 yes yes 1

Nevada Nev. Rev. Stat. Ann. §200.620 yes - "wireless methods" all by court descision

New Hampshire N. H. Rev. Stat. Ann. §570-A:2 yes - NH Rev Stat §644:9 all

New Jersey N.J. Stat. §2A:156A-3 yes 1

New Mexico N.M. Stat. Ann. §30-12-1 1

New York N.Y. Penal Law §250.00, 250.05 yes - Gen. Bus. Law 395-b yes 1

North Carolina N.C. Gen. Stat. §15A-287; §14-155. yes - § 15A-287 1

North Dakota N.D. Cent. Code §12.1-15-02 1

Ohio Ohio Rev. Code Ann. §2933.52 yes 1

Okalahoma Okla. Stat. tit.
§13-176.2 yes 1

Oregon Or. Rev. Stat. §165.540, 165.543;
§133.005 yes - Ore. Rev. Stat. § 163.700. 1

Pennsylvania 18 Pa. Cons. Stat. §5703 yes perhaps toughest law in the states; forbids even police officers from tapping all

Rhode Island R.I. Gen. Laws §11-35-21;
§12-5.1 yes 1

South Carolina S.C. Code Ann. §16-17-470 yes - under "peeping tom" provision does not explicitly address interception of wire or electronic communication; does including record; misdemeanor to eavesdrop ("peeping Tom") law all

South Dakota S.D. Codified Laws § 23A-35A-20 yes - S.D. Codified Laws § 22-21-1 1

Tennessee Tenn. Code Ann. § 39-13-601 yes - § 39-13-605 yes - § 39-13-604. yes 1

Texas Texas Penal Code § 16.02, 18.20 yes 1

Utah Utah Code Ann. § 77-23a-4 yes - § 76-9-402. yes 1

Vermont no law specifically addressing interception of communications but state's highest court held electronic monitoring of communications in a person's home is unlawful invasion of privacy

Virginia Va. Code Ann. § 19.2-62 yes 1

Washington Wash. Rev. Code § 9.73.030 all

West Virginia W. Va. Code § 62-1D-3 yes 1

Wisconsin Wis. Stat. § 968.31 yes 1

Wyoming Wyo. Stat. § 7-3-701 yes yes 1

TOTALS 21 14 31 33=1 party
16=all party

Federal Laws

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Federal law includes all interstate calls, and there are several sources of authority for electronic surveillance in the U.S.. The Wire and Electronic Communications Interception and Interception of Oral Communications Act (formally known as the "Title III" Wiretap Act, 18 U.S.C §§ 2510-2520,), typically requires a court order issued by a judge who must decide that there is probable cause to believe that a crime has been, is being or is about to be committed. Wiretaps can also be ordered in suspected cases of terrorist bombings, hijackings and other violent activities are crimes. The government can wiretap in advance of a crime being perpetrated. Judges seldom deny government requests for wiretap orders.

Wiretapping of aliens and citizens in the U.S. is allowed under the 1978 Foreign Intelligence Surveillance Act ("FISA", 50 U.S.C 1801 et seq). For U.S. citizens and permanent resident aliens, there must also be probable cause to believe that the person is engaged in activities that "may" involve a criminal violation. Suspicion of illegal activity is not required in the case of aliens who are not permanent residents. No legislative limits on U.S. government electronic eavesdropping carried out overseas.

The Electronic Communications Privacy Act of 1986 ("ECPA", 18 U.S.C 2701), sets standards for access to cellphones, email and other electronic communications and to transactional records (subscriber identifying information, logs, toll records). The pen registers and trap and trace device statute, enacted as part of ECPA. (18 U.S.C 3121 et seq), governs real-time interception of "the numbers dialed or otherwise transmitted on the telephone line to which such device is attached."

In 1994, Congress adopted the digital telephony law, or Communications Assistance for Law Enforcement Act ("CALEA", Public Law 103–414, 47 U.S.C. 1001–1010).. CALEA was intended to preserve law enforcement wiretapping capabilities by requiring telephone companies to design their systems to ensure a basic level of government access.

In the wake of the September 11th terrorist attacks, Congress passed legislation significantly broadening the scope of federal electronic surveillance laws. H. R. 3162 (the USA PATRIOT Act), signed by President Bush on October 26, adds terrorism offenses, computer fraud, and abuse offenses to the list of predicates for obtaining Title III wiretaps. H.R. 3162 also permits roving wiretaps under the Foreign Intelligence Surveillance Act of 1978 (FISA) in the same manner as they are permitted under Title III wiretaps. Pursuant to H.R. 3162 intelligence information obtained from wiretaps may be shared with law enforcement, intelligence, immigration, or national security personnel. Recipients can use the information only in the conduct of their duties and are subject to the limitations in current law of unauthorized disclosure of wiretap information.

H.R. 3162 also expands the use of traditional pen register or trap and trace devices (captures the telephone numbers of incoming callers) so that they apply not just to telephones, but also to Internet communications so long as they exclude "content." These devices may now also be used under FISA without having to show that the telephone covered was used in communications with someone involved in terrorism or intelligence activities that may violate U.S. criminal laws. Multi-jurisdictional warrants may be obtained for wiretapping purposes, making it easier to track criminals across borders.

NCSL Contacts

For more information, contact:

State Information

Bob Boerner, bob.boerner@ncsl.org
Janna Goodwin, janna.goodwin@ncsl.org
303-364-7700

Federal Information

Susan Frederick, susan.frederick@ncsl.org
202-624-5400

Last update: 12/06/05

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