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1046

Definition—"Intercept"

The term "intercept" is defined in 18 U.S.C. § 2510(4) to mean 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. The Criminal Division takes the position, espoused by a number of courts, that would limit "intercept" to "the participation by the one charged with an `interception' in the contemporaneous acquisition of the communication through the use of [a] device." United States v. Turk, 526 F.2d 654, 658 (5th Cir.) (replay of audio cassette), cert. denied, 429 U.S. 823 (1976). Accord Reynolds v. Spears, 93 F.3d 428, 432 (8th Cir. 1996). See Payne v. Norwest, 911 F. Supp. 1299, 1303 (D. Mont. 1995) (voice mail).

The 1986 Act broadened the definition of "intercept" to include non-aural acquisitions to accommodate the inclusion of electronic communications as protected communications under Title III. The Senate Report specifically noted that the "definition of `intercept' under current law is retained with respect to wire and oral communications except that the term `or other' is inserted after `aural.'" S. Rep. No. 99-541, 99th Cong., 2d Sess.. 13 (1986), reprinted in 1986 U.S.Code Cong. & Ad.News 3555, 3567.

[cited in USAM 9-60.200]