Wiretap Act Violations Require Criminal Intent

(CN) - A son who used his iPhone to record a kitchen-table conversation about his dying mother's will did not violate the federal Wiretap Act, the 2nd Circuit ruled, because he had no criminal intent.

The federal appeals court in Manhattan joined its sister circuits in finding that the Act's "exception to the one-party consent provision requires that a communication be intercepted for the purpose of a tortious or criminal act that is independent of the intentional act of recording."

Just days before she died of lung cancer in 2008, Elizabeth Caro and her husband, Marshall, got into a "heated" conversation with family members about her will.

Without telling anyone, Elizabeth's son, David Weintraub, used his iPhone to capture the conversation and, after Elizabeth died without a will, used the recording to challenge Marshall Caro's claim on her estate.

Caro sued in federal court in Connecticut, claiming the recording violated the federal Wiretap Act. He argued that the conversation was private, and that Weintraub was not involved.

A federal judge dismissed Caro's claim, agreeing with Weintraub that he was a party to the conversation and that it was not private.

Caro appealed, but the three-judge panel upheld the lower court's ruling.

Circuit Judge Richard Wesley found that most other federal appeals courts have determined that, to violate the Act, a defendant must display criminal intent.

"Merely intending to record the plaintiff is not enough," Wesley wrote. "If, at the moment he hits 'record,' the offender does not intend to use the recording for criminal or tortious purposes, there is no violation. But if, at the time of the recording, the offender plans to use the recording to harm the other party to the conversation, a civil cause of action exists under the Wiretap Act."

In this case, Caro failed to show that Weintraub had criminal ambitions beyond state-level invasion of privacy, and Judge Wesley said that is not enough to trigger the Act.

"The language and history of the Wiretap Act indicate that Congress authored the exception to the one-party consent rule to prevent abuses stemming from use of the recording not the mere act of recording," Wesley wrote. "Connecticut's tort of invasion of privacy by intrusion upon the seclusion of another occurs through the simple act of the recording itself and therefore cannot satisfy the Wiretap Act's requirement of a separate and independent tortious intent."

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