February 2, 2000		2000-R-0119
CELL PHONES AND THE RIGHT TO PRIVACY
By: Kevin E. McCarthy, Principal Analyst

You asked for summary of Connecticut law on the right to privacy when using cellular or other portable telephones, including relevant case law.

SUMMARY

It appears that one's expectation of privacy when using cellular phones is the same as when using wired telephones. Connecticut law (1) generally bars eavesdropping on calls made with cellular telephones, (2) allows law enforcement officials to wiretap such calls only with a court order, and (3) generally requires that all parties to such calls be made aware when they are being recorded.

It appears that the wiretapping and recording provisions apply to calls made using other types of portable phones but that the eavesdropping provision does not. In particular, it appears that the eavesdropping provision does not apply to calls made using personal communications services (PCS) and related technologies. PCS is superseding cellular but the handsets the two technologies use cannot be readily distinguished.

We were unable to find any Connecticut cases dealing specifically with the expectation of privacy when making a call using cellular, PCS, or related technologies. A 1993 Supreme Court decision held that the state's wiretapping laws do apply to calls using an older portable technology.

CELLULAR CALLS

Eavesdropping (CGS § 53a-187)

The state's eavesdropping law explicitly covers calls made by cellular phones. Under CGS § 53a-187, it is a class D felony to unlawfully and intentionally overhear or record a communications made by "cellular radio telephone" without the consent of either the sender or the receiver. "Unlawfully" means not specifically authorized by law. A "cellular radio telephone" is a wireless telephone authorized by the Federal Communications Commission to operate in the bandwidth reserved for such telephones. The monitoring can be accomplished by means of any instrument, device, or equipment. The legislature added the cellular telephone provisions in 1989 (PA 89-103).

The eavesdropping provision does not apply to wiretapping by law enforcement officials in the lawful performance of their duties (cf. CGS § 54-41a et seq.). A law enforcement official's taping his own conversation for the purpose of introducing it as evidence in a criminal proceeding is not prohibited (State v. DeMartin (1976) 171 Conn. 524). The provisions do not affect the admissibility of evidence in any proceedings, other than for eavesdropping or tampering with private communications. However, this section does not make illegally obtained tapes of intercepted conservations admissible in all cases other than eavesdropping and tampering prosecutions (Rivera v. Rivera 15 Conn. App. 529, 1988).

This provision also does not apply to the normal operations of a telephone or telegraph corporation or the normal use of its facilities pursuant to its tariffs. It is not clear whether this has any effect with regard to cellular or other wireless communications since the companies that provide these services generally are not telephone or telegraph corporations and the services are not provided pursuant to tariff.

The Supreme Court held that this section is only violated when neither party to a call knows that a call is being monitored (Washington v. Meachum 240 Conn. 766,1996). Department of Correction regulations that permitted monitoring and recording of nonprivileged inmate conversations did not violate the law because they required both parties to be notified of the monitoring before the call began. On the other hand, the Court of Appeals held that police officers knew or ought to have known that they were violating the rights of arrestees when they monitored all calls out of and into police barracks, including calls between the arrestees and their counsel (In re. State Police Litigation, 88 F.3d 111 C.A.2 (Conn.) 1996).

Wiretapping by Law Enforcement Officials (CGS § 54-41a et seq.)

It appears that the laws governing wiretaps by law enforcement officials apply to calls made by cellular and other types of portable phones. However the applicability of the laws to such calls may change as telecommunications technologies evolve.

The wiretapping law specifies the circumstances under which the Chief State's Attorney or state's attorney can apply to the courts for an order authorizing interception of a wire communications by a state police or other specified investigative officer. It also specifies the conditions that must be met to obtain the order.

A wire communication is one that is made in whole or in part using telephone facilities (CGS § 54-41a). An aggrieved person may move to suppress the contents of the intercepted communications or evidence derived from it if: (1) the communications was illegally intercepted, (1) the wiretap order was insufficient on its face, or (3) the interception was not made in conformity with the order (CGS § 54-41m). The law specifies when the contents of a communications subject to such an order can be disclosed and makes unauthorized disclosure a class D felony (CGS § 54-41p). It is a class C felony for an investigative officer to intercept wire communications in violation of these provisions (CGS § 54-41t).

Anyone whose wire communications is intercepted, disclosed, or used in violation of the wiretapping or eavesdropping laws can sue the violator (CGS § 54-41r). The aggrieved party can recover the greater of actual damages, $100 per day of the violation, or $1,000. He is also entitled to punitive damages, a reasonable attorney's fee, and other costs. But, a good faith reliance on a court order is a complete defense to any civil or criminal action.

In State v. McVeigh 224 Conn. 593 (1993) the Supreme Court held that the wiretap law applies to the "radio wave portion of a cordless telephone conversation" as well as the part of the transmission that uses land lines. In this case, the Cromwell police had monitored incoming and outgoing cordless telephone calls of a couple suspected of dealing drugs. The monitoring, which used a scanner and a tape recorder, was done without a wiretap order. Based on information gathered by the surveillance, the police obtained a warrant to search the couple's van and condominium, with both searches resulting in drug seizures. At trial, the couple moved to suppress the evidence from the searches, arguing that the surveillance violated CGS § 54-41a and the various constitutional provisions. The trial court ruled that the interception of the couple's conversations over their cordless telephone did not violate the statute since the conversations did not constitute wire communications. The court also rejected the constitutional arguments.

On appeal, the Supreme Court found that the language of the statute was somewhat ambiguous as to its applicability to cordless communications. But it agreed with the defendants that the focus of the statute was on communications that travel "in whole or in part" over telephone lines. It also found that the law's legislative history and subsequent judicial gloss strongly favored interpreting the statute so as to carefully limit invasions of privacy. The court noted that interpreting the statute narrowly would limit the rights of innocent third parties who use traditional telephones while conversing with parties using cordless telephones. Finally, the court found that accepting the state's position would allow wiretaps to be installed only on facilities owned by the telephone company, which was inconsistent with other provisions of the law.

The court also rejected the state's position that subsequent legislative actions had indicated that the legislature intended that CGS § 54-41a not apply to wireless communications. Specifically, the state pointed to the fact that the legislature had (1) amended CGS § 53a-187 to include cellular telecommunications, but had not amended CGS § 54-41a and (2) rejected legislation in 1991 to explicitly include cellular and cordless conversations in CGS § 54-41a. The court noted that the sections deal with separate crimes and that 18 years had passed from the adoption of CGS § 54-41a and the amendment of CGS § 53a-187.

Although McVeigh dealt with calls made by cordless phones, it appears to apply to cellular calls as well. Like calls made using cordless phones, those made using cellular phones travel in part over land lines. As a result, they appear to be encompassed in the term "wire communications" and thus subject to the law. But, if cellular technology evolves so as to eliminate the reliance on land lines, it appears that CGS § 54-41a et seq. would no longer apply to cellular calls. In this scenario, the statutes would appear not to authorize wiretaps of such calls and such police monitoring would appear to violate CGS § 53a-187.

Recording Conversations (CGS § 52-570d)

As discussed in OLR memo 99-R-0987, CGS § 52-570d generally bars the recording of "an oral private telephonic conversation" without the knowledge of all of the parties. This knowledge can be provided by an oral or written notice or by an automatic signal that occurs approximately every 15 seconds during the conversation. Among the exceptions to this provision are lawful activities of law enforcement officials and recordings of emergency calls. The law also permits individuals to record telephone communications without notice if they occur repeatedly or at an extremely inconvenient hour. The aggrieved party can sue for damages, costs, and a reasonable attorney's fee.

As discussed in OLR memo 99-R-0987, federal law in this area is less stringent. Recordings that violate Connecticut law are generally admissible in federal court if they meet the requirements of the federal law.

The statute does not specifically address calls made using cellular telephones. So long as the conversation was private, it appears that the statute would cover such calls. However, many calls from cellular phones are made from public locations and it is unclear what the caller's expectation of privacy would be under such circumstances.

CALLS MADE USING PCS AND RELATED TECHNOLOGIES

Since the laws governing wiretapping and recording conversations do not refer to specific technologies, they appear to apply to calls made using PCS and related technologies in the same way as they apply to conversations using wired telephones.

On the other hand, it appears that conversations using PCS and related technologies are not covered by the eavesdropping statute. Before 1989, CGS § 53a-189 barred individuals from unlawfully engaging in wiretapping or mechanically overhearing conversations, but did not refer to specific technologies. PA 89-103 specified that the wiretapping provisions covered communications by cellular telephones. The implication of this action is that the legislature did not believe that the prior law covered such wireless communications. Since the act defined cellular telephones in a way that does not include PCS and related technologies, it appears that the eavesdropping statute does not cover them. (The act defined cellular phones in terms of the frequency bandwidth they use; PCS and the other technologies use a different bandwidth.) Although PCS and the other technologies were not on the market when the act was adopted, the legislature's failure to subsequently amend the section to include the newer technologies could be construed to exclude them. We did not find any cases that address this issue specifically. But, in DeMartin the Supreme Court held that criminal statutes (including the eavesdropping law) must be strictly construed.

DISCUSSION

The law does not explicitly define an individual's privacy expectation with regard to calls made using cellular and other portable phones, although several cases provide some guidance. Independent of the technology used to make the call, any individual's expectation of privacy is limited by the fact that the eavesdropping and wiretapping laws permit monitoring of a conversation with the consent of one of the parties. In addition, with limited exceptions, any conversation can be monitored pursuant to a court-authorized wiretap.

In practice, the ability to monitor calls using PCS and related technologies is limited because they use a digital rather than analog format. Cellular systems are also being converted to the digital format. The digital format permits use of a technique called packet switching, which makes monitoring impossible without the use of specialized equipment. However, the federal Communications Assistance for Law Enforcement Act in 1994 requires phone carriers to add software and hardware to advanced telecommunications equipment to facilitate electronic surveillance. There has been extensive debate between the telecommunications industries and privacy advocates, on one hand, and law enforcement agencies on the other as to how this law should be implemented. The Federal Communications Commission's order implementing the act is summarized at http://www.cdt.org/digi_tele/fccpress0899.shtml. The order is currently under appeal before the U.S. Court of Appeals for the District of Columbia.

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