1047

Definition—"Electronic, Mechanical, or Other Device"

The term "electronic, mechanical, or other device" is defined in 18 U.S.C. § 2510(5) to mean any device or apparatus which can be used to intercept communications. It is also meant to include any combination of parts designed or intended for use in converting those parts into such a device or apparatus and from which such a device or apparatus may be readily assembled. See S.Rep. No. 541, 99th Cong., 2d Sess. 13 (1986). Two exceptions to the meaning of "electronic, mechanical, or other device" are built into the statute. The first exception is for telephone instruments furnished to a subscriber or user by a provider of a wire or electronic communication service and which are being used by the subscriber or user in the ordinary course of its business. The courts of appeals do not agree on the scope of the exception as it pertains to telephone extensions. The Criminal Division believes that the better view is found in United States v. Harpel, 493 F.2d 346, 351 (10th Cir. 1974), wherein the court held that "a telephone extension used without authorization or consent to surreptitiously record a private telephone conversation is not used in the ordinary course of business. This conclusion comports with the basic purpose of the statute, the protection of privacy . . . ." Accord Deal v. Spears, 980 F.2d 1153, 1157-58 (8th Cir. 1992). But cf. Epps v. St. Mary's Hospital of Athens, Inc., 802 F.2d 412, 415 (11th Cir. 1986); Briggs v. American Air Filter, Inc., 630 F.2d 414 (5th Cir. 1980); Anonymous v. Anonymous, 558 F.2d 677 (2d Cir. 1977). In addition, the Criminal Division takes the position that supervisory observing equipment used by some employers to monitor employee telephone communications falls within the "ordinary use" exception only if it is used solely for the legitimate business purpose of determining the need for training or improving the quality of service rendered by employees in the handling of telephone calls, and only after all employees are informed that their business telephone contacts are subject to observation. See James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir. 1979). The second exception from the definition of an "electronic, mechanical or other device" is a hearing aid used to correct subnormal hearing to no better than normal hearing. Use of an aid to hear sound that would otherwise be inaudible to a person with normal hearing does not fall within the exception. [cited in USAM 9-60.200]