Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:
Idaho Code, based on federal provisions regarding the interception of communications, criminalizes the interception or recording of other persons without their consent. In the case of private communication, the law forbids the interception of wire, oral or electronic communications, unless he or she is a party to the communication or has received prior consent from one of the parties. In the case of video surveillance, the law forbids recording other persons, in a place where there is reasonable expectation of privacy, but with strong emphasis on sexual motivation and private body exposure. The law also addresses pen registers, track and trace devices as well as opening another person’s mail.
Impact of law
In Idaho, it is legal for a person to record an oral conversation or communication in which he or she is a party without notifying the other parties. The same applies to wire and electronic communications, defined as “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature”, meaning that one can also legally record his own communication by email, text messages, chat content and other online interactions.
References to Physical TSCM
Idaho law prohibits the illegal “interception of any wire, electronic, or oral communication”. Further definitions of terms lead to a very broad perspective on the law.
First, the law defines the term “intercept” as the acquisition of the contents of communication “through the use of any electronic, mechanical, or other device”.
The phrase “electronic, mechanical, or other device” is then defined as “any device or apparatus which can be used to intercept” a wire, electronic, or oral communication.
We can thus assert that the law addresses illegal interception through the use of any device which can be used to intercept any wire, electronic, or oral communication. This is an all-inclusive perspective, that can literally address any means of wiretapping and available devices.
However, paragraph (b) of Idaho Code Ann. 18-6702 specifically addresses interception through devices but only in regard to oral communication, and only in the case of a device that further transmits information. We believe that the more broad perspective should prevail.
References to Cyber TSCM
As stated earlier, In the case of intercepting electronic communication, the law mentions the use of any electronic, mechanical, or other device as means for illegal acquisition of electronic communication content. From further definitions, we assert that such devices are considered to be “any device or apparatus which can be used to intercept” “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature” and that this description covers all cyber-surveillance tools.
Violations of the interception law are considered felonies and are punishable by up to five years of imprisonment or by a fine not to exceed $5,000 or by both fine and imprisonment.
Violation of the state’s video voyeurism laws are punishable by of up to five years imprisonment or by fine not exceeding $50,000, or by both such fine and imprisonment.
Anyone whose communications have been illegally intercepted is entitled to recover damages, along with attorney fees and litigation costs. Actual damages are computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher.
Idaho Code Ann. 18-6702. Interception and disclosure of wire, electronic or oral communications prohibited.
(1) Except as otherwise specifically provided in this chapter, any person shall be guilty of a felony and is punishable by imprisonment in the state prison for a term not to exceed five (5) years or by a fine not to exceed five thousand ($5,000), or by both fine and imprisonment if that person:
(b) Willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
- Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication;
- The device transmits communications by radio, or interferes with the transmission of radio communications.
(a)Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication; or
(b)Willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
- Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
- Such device transmits communications by radio or interferes with the transmission of such communication; or
(c) Willfully discloses, or endeavors to disclose, to any other person the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication in violation of this subsection; or
(d) Willfully uses, or endeavors to use, the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication in violation of this subsection; or
(d)It is lawful under this chapter for a person to intercept a wire, electronic or oral communication when one (1) of the parties to the communication has given prior consent to such interception.
Idaho Code Ann. 18-6701.DEFINITIONS. Definitions as used in this chapter:
(2) “Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation but such term does not include any electronic communication.
(3) “Intercept” means the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device.
(4) “Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, electronic or oral communication other than (devices used for the actual act of communication and hearing aid devices)
(7) “Contents” when used with respect to any wire, electronic or oral communication includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
(10) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system […]
(12) “Electronic communications system” means any wire, radio, electromagnetic, photoelectronic or photo-optical facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications.
Idaho Code Ann. 18-6709. RECOVERY OF CIVIL DAMAGES AUTHORIZED.
Any person whose wire, electronic or oral communication is intercepted, disclosed, or used in violation of this chapter shall have a civil cause of action against any person who intercepts […] and shall be entitled to recover from any such person:
(a)Actual damages, but not less than liquidated damages computed at the rate of one hundred dollars ($100) a day for each day of violation or one thousand dollars ($1,000), whichever is higher;
(b)Punitive damages; and
(c)A reasonable attorney’s fee and other litigation costs reasonably incurred.
Idaho Code Ann. 18-6718. OPENING SEALED MAIL OR PACKAGES.
(1) Every person who willfully opens or breaks the seal, or reads, or causes to be read, any sealed mail not addressed to such person without being authorized to do so either by the writer or by the person to whom it is addressed […]
Idaho Code Ann. 18-6720.
(1) Except as provided in section 18-6720 [this section], Idaho Code, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 18-6722, Idaho Code.
Idaho Code Ann. 18-6609. CRIME OF VIDEO VOYEURISM.
(1) As used in this section:
(f) “Place where a person has a reasonable expectation of privacy” means:
(I) A place where a reasonable person would believe that he could undress, be undressed or engage in sexual activity in privacy, without concern that he is being viewed, photographed, filmed or otherwise recorded by an imaging device; or
(ii) A place where a person might reasonably expect to be safe from casual or hostile surveillance by an imaging device; or
(iii) Any public place where a person, by taking reasonable steps to conceal intimate areas, should be free from the viewing, recording, storing or transmitting of images obtained by imaging devices designed to overcome the barriers created by a person’s covering of intimate areas.
(2) A person is guilty of video voyeurism when:
(a) With the intent of arousing, appealing to or gratifying the lust […], or for the purpose of sexually degrading or abusing any other person, he uses, installs or permits the use or installation of an imaging device at a place where a person would have a reasonable expectation of privacy, without the knowledge or consent of the person using such place; or
(b) He either intentionally or with reckless disregard disseminates, publishes or sells […] images of the intimate areas of another person or persons without the consent […]
(3) A violation of this section is a felony.