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

North Carolina

Current status

North Carolina has an interception of communication statute based in the Federal Wiretapping Act, adopting the same provisions and definitions. North Carolina is thus an “one party consent state” in the matter of intercepting, using and disclosing private communications, either oral, wired or electronic.

North Carolina also has an unlawful surveillance statute, which prohibits direct observation of another person, and also recording images of other persons, in a sexual/exposed context.

Both statutes entitle victims of illegal intrusions to civil cause of actions.

Impact of law

In North Carolina, it is legal for a person to record an oral conversation or communication in which he or she is a party without the consent or even without notifying the other parties. The same is valid 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 lawfully record any email, text messages, chat content and other online interactions.

The video unlawful surveillance law holds as class 1 felony the use of any device to secretly record images of other persons for the purpose of arousing or gratifying sexual desire or for the purpose of viewing the body or the undergarments worn by other persons, without their consent. The first clause, however, addresses direct observation of another person in a place occupied by that person, without setting a sexual or nudity context. Violation is a class 1 misdemeanor.

References to Physical TSCM

North Carolina law, based on the federal provisions, 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”. Second, “electronic, mechanical, or other device” is 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 (2) of N.C. Gen. Stat. Ann. 15A-287 specifically addresses interception through devices but only with regard to oral communication, and only in the case of a device that further transmits information. It is our opinion that the broader perspective encompases the more specific one and 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”. This description can be interpreted to cover all available cyber surveillance tools.

Criminal implications

Violations of the communication interception statute are class H felonies. Surreptitious creating an image of another person without that person’s consent, when the person is exposed and in a place where he or she would reasonably expect to be safe from intrusive surveillance is a class I felony. Direct observation of a person in the above conditions is a misdemeanor.

Civil implications

Anyone whose wire, oral or electronic communication has been intercepted, used or disclosed in violation of the state law is entitled to recover damages from the perpetrator through a civil suit.

Actual damages are computed as $100 a day for each day of violation or the minimum sum of $1,000. The plaintiff is also entitled to punitive damages, attorney’s fees and litigation costs.

Code excerpts

N.C. Gen. Stat. Ann. 15A-287[1]. Interception and disclosure of wire, oral, or electronic communications prohibited.

(a) Except as otherwise specifically provided in this Article, a person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person:

(1) Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.

(2) 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:

  1. The device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communications; or
  2. The device transmits communications by radio, or interferes with the transmission of such communications.

(3) Willfully discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through violation of this Article; or

(4) Willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Article.

N.C. Gen. Stat. Ann. 15A-286[2]. Definitions.

As used in this Article, unless the context requires otherwise:

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

(8) “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 […]

(11) “Electronic surveillance” means the interception of wire, oral, or electronic communications as provided by this Article.

(13) “Intercept” means the aural or other acquisition of the contents of any wire, oral, or electronic communication through the use of any electronic, mechanical, or other device.

N.C. Gen. Stat. Ann.15A-296[3]. Recovery of civil damages authorized.

(a) Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this Article, has a civil cause of action against any person who intercepts, discloses, uses, or procures any other person to intercept, disclose, or use such communications, and is entitled to recover from any other person:

(1) Actual damages, but not less than liquidated damages, computed at the rate of one hundred dollars ($100.00) a day for each day of violation or one thousand dollars ($1,000), whichever is higher;

(2) Punitive damages; and

(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.

N.C. Gen. Stat. Ann. 14-202[4]. Secretly peeping into room occupied by another person.

(a) Any person who shall peep secretly into any room occupied by another person shall be guilty of a Class 1 misdemeanor.

(d) Unless covered by another provision of law providing greater punishment, any person who, while secretly peeping into any room, uses any device to create a photographic image of another person in that room for the purpose of arousing or gratifying the sexual desire of any person shall be guilty of a Class I felony.

(e) Any person who secretly or surreptitiously uses any device to create a photographic image of another person underneath or through the clothing being worn by that other person for the purpose of viewing the body of, or the undergarments worn by, that other person without their consent shall be guilty of a Class I felony.

(k) Any person whose image is captured or disseminated in violation of this section has a civil cause of action against any person who captured or disseminated the image or procured any other person to capture or disseminate the image and is entitled to recover from those persons actual damages, punitive damages, reasonable attorneys’ fees and other litigation costs reasonably incurred.

 

 

[1] Source: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_15A/GS_15A-287.html

[2] Source: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_15A/GS_15A-286.html

[3] Source: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_15A/GS_15A-296.html

[4] Source: http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-202.html