Wire and Electronic Communications Interception  'The law prohibits the unauthorized interception, disclosure, and use of wire, oral, or electronic communications.

Department of Justice

Definitions

wire communication means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce and such term includes any electronic storage of such communication;

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;

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;

electronic, mechanical, or other device means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than--

(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties;

contents, when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication;

aggrieved person means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed;

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, photo-electronic or photo-optical system that affects interstate or foreign commerce

electronic communications system means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications;

Offenses

The essential elements of a violation are:

(1) the intercepting, endeavouring to intercept, or procuring any other person to intercept a wire, oral, or electronic communication; and

(2) the doing of such acts intentionally.

These elements contain sub-elements. For example, a wire communication must be furnished or operated by a person engaged in providing facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce. Thus, private communication systems are covered where the ''''affecting commerce'''' jurisdictional basis is present.

In addition, an oral communication must be uttered by a person having a justifiable expectation of privacy. An electronic communication must be made through a system that affects interstate or foreign commerce.

Prohibitions

The law prohibits the unauthorized interception, disclosure, and use of wire, oral, or electronic communications. The prohibitions are absolute. Consequently, unless an interception is specifically authorized by signal provider or the courts, it is impermissible and, assuming existence of the requisite criminal intent, is in violation of the wiretap laws.

The wiretap laws are a blanket prohibition against the intentional interception, endeavour to intercept, or procurement of another person to intercept or endeavour to intercept any wire, oral, or electronic communication.

Penalties

The basic penalty provision for the intentional interception of a wire, oral, or electronic communication is five years imprisonment and a fine. There are, however, a few exceptions.

The first exception applies to unscrambled, unencrypted radio communications provided that the conduct is a first offence and is not for a tortuous or illegal purpose, or purposes of direct or indirect commercial advantage or private financial gain. Under such circumstances, the offender is subject to one year imprisonment and a fine.

In addition, if the interception is the private or home viewing of a private cable or satellite video communication, the offence requires a mandatory $500 civil fine.

A further exception to the criminal provisions applies to the interception of an unencrypted, unscrambled satellite transmission that is transmitted (i) to a broadcasting station for purposes of retransmission to the general public; but not including data transmissions or telephone calls.

It is intended that the private viewing of satellite and cable programming, network feeds and certain audio subcarriers will continue to be governed by wiretap legislation.

Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited

(1) Except as otherwise specifically provided in this chapter any person is guilty of an offence who

(a) intentionally intercepts, endeavours to intercept, or procures any other person to intercept or endeavour to intercept, any wire, oral, or electronic communication;

(b) intentionally uses, endeavours to use, or procures any other person to use or endeavour to use any electronic, mechanical, or other device to intercept any oral communication when--

(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or

(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or

(iv) such use or endeavour to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce.