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Intra-Family Surveillance

The Supreme Court yesterday denied Mandamus in In Re Electronic Privacy Information Center, a case that would have challenged the Foreign Intelligence Surveillance Court’s order to Verizon to disclose local telephone calls to the National Security Agency.  See Order List here. This denial of Mandamus is not particular surprising.  But, the focus on government surveillance provides a good opportunity to discuss issues closer to home: intra-family surveillance, something we see frequently in our family law practice.

Checking Someone Else’s Email: as you recall from my blog post about J.J. v B.A. (available here). it is illegal to check another person’s email without that person’s permission.  Moreover, in the District of Columbia, this can be the basis for a civil protection order.  Some experts advise that if an email account is left open (so you do not need to enter a password to read the emails) it is fair game.  But because J.J. v. B.A. does not give any indication of whether a password was entered, I advise clients that the safest route is not to check any other person’s email without that person’s consent.  Often, we can request the emails in discovery.

GPS:  As you recall, the Supreme Court decided recently that the Government placing a GPS device on a person’s car without a warrant violated the Fourth Amendment.  See U.S. v Jones (available here).  An important distinction between the Government and a private actor is that a private actor cannot violate the Fourth Amendment.  That being said, you might have a difficult time finding a private investigator who will be willing to run a GPS search on someone’s vehicle, given the grayness of the law right now.  The one exception is if the vehicle is jointly-titled.  If your name is on the title of a vehicle, it is legal to put a GPS tracker on the vehicle, even if it is primarily driven by someone else.

Taping Telephone Calls:  The laws about taping telephone calls vary by jurisdiction.  In a “one-party” jurisdiction, only one party to the call needs to consent to (or even know about) the taping.  In an “all-party” jurisdiction, all parties need to consent to the taping.  The District of Columbia is a “one-party” jurisdiction.  Thus, you can tape telephone calls that you are a party to.  And, you can carry a taping device in a pocket, etc. to tape in-person conversations you may have.  In Maryland, however, you need the consent of everyone you tape.  Thus, if you tape a telephone call you must reveal at the beginning of the call that it is being taped.  If you carry a taping device on your person, you must reveal this to anyone who is picked up by the device.

When it comes to interstate calls, the safest course of action is to assume the law of the stricter state applies.  In this age of cell phones, be very careful about this – if you are calling someone else’s cell phone and that person is in an “all-party” jurisdiction, it may be illegal to tape the call.  (You will also run into federal laws when calls are made across state lines.)

Messages left on voicemails are always fair game (obviously, because the person leaving the message knew she or he was being taped).



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