Hannah Clarisse

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As technology continues to evolve, the need to prevent unconsented recording of communications is more important than ever before. The way that Americans communicate has changed considerably in the 140 years since the installation of the first telephone lines.[1] In 1968, when Congress enacted the Federal Wiretap Act,[2] 20 percent of American homes did not have a telephone.[3] Today, over 95 percent of Americans own some type of mobile phone, and 49 states have passed some form of wiretapping statute.[4] Vermont is the only state that has not.[5]

Wiretapping laws have struggled to keep pace with the rapid changes in communications technology.[6] Even the term “wiretapping” is outdated and no longer accurately reflects the ways in which most communications are intercepted.[7] For wiretapping laws to achieve their intended purpose, and remain effective and enforceable, the laws must be able to adapt to evolving communication technology. As the only state without a wiretapping statute, Vermont is in a unique position to learn from the challenges faced in other jurisdictions in adopting a statute or policy that will endure future technological changes to communications.[8] An effective law or policy will ensure that Vermont can continue to prevent the interception of private communications, and allow for legal interception in appropriate situations, as technology continues to evolve.

This note will provide contextual information on federal and state wiretapping laws. It will also review the various methods courts have used in the application of those laws to modern communications technology, and propose a statutory and/or interpretive framework that Vermont should adopt. Part I will provide a historical overview of federal wiretapping laws, and trends that have emerged from the different approaches states have taken to codify wiretapping statutes. It will also discuss how Vermont courts have addressed issues involving wiretapping in the absence of a statute. Part II will address the challenges other states have encountered in interpreting and adapting wiretapping statutes in light of technological changes. It will also offer a comparative analysis of the successes and failures of different approaches to those challenges. Finally, Part III will propose strategies Vermont should use to avoid similar problems with evolving technological issues with wiretapping laws. It will include a recommendation as to whether or not the state should enact a wiretapping statute, and if so, what important considerations must be taken in drafting the law.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] How Phones Work, Telecomm. Hist. Grp. Virtual Museum, http://www.telcomhistory.org/vm/sciencePhonesWork.shtml (last visited Sept. 28, 2017).

[2] 18 U.S.C. § 2511 (2008).

[3] Historical Census of Housing Tables: Telephones, U.S. Census Bureau, https://www.census.gov/hhes/www/housing/census/historic/phone.html (last revised Oct. 31, 2011).

[4]Mobile Fact Sheet, Pew Res. Ctr (Jan. 12, 2017), http://www.pewinternet.org/fact-sheet/mobile/; Carol M. Bast, What’s Bugging You? Inconsistencies and Irrationalities of the Law of Eavesdropping, 47 DePaul L. Rev. 837, 851 (1998).

[5] Bast, supra note 4.

[6] See, e.g., Modernizing the Electronic Communications Privacy Act, ACLU, https://www.aclu.org/issues/privacy-technology/internet-privacy/modernizing-electronic-communications-privacy-act-ecpa (last visited Sept. 28. 2017) (“Since 1986, technology has advanced at breakneck speed while electronic privacy law remained at a standstill.”).

[7] See, e.g., Christopher Woolfe, The History of Electronic Surveillance, From Abraham Lincoln’s Wiretaps to Operation Shamrock, Public Radio Int’l (Nov. 7, 2013), https://www.pri.org/stories/2013-11-07/history-electronic-surveillance-abraham-lincolns-wiretaps-operation-shamrock (describing how “the first wiretap” involved an eavesdropper “literally tap[ping] the telegraph wire anywhere along its length” to hear transmitted messages).

[8] See, e.g., Miles v. State, 781 A.2d 787, 800 (Md. 2001) (holding that a call between a cell phone and a land line was a “wire communication” under Maryland law because “[t]he transmission … involves the sound waves of the conversation being transmitted over the cellular phone company’s designated frequency to the cellular phone carrier’s transmitter, which sends the signal over a land-based wire to the ordinary telephone”); State v. Tango, 671 A.2d 186, 188 (N.J. 1996) (discussing whether a cell phone wiretap could comply the requirement that a warrant state the location of the phone to be tapped, because cell phones do not have a fixed location).