KANSAS ASSOCIATION OF PRIVATE INVESTIGATORS



NOTE: The following two part article appeared in the monthly newsletter of the association during the summer of 1997. It was prepared by the association secretary who holds degrees in Administration of Justice (investigations and agency administration), but is not an attorney.

Monthly Educational Feature: {Prepared by John W. Ellis} Part I.

The basic legal code pertaining to this subject comes from the Omnibus Crime Control and Safe Streets Act of 1968 which included the federal wiretapping law. This section of the code, 18 USC 2510-2520, incorporated the administrative review standards and case precedents existing at the time. It has been slightly modified since its original passage. The original text applied the restrictions on interception only to wire and oral communications. The language has now been expanded to include electronic communications. Consequently, it now includes fax, cellular, and computer communications. Here is the definition currently in use:

"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 photooptical system that affects interstate or foreign commerce, but does not include--

(A) any wire or oral communication;

(B) any communication made through a tone-only paging device; or

any communication from a tracking device (as defined in section 3117 of this title).

The old definitions of wire and oral communications remain the same and are as follows:

"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.

The case law outlines the basic monitoring restrictions. Here is a short rundown of federal cases:

1. A party to the conversation may record it.

On Lee vs US, 343 US 747 (1952) - Informant wearing transmitter which is monitored by an agent outside is acceptable.

Lopez vs US, 373 US 427 (1963) - Agent wearing recorder is acceptable.

2. Recording is not permitted where there is a reasonable expectation of privacy, even in a public place.

Katz vs US, 389 US 347 (1967) - Recording conversation of person speaking on phone in public area is not permissible when the monitoring device was attached to the phone booth.

3. Federal restrictions apply to state cases.

Lee vs Florida, 392 US 378 (1968) - Federal prohibitions pertain to state prosecutions.

4. Subject of monitoring has review rights.

Alderman vs US, 394 US 165 (1969) - Subject has a right to review complete material recorded.

Kansas currently has two statutes which directly pertain to this topic, Eavesdropping and Breach of Privacy.

KSA 21-4001. Eavesdropping.

(1) Eavesdropping is knowingly and without lawful authority:

(a) Entering into a private place with intent to listen surreptitiously to private conversations or to observe the personal conduct of any person or persons therein: or

(b) Installing or using outside 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 outside, without the consent of the person or persons entitled to privacy therein; or

(c) Installing or using any device or equipment for the interception of any telephone, telegraph or other wire communication without the consent of the person in possession or control of the facilities for such wire communication.

(2) A "private place" within the meaning of this section is a place where one may reasonably expect to be safe from uninvited intrusion or surveillance, but does not include a place to which the public has lawful access.

(3) It shall not be unlawful for an operator of a switchboard, or any officer, employee, or agent of a public utility providing telephone communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is incident to the rendition of public activity service or to the protection of the rights or property of such public utility.

(4) Eavesdropping is a class A misdemeanor.

KSA 21-4002. Breach of privacy.

(1) Breach of privacy is knowingly and without lawful authority:

(a) Intercepting, without the consent of the sender or receiver, a message by telephone, telegraph, letter or other means of private communication; or

(b) 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 he illegally learned of the message in the course of employment with an agency in transmitting it.

(2) Subsection (1)(a) of this section shall not apply to message overheard through a regularly installed instrument on a telephone party line on an extension.

(3) Breach of privacy is a class A misdemeanor.

There have been some cases which outline how the Kansas courts are viewing the restrictions. Here is a quick survey:

1. Right to privacy in a private place is applicable to visual surveillance without regard to whether a photographer is actually present.

State vs Martin, 658 P.2d 1024, 232 Kan 778 (1983). Photographing a person in a "private place" with a hidden camera is eavesdropping within the meaning of statute defining such offense, whether or not photographer sees person at the moment the picture is taken or observes person entitled to privacy through the photograph. KSA 21-42001(1)(a).

2. Recording may occur where there is consent by one of the parties or consent by the owner or person in control of the premises or equipment.

State vs Roudybush, 686 P.2d 100, 253 Kan. 834, 844 (1984). Any party to private conversation may waive right of privacy and consent to electronic interception and recording.

State vs Wigley, 502 P.2d 819, 210 Kan. 472 (1972). Electronic recording of a message transmitted by telephone with consent of either sender or receiver is not a breach of privacy within statute prohibiting interception of telephone message without consent of sender or receiver. Installation or use of an electronic device to record communications transmitted by telephone with consent of person in possession or control of the facilities for such communication does not constitute "eavesdropping" within purview of eavesdropping statute.

State vs Bowman Nat. Sec. Agency, Inc. 647 P.2d 1288, 231 Kan. 258. (1982) The phrase "without the consent of the person in possession or control of the facilities for such wire communication" as used in statute making eavesdropping a crime means without consent of either owner of telephone facility or person who has been given possession or control of facility by owner.

3. The court is differentiating based on the type of equipment being used and exactly what is being monitored. Phone number recording devices are acceptable as is interception of some phone calls utilizing radio wave transmission.

State vs Gibson, 874 P.2d 1122, 255 Kan. 474 (1994). In layman's terms, "wiretap" involves voice communication being heard and recorded, whereas "pen register" deciphers numbers being dialed.

State vs Howard, 679 P.2d 197, 235 Kan. 236 (1984). That portion of cordless telephone conversation, intercepted by ordinary FM radio does not fall within category of "wire communication" under Title III of Omnibus Crime Control and Safe Streets Act, but is to be considered as "oral communication" subject to rules pertaining to interception of oral communication under that Act. Owners of cordless telephone located in private residence who had been fully advised by owner's manual as to nature of equipment, which involves transmission and reception of FM radio waves, had no reasonable expectation of privacy in their conversation and, therefore, police officials could lawfully monitor and tape record conversations of owners heard over ordinary FM radio and those conversations were admissible in criminal action charging owners with narcotic drug violation. Utilization of "pen register" does not violate provisions of Title III of the Omnibus Crime Control and Safe streets Act [case involved simultaneous monitoring by both means].

[Note: This case does not apply to cellular telephones and may be invalid for cordless phones based on the new language in the federal code enacted since this case decision].

Case law across the United States is now increasingly being applied to all forms of electronic monitoring using the same basic principles. It is becoming increasingly restrictive, especially in the business environment. Formerly, the courts viewed electronic monitoring on business premises as permissible under the legal concept that the owner was legally responsible for all work activities. This is being eroded. Here is a short sampling of cases which deal with this area:

US vs Mesa-Rincon, 911 F.2d 1433 (1990). Order authorizing video surveillance which contained procedures for minimizing recording of activity by persons with no connection to crime under investigation and allowed spot checks to see if targets of investigation were in the building, satisfied minimization requirement for issuance of video surveillance order. [Video surveillance court orders have limitations under federal court rules of evidence].

Ali vs Douglas Cable Communications, 929 F.Supp 1362. (1996). Extension telephones that enabled supervisors to become party to conversations between customers and customer service representatives furthered employer's communications system and thus satisfied equipment prong of business extension exception to Omnibus Crime Control and Safe Streets Act of 1968.

Covert use of surveillance device must be justified by valid business purpose to satisfy business extension exception to Omnibus Crime Control and Safe Streets Act of 1968..

It is not enough, for purposes of business extension exception to Omnibus Crime Control and Safe Streets Act of 1968, that employer's policy reasons for monitoring and recording telephone calls are justifiable. Personal call may not be intercepted in ordinary course of business under business extension exception to Omnibus Crime Control and Safe Streets Act of 1968 except to extent necessary to guard against unauthorized use of telephone or to determine whether call is personal or not; personal call may be intercepted in ordinary course of business to determine its nature but never its content.

Parish et al vs Northern Telecom, (1992) - Monitoring of telephones in an employee cafeteria or similar area is not permitted.

State of Hawaii vs Bonnell, 856 P.2d 1265 (1993) - Police monitoring of employee break room with employer consent is invalid. Employer can not waive employee's right to privacy.

Flanagan et al vs Epson America, Inc., BC0070036 Cal.Super.Ct. (1992). E-mail is mostly a business activity and properly subject to employer monitoring.

U.S. v North, 500 US 941 (1991) and Armstrong vs Executive Office of the President, 1 F.3d 1274 (1993). Electronic records are subject to same review and control procedures as paper documents. [Privacy of and production of deleted computer files was at issue].

O'Connor vs Ortega, 480 US 709, (1987) - Employer searching office, desk, and files of employee is subject to 'reasonableness test' for validity of action by employer; nonconsenting party (employee) can not challenge unless the action is unreasonable.

Monthly Educational Feature: {Prepared by John W. Ellis}

This month's feature is Part II of an examination of the limits on electronic monitoring. In Part I, the federal wiretapping code, its basic case law, and the Kansas statutes on Eavesdropping and Breach of Privacy were reviewed. This part examines the case law and the application of both the law and cases to the current technology.

The first point to make is the obvious difference between the federal and Kansas laws. The federal code has very equipment-oriented provisions, while the Kansas laws accomplish similar objectives by privacy-oriented provisions. This makes the latter broader in application while less definite in some ways. After looking at the provisions, here are some observations about the application during private investigations:

1. Limits of permissible surveillance.

May overhear conversation. A person known to be present who overhears the conversation is not violating the statutes.

Goldman vs US, 316 US 129 (1942). Words spoken in a room in the presence of another into a telephone receiver do not constitute a "communication" by wire within the Federal Communications Act.

Rathburn vs US, 355 US 107 (1958). Police monitoring call on extension line at request of receiver was ruled okay.

May record conversation. The recording may be done by a recorder on the person or by use of transmitting equipment on the person which is recorded nearby.

On Lee vs US, 343 US 747 (1952). Informant wearing transmitter which is monitored by an agent outside is acceptable.

Lopez vs US, 373 US 427 (1963). Agent wearing recorder was acceptable when he was a party to conversation.

May record conversation of others when a party consents.

State of Kansas vs Wigley, 502 P.2d 819, 210 Kan. 472 (1972). Electronic recording of a message transmitted by telephone with consent of either sender or receiver is not a breach of privacy within statute prohibiting interception of telephone message without consent of sender or receiver. Installation or use of an electronic device to record communications transmitted by telephone with consent of person in possession or control of the facilities for such communication does not constitute "eavesdropping" within purview of eavesdropping statute.

State of Kansas vs Roudybush, 686 P.2d 100, 253 Kan. 834, 844 (1984). Any party to private conversation may waive right of privacy and consent to electronic interception and recording.

May not record in a private place. A private place is usually held to be any location or circumstances where a person has a reasonable expectation of privacy.

Katz vs US, 389 US 347 (1967). Recording conversation of person speaking on phone in booth in a public area was not permissible when a monitoring device was attached to the phone booth.

Lee vs State of Florida, 392 US 378 (1968). Party line conversations are protected even though vulnerable. Police connections to a party line were ruled as illegal interception.

State of Kansas vs Martin, 658 P.2d 1024, 232 Kan 778 (1983). Photographing a person in a "private place" with a hidden camera is eavesdropping within the meaning of statute defining such offense, whether or not photographer sees person at the moment the picture is taken or observes person entitled to privacy through the photograph.

2. Interception of or by various types of electronic equipment.

Radio transmissions. Two-way radio equipment licensed by the FCC may be intercepted when the transmission is a general purpose, publicly-accessible, radio transmitted in the clear. The limitations enacted in 1994 have considerably reduced the type of transmissions that may be intercepted and recorded. Transmission which are scrambled or encrypted can not legally be intercepted.

Cordless telephone. Prior to 1994, cordless telephones could be intercepted legally by monitoring the FM frequency that transmitted between the handset and the telephone base. The court case listed below supports that view. Under the current limits, the transmission from the handset to the base could be intercepted, but the transmission of the other side of the conversation from the base back to the handset would qualify as a signal carried by a common carrier since it originated from a wire communication. Its interception would, therefore, be illegal. The Kansas case law cited below relies upon the FM frequency and the notification of risk found in the telephone owner manual. Consequently, it is stating that the radio transmission turns the private conversation public. The Kansas and federal cases cited below rely upon the federal law prior to 1994. These cases should not be relied upon to justify current surveillance.

State vs Howard, 679 P.2d 197, 235 Kan. 236 (1984). That portion of cordless telephone conversation, intercepted by ordinary FM radio does not fall within category of "wire communication" under Title III of Omnibus Crime Control and Safe Streets Act, but is to be considered as "oral communication" subject to rules pertaining to interception of oral communication under that Act. Owners of cordless telephone located in private residence who had been fully advised by owner's manual as to nature of equipment, which involves transmission and reception of FM radio waves, had no reasonable expectation of privacy in their conversation and, therefore, police officials could lawfully monitor and tape record conversations of owners heard over ordinary FM radio and those conversations were admissible in criminal action charging owners with narcotic drug violation.

See also US vs Smith, 978 F.2d 171 (1992).

Cellular telephones. Prior to 1994, cellular telephones were considered in the same classification as radios and could be intercepted. The change in definitions in 18 USC 2510 qualifies a cellular telephone as a transmission of a common carrier. Consequently, it could probably be legally intercepted between the cellular phone to the cell tower, but not from the cellular tower back to the cell phone. This means that one side could be legally intercepted, while the other side of the same conversation could not be. This requires a close reading of the federal law. There is no consensus in the current case law to clearly support this position. Current cases around the country are being decided both ways; there are currently no Kansas or US Supreme Court precedents on the revised federal law which is significantly different. The case below shows the precedent prior to 1994 implementation of new federal code.

Edwards vs State Farm Insurance Co, 833 F.2d 535.(1987). Interception of mobile phone conversation was not in violation of wiretapping act; constituted interception of a radio wave and was therefore permissible under Communications Act of 1934.

Pin registers or trap and trace devices. A pin register records numbers of incoming calls and can also be set to 'trap' the line; that is, maintain the connection until it could be traced. While not illegal under the wiretapping statutes, pin registers are specifically prohibited by federal law. This does not apply to "Caller ID" as provided by a common carrier in Kansas; however, Pennsylvania has a court ruling which states that "Caller ID" is a trap and trace device which makes its use illegal in that state. Pin registers are not legal for use in Kansas.

State vs Howard, 679 P.2d 197, 235 Kan. 236 (1984). Utilization of "pen register" does not violate provisions of Title III of the Omnibus Crime Control and Safe streets Act.

State vs Gibson, 874 P.2d 1122, 255 Kan. 474 (1994). In layman's terms, "wiretap" involves voice communication being heard and recorded, whereas "pen register" deciphers numbers being dialed.

18 USC 3121. General prohibition on pen register and trap and trace device use; exception. (a) IN GENERAL.--Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978.

Pagers. Tone pagers may be legally intercepted as radio transmissions. Voice pagers meet the qualification of a radio transmission by a common carrier which are encoded or specially modulated and can not be intercepted. 18 USC 2510(12)(B) and (16)(D); 18 USC 2511.

Beepers (Mobile Tracking Devices). May legally be monitored or intercepted in Kansas. The case law to this point is mixed, but is tending to allow usage. The primary precedent approved police use during surveillance occurring in a public place. The State of Oregon, however, has the opposite precedent, ruling it a search which requires a warrant. The federal code and Kansas statutes would allow it in a public place. However, if tracking is provided by use of a common carrier signal, this would change the legality of the tracking.

US vs Knotts, 460 US 276 (1983). Police use of a beeper (electronic tracking device) was ruled to be permissible when tracking vehicle on public streets.

State of Oregon vs Campbell, 759 P.2d 1040. Beeper attached to a car is a search.

18 USC 3117. Mobile Tracking Devices. (a) In General. If a court is empowered to issue a warrant or other order for the installation of a mobile tracking device, such order may authorize the use of that device within the jurisdiction of the court, and outside that jurisdiction if the device is installed in that jurisdiction. (b) Definition. As used in this section, the term "tracking device" means an electronic or mechanical device which permits the tracking of the movement of a person or object.

Faxes and computers. These transmissions meet the definition of electronic communication under federal law and may not be intercepted without permission. This includes those situations where the transmission is complete and the file is simply recorded in some electronic storage area, but does not protect it outside of the electronic form. 18 USC 2510(12) or (16)(F) and 18 USC 2511.

U.S. v North, 500 US 941 (1991) and Armstrong vs Executive Office of the President, 1 F.3d 1274 (1993). Electronic records are subject to same review and control procedures as paper documents. [Privacy of and production of deleted computer files was at issue].

US vs Gregg, 829 F.2d 1430 (1987). Recovery of discarded printouts of telex communications from trash by Customs Agents did not constitute interception under the wiretapping statute.

Audio or sound amplifiers. May not legally be used unless they only correct a personal hearing deficiency to the normal range. 18 USC 2510(5)(b) and 18 USC 2511.

Video-Cameras. Video surveillance is subject to two areas of court review. It is both a "photographic" device and an "audio" device. Under current case law, the video portion may be used in public areas without limitation on its image magnification while its audio portion is subject to the limitations of hearing amplifiers. Its use in public areas has minor court limitations imposed by the reasonable expectation of privacy while its use in private areas must meet the guidelines established for recording of conversations in private areas. It would be extremely difficult, but still possible, to use it in a way which would cause an illegal interception under the federal wiretapping code. The photographic portion may rely upon electronic image amplification such as digital zooms or night-vision devices (infrared). The case law in this area of imagery is not well-developed. The court seems to be treating this in the same manner as binoculars or telephoto lenses. One federal ruling in a foreign intelligence case clearly stated that silent video camera recordings were not prohibited. The case obviously concludes that the lawfulness of videocamera recording will be determined upon how the separate image and sound recordings are used. The sound recordings may be evaluated in the same category as electronic monitoring controlled by the wiretapping provisions and the image recordings will be treated by the courts as photography.

State of Kansas vs Martin, 658 P.2d 1024, 232 Kan 778 (1983). Photographing a person in a "private place" with a hidden camera is eavesdropping within the meaning of statute defining such offense, whether or not photographer sees person at the moment the picture is taken or observes person entitled to privacy through the photograph.

US vs Mesa-Rincon, 911 F.2d 1433 (1990). Order authorizing video surveillance which contained procedures for minimizing recording of activity by persons with no connection to crime under investigation and allowed spot checks to see if targets of investigation were in the building, satisfied minimization requirement for issuance of video surveillance order. [Video surveillance court orders have limitations under federal court rules of evidence].

US vs Koyomejian, et al 970 F.2d 536 (1992). Domestic silent video surveillance undertaken as part of domestic criminal investigation is subject to Fourth Amendment and is not regulated by wiretapping provisions as a wire, oral or electronic communication.

Imagery from Non-Visible Light Spectrum. Usage of infrared is generally acceptable for visual surveillance, usage of ultraviolet light is mixed in acceptance for visual surveillance, and usage of X-ray is unacceptable for surveillance in public areas; the last is generally ruled as a search requiring consent or court authorization. Ultraviolet light usage is being rejected for surveillance in some instances based on the overall circumstances of its usage. Typically it is rejected when associated with "tracing stain" identification where there is no prior reasonable suspicion. There are no clear, current precedents in Kansas or U.S. Supreme Court.

Sims vs Statell, 425 So.2d 563. Night-vision surveillance use acceptable.

People of Colorado vs Santistevan, 715 P.2d 792. Use of ultraviolet light surveillance of hands was rejected; ruled a search.

US vs Williams, 902 F.2d 678. Use of ultraviolet light was upheld.

State of Tennessee vs Mabou, 648 SW 2d 271. Use of X-Ray on a person was ruled a search.

Satellite Signals. Interception of satellite signals is not legal under 18 USC 2510(16)(E) and 18 USC 2511. It appears to be a common carrier signal. Case law is currently mixed with no clear precedent in Kansas. The cases ruling that it is legal to intercept are doing so on the basis that the transmission is not encoded or scrambled and therefore constitutes a publicly accessible radio signal. However, these cases were heard before the 1994 change to federal laws, and should not be relied upon to support interception.

Broadcast Media Signals. Interception of broadcast media signals may be either legal or illegal depending upon the technical nature and usage of the signals. Those on frequencies meant for public viewing or hearing (TV channels and Radio station AM-FM) are clearly available, but those transmissions that originate from remote broadcast sites or which are used for technical control of the broadcasters equipment may not legally be intercepted except under limited circumstances. The exceptions are outlined in Title 47, Code of Federal Regulations Part 74 subparts D, E & F. The explanation becomes somewhat technical and is dependent partly upon the usage of the frequency being made at the time.