Court applies exception provision of federal Wiretap Act

In a recent wiretapping case, the court made a brought up an important Wiretap Act provision that should be clarified. The plaintiff learned that his conversation with a J.P. Morgan Chase Bank employee had been recorded by the company. The court holds that under the federal Wiretap Act, the plaintiff cannot state a claim. "The statute prohibits an interception that is '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). Courts have interpreted this provision to require that the 'interceptor intend to commit a crime or tort independent of the act of recording itself.' Caro v. Weintraub, 618 F.3d 94 (2d Cir. 2010).

While the court is correct in its analysis, it is important to mention that Caro and the Wiretap Act both state this requirement only "where [the wiretapper] is a party to the communication or where one of the parties to the communication has given prior consent to such interception." 18 U.S.C. § 2511(2)(d). Thus, if a party to the conversation records it for the purpose of committing a crime or tort, they have also violated the federal Wiretap Act.

The case is Berk v. J.P. Morgan Chase Bank, N.A., 2011 U.S. Dist. LEXIS 143510 (E.D. Pa. 2011).