Senator JOSEPH P. CRYAN
District 20 (Union)
Requires parties to certain telephone communications to give notice of intention to record communications in order for communications to be lawfully recorded; failure to give notice violates “New Jersey Wiretapping and Electronic Surveillance Control Act.”
CURRENT VERSION OF TEXT
An Act concerning the interception of certain wire communications, 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 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: (1) a wire [,] communication except as described in paragraph (2) of this subsection, or an 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, 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 [.]; or
(2) a wire communication conducted by telephone, including a cellular telephone, where such person is a party to the communication and, at the beginning of the communication, notifies all other parties to the communication that the communication is being intercepted, and this notification also informs those parties that they are each authorized to intercept the communication without giving any further notice to do so, 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. However, the wire communication described in this paragraph may be intercepted by a person not acting under color of law, without any prior notice to another party, when the communication conveys a threat of a crime of violence to cause death or bodily harm against another, or is otherwise threatening, intimidating, or harassing in nature, or the person has a reasonable suspicion that a party to the communication is committing, is about to commit, or has committed a crime, disorderly persons or petty disorderly persons offense, or a violation of any ordinance or regulation.
The fact that [such] a 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 (1) or (2) of this subsection 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, codified as 47 U.S.C. s.553; or
(2) is excepted from the application of section 705(a) of the Communications Act of 1934 by section 705(b) of that Act, codified as 47 U.S.C. s.605(a) and (b);
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 first day of the third month next following enactment.
This bill would require all private parties, i.e., all parties “not acting under color of law” as public officials or employees in carrying out their governmental responsibilities, to give notice of their intention to record a telephone communication to which they are a party, whether conducted by landline or cellular network, in order to engage in the lawful recording of that communication. This notice would be required to occur at the beginning of the communication, and would also be required to inform the other parties to the communication that they are each authorized to record the communication without giving any further notice to do so. Recording any such communication, without giving proper notice, would represent an illegal act of wiretapping in violation of the “New Jersey Wiretapping and Electronic Surveillance Control Act,” P.L.1968, c.409 (C.2A:156A-1 et seq.).
Such illegal wiretapping would be graded, in accordance with existing law, as a crime of the third degree. See P.L.1968, c.409, s.3 (C.2A:156A-3). A crime of the third degree is ordinarily punishable by a term of imprisonment of three to five years, a fine of up to $15,000, or both. An aggrieved person illegally recorded would also be entitled to recover, through a civil lawsuit: actual damages, but not less than liquidated damages computed at $100 per day for each day of violation, or $1,000, whichever is higher; punitive damages; and attorney’s fee and other litigation costs. See P.L.1968, c.409, s.24 (C.2A:156A-24).
The bill’s notice requirement for recording telephone communications would not apply to any communication conveying a threat of a crime of violence to cause death or bodily harm against another, is otherwise threatening, intimidating, or harassing in nature, or is such that the person making the recording has a reasonable suspicion that a party to the communication is committing, is about to commit, or has committed a crime, disorderly persons or petty disorderly persons offense, or a violation of any ordinance or regulation. In these instances, the person making the communication could be recorded without his or her knowledge, and the recording party would not be engaged in an illegal wiretapping activity.