The Omnibus Crime Control and Safe Streets Act, aka Wiretapping Act, prohibits employers from intentionally intercepting any wire, oral or electronic communications that take place on their premises. To stay legal, employers must know the definitions of, and exceptions to, the act; procedures to follow when monitoring employee electronic communications; and steps to limit legal liability when engaging in video surveillance.
The Omnibus Crime Control and Safe Streets Act of 1968, more commonly known as the Federal Wiretapping Act, prohibits employers from intentionally intercepting, or getting others to intercept, any wire, oral, or electronic communication that takes place on the premises of any business or commercial establishment.
Key definitions
Intercept means the acquisition of the contents of any wire, electronic, or oral communication through the use of an electronic or mechanical device.
Wire communication refers to any aural transfer of communications through the use of wire, cable, or other similar connection between the point of origin and the point of reception.
Oral communication refers to any oral communication offered by a person expecting that it will not be intercepted.
Electronic communication means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted by wire, radio, electromagnetic, photo-electronic, or photo-optical system. It does not include: wire or oral communication, communication made through a tone-only paging device, or communication from a tracking device.
Coverage
The Wiretapping Act applies to any employers that have operations of business which affect interstate or foreign commerce. Exempt are businesses which operate only within the confines of one state.
Exceptions
Electronic monitoring of employee work performance (e.g., monitoring telephone conversations) may be utilized under certain circumstances.
- One party consents to the wiretap.
- The conversation is monitored through the use of a telephone extension in the ordinary course of business.
- A communication service provider monitors the check for the quality of the transmission.
- A court order has been obtained.
Electronic Communications Privacy Act of 1986 (ECPA)
The ECPA amended the Wiretapping Act to address the interception of e-mail communications. The 1986 statute expanded pre-existing prohibitions on the unauthorized interception of wire and oral communications to encompass electronic communications as well. In general, the statute criminalizes the intentional interception of another’s electronic communication, where the interception occurs on the premises of a business affecting interstate commerce.
The ECPA follows the exceptions of the Wiretapping Act, but adds the following.
The statute does not prohibit the interception of messages by the e-mail service provider, where the interception is necessary to provide the e-mail service, or to protect the property rights of the provider. This exception is understood to mean that messages sent on completely “internal” company electronic mail systems are either not covered by the statute, or else have fewer protections than messages sent on more public systems.
FAQs about Wiretapping Act
1. What procedures should employers follow when monitoring employees’ electronic communications?
An employer should follow certain procedures in order to monitor employees’ electronic communications legally.
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Give employees reasonable notice by informing them of the hours of the day they will be monitored, putting warning stickers on telephones subject to monitoring, or using a “beep” to signify to employees that the conversation is being recorded.
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Explain to employees why monitoring is a business necessity. Examples: to gauge sales skills, customer service techniques, etc.; to ensure that only business-related phone calls are being made.
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Have employees sign a memo indicating their understanding and consent for monitoring procedures.
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Provide employees with access to other telephones for private conversations.Take on the role of an impartial third party, such as a court, for evaluating the reason for and method of surveillance.
- Allow employees access to any information collected electronically about them. Otherwise, the information should be limited to those with a need to know.
If you’re considering using a video surveillance system to investigate problems in your workplace, here are a few tips to help reduce your liability when keeping an eye on employees.
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Skip the sound option when using video cameras for surveillance purposes. Almost every court that has addressed this issue has ruled that silent surveillance is legal where monitoring is not prohibited.
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Monitor only those areas in which employees do not have a reasonable expectation of privacy, such as hallways, the break room, and common rooms.
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If you do need to monitor an area where employees have some expectation of privacy, like a locker room, let employees know they’re being watched. Install the cameras in plain view, and mount signs, stickers, etc., informing employees of the surveillance.
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Include a simple statement in your company policy informing employees that the company reserves the right to monitor employee activity in order to ensure compliance with rules pertaining to security and safety.
3. What is the Electronic Communications Privacy Act of 1986 (ECPA) and what impact does it have on the Federal Wiretapping Act?
The ECPA amended the Wiretapping Act to address the interception of e-mail communications. The 1986 statute expanded pre-existing prohibitions on the unauthorized interception of wire and oral communications to encompass electronic communications as well. In general, the statute criminalizes the intentional interception of another’s electronic communication, where the interception occurs on the premises of a business affecting interstate commerce.
The ECPA follows the exceptions of the Wiretapping Act, but adds the following.
The statute does not prohibit the interception of messages by the e-mail service provider, where the interception is necessary to provide the e-mail service, or to protect the property rights of the provider. This exception is understood to mean that messages sent on completely “internal” company electronic mail systems are either not covered by the statute, or else have fewer protections than messages sent on more public systems.
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