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1044. Definitions—"Oral Communication"

The term "oral communication" is defined in 18 U.S.C. § 2510(2) to mean any oral communication uttered by a person having a justifiable expectation of privacy. The legislative history indicates that an expectation of privacy would normally be justifiable in one's own home (citing Silverman v. United States, 365 U.S. 505 (1961)) or office (citing Berger v. New York, 388 U.S. 41 (1967)) but would not be justifiable in a jail cell (citing Lanza v. New York, 370 U.S. 139 (1962)) or an open field (citing Hester v. United States, 265 U.S. 57 (1924)). See S.Rep. No. 1097, 90th Cong., 2d Sess. 90 (1968). A trespasser would not have a justifiable expectation of privacy. Cf. United States v. Pui Kan Lam, 483 F.2d 1202 (2d Cir. 1973), cert. denied, 415 U.S. 984 (1974). An "oral communication" is specifically excluded from the definition of an "electronic communication." 18 U.S.C. § 2510(12)(A). The effect of the exclusion is to make it clear that an oral communication under the statute can never be a radio communication. See United States v. Rose, 669 F.2d 23, 25-26 (1st Cir.), cert. denied, 459 U.S. 828 (1982).

[cited in JM 9-60.200]

Updated January 21, 2020