or other like connection.” It essentially covers phone conversations. An oral communication is “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” This constitutes any oral conversation including phone conversations with a person where there is the expectation that no third party is listening. Penalties. Individuals who violate ECPA face up to five years of jail time and a $250,000 fine. Victims are also entitled to a civil suit of actual damages, in addition to punitive damages and attorneys’ fees. Electronic Eavesdropping. ECPA protects a person’s wire and electronic communications from being intercepted by another private individual. In general, the statute bars wiretapping and electronic eavesdropping, possession of wiretapping or electronic eavesdropping equipment, and the use or disclosure of information unlawfully obtained through wiretapping or electronic eavesdropping. The Wiretap Act prohibits any person from intentionally intercepting or attempting to intercept a wire, oral or electronic communication by using any electronic, mechanical, or other device. An electronic device must be used to perform the surveillance; mere eavesdropping with the unaided ear is not illegal under ECPA. Exceptions. There are exceptions to this blanket prohibition, such as if the interception is authorized by statute for law enforcement purposes or consent of at least one of the parties is given. Although some states such as California prohibit the recording of conversations unless all parties consent, ECPA requires only one party to consent. An individual can record his own conversation without violating federal law. In the workplace, an employer would likely not violate ECPA by listening to an employee’s communications if, for example, blanket consent was given as part of the employee’s contract. In addition to criminalizing the actual wiretapping or electronic eavesdropping, ECPA also prohibits an individual from disclosing such information obtained illegally if the person has reason to know that it was obtained illegally through the interception of a wire, oral, or electronic communication. 53
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