S1508

An Act concerning the recording of certain conversations and amending P.L.1968, c.409.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 4 of P.L.1968, c.409 (C.2A:156A-4) is amended to read as follows:

4. It shall not be unlawful under [this act] P.L.1968, c.409 (C.2A:156A-4) for:

a. An operator of a switchboard, or an officer, agent or employee of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service. No provider of wire or electronic communication service shall utilize service observing or random monitoring except for mechanical or service quality control checks;

b. Any investigative or law enforcement officer to intercept a wire, electronic or oral communication, where such officer is a party to the communication or where another officer who is a party to the communication requests or requires him to make such interception;

c. Any person acting at the direction of an investigative or law enforcement officer to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; provided, however, that no such interception shall be made without the prior approval of the Attorney General or his designee or a county prosecutor or his designee;

d. A person not acting under color of law to intercept a wire, electronic or oral communication, where [such person is a party to the communication or one of the parties to the communication has] all parties to the communication have given prior consent to such interception, unless such communication is intercepted or used for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State or for the purpose of committing any other injurious act[. The fact that such person is the subscriber to a particular telephone does not constitute consent effective to authorize interception of communications among parties not including such person on that telephone. Any person who unlawfully intercepts or uses such communication as provided in this paragraph shall be subject to the civil liability established in section 24 of P.L.1968, c.409 (C.2A:156A-24), in addition to any other criminal or civil liability imposed by law];

e. Any person to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;

f. Any person to intercept any radio communication which is transmitted:

(1) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;

(2) by any governmental, law enforcement, civil defense, private land mobile, or public safety communication system, including police and fire, readily accessible to the general public;

(3) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or

(4) by any marine or aeronautical communications system;

g. Any person to engage in any conduct which:

(1) is prohibited by section 633 of the Communications Act of 1934; or

(2) is excepted from the application of section 705(a) of the Communications Act of 1934 by section 705(b) of that Act;

h. Any person to intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of such interference; or for other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not scrambled or encrypted; or

i. A provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service.

(cf: P.L.1999, c.151, s.3.)

2. This act shall take effect on the 90^th day following enactment.

STATEMENT

This bill would make it unlawful for a private citizen to record a phone call or other conversation unless all parties consent. Currently, the wiretapping statutes provide that in situations where a person has an expectation of privacy, it is unlawful for a private citizen to use an electronic, mechanical, or other device to record a conversation, unless the person making the recording is a party to the conversation, or one of the parties consents to the recording. The statutes set out exceptions for law enforcement, which would not be affected by this bill.

Violation of the wiretapping law is a crime of the third degree, punishable by a term of imprisonment of three to five years, a fine of up to $15,000, or both.

Because New Jersey recording law generally requires the consent of only one party to a conversation, New Jersey is currently known as a “one-party consent” state. This bill would change the law to make New Jersey an “all-party consent” state. Currently, 11 states require such “all-party consent.”