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Criminal Resource Manual

1055. Exceptions to the Prohibitions—Other Consensual Interceptions

When not acting under color of law, a person who intercepts a communication with the consent of a party does not violate Section 2511(1) unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any state. 18 U.S.C. § 2511(2)(d). Consent may be expressed or implied. Indeed, "(s)urveillance devices in banks or apartment houses for institutional or personal protection would be impliedly consented to." S.Rep. No. 1097, 90th Cong., 2d Sess. 94 (1968). The Criminal Division believes that consent can be implied where the communication involves institutional or personal protection, the interception is limited to the minimum necessary to fulfill that interest, and a communicating party is notified that his or her communications are subject to interception. See Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983). The Criminal Division also believes that the "tortious purpose" must be a tortious purpose other than the mere intent to surreptitiously record a communication. See Roberts v. Americable International, Inc., 883 F. Supp. 499, 503 (E.D. Cal. 1995).

[cited in USAM 9-60.200]