Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:
Kansas has a unified statute that addresses breach of privacy through interception of communication, personal surveillance, opportunistic eavesdropping, and trespassing on private property. In order to be considered lawful, for any of the above actions, the consent of at least one party to a communication or the consent of the subject(s) is required.
Impact of law
The state’s breach of privacy law makes it a misdemeanor to secretly use any device to listen to, record or amplify a private conversation in a private place without the consent of at least one party. However, if the person recording is a party to the respective conversation, then the recording is legal even without notifying the other parties. The law applies to “private conversations” and intrusion upon “private places”, defined as places where one may reasonably expect to be safe from uninvited intrusion or surveillance. The concept of privacy is in fact used to define all the circumstances of privacy breach as addressed by law.
References to Physical TSCM
The state law specifically references physical eavesdropping devices: “any device or equipment for the interception of any telephone, telegraph or other wire or wireless communication”, as well as “any device for hearing, recording, amplifying or broadcasting” and “concealed camcorder, motion picture camera or photographic camera of any type”. We assert that it is the lawmaker’s intention to address all possible tools that could be employed in illegal interception and surveillance actions.
References to Cyber TSCM
In regard to cyber tools for breach of privacy, the law does not specifically mention the cyber realm as a subject of the law, other than through the use of “wireless communication”.
Recording, intercepting or disclosing the contents of any private communications without the consent of at least one party is a misdemeanor punishable by up to a year in jail and a fine. Breach of privacy by secretly recording other persons, their images and actions, in violation of the state’s laws are considered felonies. For a level 5 felony, the fine can be up to $300,000, while for a level 8 felony, the maximum fine is $100,000.
A person whose wire, oral, or electronic communication is unlawfully intercepted, disclosed, or used shall have a civil cause of action against against the perpetrator and be entitled to recover actual damages (computed at the rate of $100 per day for each day of intrusion, or a minimum amount of $1,000), punitive damages, attorney’s fee and other litigation costs.
Kan. Stat. Ann. 21-6101. Breach of privacy.
(a) Breach of privacy is knowingly and without lawful authority:
(1) Intercepting, without the consent of the sender or receiver, a message by telephone, telegraph, letter or other means of private communication;
(2) divulging, without the consent of the sender or receiver, the existence or contents of such message if such person knows that the message was illegally intercepted, or if such person illegally learned of the message in the course of employment with an agency in transmitting it;
(3) entering with intent to listen surreptitiously to private conversations in a private place or to observe the personal conduct of any other person or persons entitled to privacy therein;
(4) installing or using outside or inside a private place any device for hearing, recording, amplifying or broadcasting sounds originating in such place, which sounds would not ordinarily be audible or comprehensible without the use of such device, without the consent of the person or persons entitled to privacy therein;
(5) installing or using any device or equipment for the interception of any telephone, telegraph or other wire or wireless communication without the consent of the person in possession or control of the facilities for such communication;
(6) installing or using a concealed camcorder, motion picture camera or photographic camera of any type, to secretly videotape, film, photograph or record by electronic or other means, another, identifiable person under or through the clothing being worn by that other person or another, identifiable person who is nude or in a state of undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy; or
(7) disseminating or permitting the dissemination of any videotape, photograph, film or image obtained in violation of subsection (a)(6).
(b) Breach of privacy as defined in:
(1) Subsection (a)(1) through (a)(5) is a class A nonperson misdemeanor;
(2) subsection (a)(6) is a severity level 8, person felony; and
(3) subsection (a)(7) is a severity level 5, person felony.
As used in this section, “private place” means a place where one may reasonably expect to be safe from uninvited intrusion or surveillance.
Kan. Stat. Ann. 22-2518. Same; civil action for damages; defense available in civil and criminal actions.
(1) Any person whose wire, oral or electronic communication is intercepted, disclosed or used in violation of this act shall have a civil cause of action […] and 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 greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other litigation costs reasonably incurred.