Saturday, June 05, 2004

Correction about strange wiretapping ruling

The criminal case described in this AP article is in Greene County, not Spotsylvania County. The article says:

"The girl's father learned of the alleged sexual abuse in February 2003 when he picked up an extension phone in his bedroom and heard his daughter and her boyfriend talking about it. Greene County Circuit Judge Daniel R. Bouton ruled last week that evidence stemming from the conversation inadmissible because the call was illegally intercepted."

I wouldn't have thought that picking up the telephone extension in another room involves the use of an "electronic, mechanical or other device" in a way that could meet the definition of "intercept." Some other kind of gadget has to be used to hear the conversation for an "interception," or so I understood the law. One of the lawyers in my firm wrote this article about the Tennessee and Virginia statutes in this area a few years back.

Under Va. Code 19.2-61,

"'Intercept' means any aural or other means of acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device," and

"'Electronic, mechanical or other device' means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:

(a) Any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of the subscriber's or user's business. . . ."

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