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

West Virginia

Current status

The West Virginia Wiretapping and Electronic Surveillance Act is addressing interception of communications, whether wire, electronic or oral. 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. The criminal invasion of privacy statute holds unlawful to record other persons when fully or partially nude and is in a place where a reasonable person would have an expectation of privacy.

Impact of law

In West Virginia, West Virginia Wiretapping and Electronic Surveillance Act it is legal for a person to record an oral conversation or communication in which he or she is a party without the consent and without notifying the other parties. The same is valid for 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 in which he or she participates under the same circumstances as recording a private conversation.

References to Physical TSCM

The law defines the term “intercept” as the acquisition of the contents of communication “through the use of any electronic, mechanical, or other device”. This is an open perspective, based on which we can assume that it was the lawmaker’s intention to openly cover all possible such devices.

References to Cyber TSCM

As electronic communication is specifically covered by the law, and defined as “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”, we assert that the law also covers any instrument able to intercept such transfers of information.

Criminal implications

Any person who violates subsection the West Virginia Wiretapping and Electronic Surveillance Act is guilty of a felony and shall be imprisoned for up to five years or fined not more than $10,000 or both fined and imprisonment.

Civil implications

Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of this chapter can recover in a civil cause of action, any actual damages, punitive damages, attorney’s fee and other litigation costs.

Code excerpts

  1. Va. Code 62-1D-1[1]. Short title.

This act shall be known and may be cited as the “West Virginia Wiretapping and Electronic Surveillance Act.”

  1. Va. Code 62-1D-3. Interception of communications generally.

(a) Except as otherwise specifically provided in this article it is unlawful for any person to:

(1) Intentionally intercept, attempt to intercept or procure any other person to intercept or attempt to intercept, any wire, oral or electronic communication; or

(2) Intentionally disclose or intentionally attempt 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 the interception of a wire, oral or electronic communication in violation of this article; and

(3) Intentionally use or disclose or intentionally attempt to use or disclose the contents of any wire, oral or electronic communication or the identity of any party thereto, knowing or having reason to know that such information was obtained through the interception of a wire, oral or electronic communication in violation of this article.

(b) Any person who violates subsection (a) of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary for not more than five years or fined not more than ten thousand dollars or both fined and imprisoned.

(e) It is lawful under this article for a person to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception […]

  1. Va. Code 62-1D-2. Definitions.

“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 […]

  1. Va. Code 62-1D-12. Civil liability; defense to civil or criminal action.

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

(1) Actual damages, but not less than one hundred dollars for each day of violation;

(2) Punitive damages, if found to be proper; and

(3) Reasonable attorney fees and reasonable costs of litigation incurred.

  1. Va. Code 61-8-28[2]. Criminal invasion of privacy; penalties.

(b) It is unlawful for a person to knowingly visually portray another person without that other person’s knowledge, while that other person is fully or partially nude and is in a place where a reasonable person would have an expectation of privacy. A person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction, shall be confined in a county or regional jail for not more than one year or fined not more than five thousand dollars, or both.

(c) Any person who displays or distributes visual images of another person with knowledge that said visual images were obtained in violation of subsection (b) of this section is guilty of a misdemeanor and, upon conviction, shall be confined in a county or regional jail for not more than one year or fined not more than five thousand dollars, or both.

 

 

[1] Source: http://www.legis.state.wv.us/wvcode/ChapterEntire.cfm?chap=62&art=1D

[2] Source: http://www.legis.state.wv.us/wvcode/code.cfm?chap=61&art=8