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

New York

Current status

New York has both an eavesdropping and an unlawful surveillance statute, which regulate spying on another person’s communications and actions. While the eavesdropping statute specifically addresses wired, oral and electronic communications, the unlawful surveillance statute only covers voyeurism cases, focused on recording other persons while dressing, undressing or exposing private areas in places where they expect to be safe from such surveillance.

Impact of law

The New York law covers telephonic or telegraphic communications, conversation or discussions and electronic communications, and bars interceptions of such communications without consent from at least one of the parties, either sender, receiver or participant on oral discussions. The law definition of electronic communications includes 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, thus we conclude that the law specifically addresses wireless communications and the entire digital media.

References to Physical TSCM

Each clause in the eavesdropping statute references the use of “any instrument, device or equipment”, with no further definition. We assert that is the lawmaker’s intention to keep the concept of eavesdropping devices as open as possible, thus covering currently available devices and tools. Further, the unlawful surveillance statute defines “imaging device” as “any mechanical, digital or electronic viewing device, camera, cellular phone or any other instrument capable of recording, storing or transmitting visual images that can be utilized to observe a person”, thus adding visual surveillance devices to the list.

References to Cyber TSCM

As we previously concluded that the law also addresses the digital media, the clause of “any instrument, device or equipment” used to intercept or access such communications suggests that cyber means of eavesdropping are also subject of the law.

Criminal implications

Eavesdropping is a class E felony. Unlawful surveillance in the second degree is a class E felony. A second conviction of unlawful surveillance in the second degree is considered unlawful surveillance in the first degree and is a class D felony. Dissemination of an unlawful surveillance image in the second degree is a class A misdemeanor.

Civil implications

Code excerpts

N.Y. PEN. LAW 250.00[1] :Eavesdropping; definitions of terms

The following definitions are applicable to this article:

  1. “Wiretapping” means the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment.
  2. Mechanical overhearing of a conversation” means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.
  3. 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 […]
  4. Intercepting or accessing of an electronic communication” and “intentionally intercepted or accessed” mean the intentional acquiring, receiving, collecting, overhearing, or recording of an electronic communication, without the consent of the sender or intended receiver thereof, by means of any instrument, device or equipment, […]

N.Y. PEN. LAW § 250.05[2] : Eavesdropping

A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication. Eavesdropping is a class E felony.

N.Y. PEN. LAW 250.40[3] : Unlawful surveillance; definitions

The following definitions shall apply to this article:

  1. Imaging device” means any mechanical, digital or electronic viewing device, camera, cellular phone or any other instrument capable of recording, storing or transmitting visual images that can be utilized to observe a person.

N.Y. PEN. LAW 250.45[4] – Unlawful surveillance in the second degree

A person is guilty of unlawful surveillance in the second degree when:

  1. For his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or
  2. (a) For no legitimate purpose, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent.
  3. Without the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person.

Unlawful surveillance in the second degree is a class E felony.

N.Y. PEN. LAW 250.50[5] : Unlawful surveillance in the first degree

A person is guilty of unlawful surveillance in the first degree when he or she commits the crime of unlawful surveillance in the second degree and has been previously convicted within the past ten years of unlawful surveillance in the first or second degree. Unlawful surveillance in the first degree is a class D felony.

N.Y. PEN. LAW 250.55[6]: Dissemination of an unlawful surveillance image in the second degree

A person is guilty of dissemination of an unlawful surveillance image in the second degree when he or she, with knowledge of the unlawful conduct by which an image or images […] were obtained […] intentionally disseminates such image or images. Dissemination of an unlawful surveillance image in the second degree is a class A misdemeanor.

 

 

[1] Source: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/250/250.00

[2] Source: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/250/250.05

[3] Source: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/250/250.40

[4] Source: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/250/250.45

[5] Source: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/250/250.50

[6] Source: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/250/250.55