Is Your Spouse Taping Your Telephone Calls?: Title III and Interspousal Electronic Surveillance

Abstract:     
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 prohibits the intentional interception of any telephone conversation without the consent of one of the parties to the conversation. Although wiretapping evokes images of the Watergate scandal or commercial espionage, approximately 68 percent of all reported wiretapping matters involve one spouse's attempt to obtain evidence for use against the other spouse. Despite the prevalence of interspousal electronic surveillance, Title III fails to directly address the issue of whether such wiretapping activities are legal. This Article examines the issue of whether an implied interspousal immunity exception exists in Title III. Part I provides a context for the analysis by discussing the traditional approach taken by courts in interpreting statutes: that is, where courts consider the plain meaning of the text of the statute and then consider its legislative history to determine whether the plain meaning should be superseded by contradictory legislative history. Part II applies the traditional approach of statutory construction to Title III and concludes that neither the plain meaning of the text of Title III nor its legislative history support the existence of an implied interspousal immunity exception. Indeed, an examination of the entire legislative history of Title III, some of which has been ignored by those courts which have carved out an implied interspousal immunity exception, clearly demonstrates that Congress specifically intended to prohibit all electronic surveillance, including interspousal electronic surveillance, and specifically rejected a predecessor bill because it failed to prohibit such conduct. Part III then examines several policy considerations which undermine application of the interspousal immunity exception to Title III, including personal privacy concerns. The Article concludes by stating that an implied interspousal immunity exception in Title III does not and should not exist, and that the creation of such an exception by the courts represents misapplied, extralegal policy making.

Number of Pages in PDF File: 25

Keywords: Title III, Interspousal Immunity, Electronic Surveillance

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