Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

District of Columbia

Current status

The District of Columbia is a “one-party consent state” in regard to recording or intercepting communications. In the District of Columbia any person can record or disclose any communication to which he is a party or has received prior consent from at least one party engaged in the communication. Notification of all parties is not necessary. Also, the state’s voyeurism law forbids any person to observe or record another person without explicit consent, when the person has reasonable expectations of privacy. However, the law strictly refers to 3 circumstances: using a bathroom or restroom, undressing or changing clothes or engaging in sexual activity.

Impact of law

The law states in general terms that any person who willfully intercepts, discloses or uses the content of any wire or oral communication, shall be fined or imprisoned, or both. The law then makes a specific exception for persons who are a party to the communication, or who have received prior consent from one of the parties to the communication[1]. No specification is made with regard to the form of the consent. An expectation of privacy is used to determine the context in which recording of oral communications is unlawful. We can thus assume that recording in private places, when there is no expectation of privacy, is permitted.

The law does not mention electronic communication, in which case federal provisions should regulate this occurrence.

References to Physical TSCM

In the D.C. law, “intercepting device” is defined as “any electronic, mechanical, or other device or apparatus which can be used to intercept a wire or oral communication” other than communication equipment used in the ordinary course of communication or hearing aid devices.

References to Cyber TSCM

The D.C. law only references “wire or oral communication”. Electronic communication is not specifically addressed, thus cyber means of illegally monitoring electronic communication is a gray zone in the current interception law.

Criminal implications

As per the citations below, recording any communications made without consent can be punished by a fine of up to $12,500[2] or imprisonment for up to five years, or both[3].

Voyeurism crimes are considered misdemeanors and are punishable by up to a year in prison plus fines of up to $1,000, while distribution of illegally obtained content is considered felony punishable by up to five years imprisonment and fines up to $5,000[4].

Civil implications

Any person who is a victim to illegal interception shall have a civil cause of action against any person who intercepted, disclosed or used such obtained information and is entitled to recover damages in the amount of $100 a day for each day of violation, or $1,000, whichever is higher, plus punitive damages and litigation costs[5].

Code excerpts

D.C. Code 23-541[6] – Definitions.

As used in this subchapter –

(1) the term “wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection […]

(2) the term “oral communication” means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation;

(3) the term “intercept” means the aural acquisition of the contents of any wire or oral communication through the use of any intercepting device;

(4) the term “intercepting device” means any electronic, mechanical, or other device or apparatus which can be used to intercept a wire or oral communication[…]

D.C. Code 23–542[7]. Interception, disclosure, and use of wire or oral communications prohibited.

(a) Except as otherwise specifically provided in this subchapter, any person who in the District of Columbia –

(1) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication;

(2) willfully discloses or endeavors to disclose to any other person the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication; or

(3) willfully uses or endeavors to use the contents of any wire or oral communication, or evidence derived therefrom[…]

shall be fined not more than the amount set forth in s. 22-3571.01[8] or imprisoned not more than five years, or both;

(b) It shall not be unlawful under this section for –

(3) a person not acting under color of law to intercept a wire or oral communication, where such person is a party to the communication, or where one of the parties to the communication has given prior consent to such interception, unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States, any State, or the District of Columbia, or for the purpose of committing any other injurious act.

D.C. Code 23–554[9]. Authorization for recovery of civil damages.

(a) Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this subchapter shall –

(1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use, such communications; and

(2) be entitled to recover from any such person –

(A) actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation, or $1,000, whichever is higher;

(B) punitive damages; and

(C) a reasonable attorney’s fee and other litigation costs reasonably incurred.

D.C. Code 22–3531[10]. Voyeurism.

(a) For the purposes of this section, the term:

(1) “Electronic device” means any electronic, mechanical, or digital equipment that captures visual or aural images, including cameras, computers, tape recorders, video recorders, and cellular telephones.

(b) Except as provided in subsection (e) of this section, it is unlawful for any person to occupy a hidden observation post or to install or maintain a peephole, mirror, or any electronic device for the purpose of secretly or surreptitiously observing an individual who is:

(1) Using a bathroom or rest room;

(2) Totally or partially undressed or changing clothes; or

(3) Engaging in sexual activity.

(2) Express and informed consent is only required when the individual engaged in these activities has a reasonable expectation of privacy.

(e) This section does not prohibit the following:

(2) Security monitoring in one’s own home;

(3) Security monitoring in any building where there are signs prominently displayed informing persons that the entire premises or designated portions of the premises are under surveillance; or

(f) (1) A person who violates subsection (b), (c), or (d) of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than the amount set forth in or imprisoned for not more than 1 year, or both.

(2) A person who distributes or disseminates, […] images or sounds or series of sounds that the person knows or has reason to know were taken in violation of subsection (b), (c), or (d) of this section is guilty of a felony and, upon conviction, shall be fined not more than the amount set forth in section 22-3571.01 or imprisoned for not more than 5 years, or both.

 

 

[1] Source: http://dccode.org/simple/sections/23-542.html

[2] Source: http://dccode.org/simple/sections/22-3571.01.html

[3] Source: http://dccode.org/simple/sections/23-542.html

[4] Source: http://dccode.org/simple/sections/22-3571.01.html

[5] Source: http://dccode.org/simple/sections/23-554.html

[6] Source: http://dccode.org/simple/sections/23-541.html

[7] Source: http://dccode.org/simple/sections/23-542.html

[8] Source: http://dccode.org/simple/sections/22-3571.01.html

[9] Source: http://dccode.org/simple/sections/23-554.html

[10] Source: http://dccode.org/simple/Title-22/Chapter-35A/