Privacy

Court Affirms Scope of Provider Exception to the Wiretap Act

Published: Jan. 27, 2012

Updated: Oct. 05, 2020

Providers who want to investigate illegal activities on their networks frequently ask us about the scope of the provider exception to the federal Wiretap Act’s prohibition on interception of communications.  The provider exception allows providers to intercept communications for the protection of their “rights and property.”  18 U.S.C. § 2511(2)(a)(i).  Prior court’s have required that a provider’s actions must be “reasonable” to fall within the exception, but few cases have dealt with these issues aside from the old “blue box” cases.  A federal district court in Louisiana has provided additional insight into the scope of the exception and affirmed the potential breadth of the exception based on the nature of the investigation undertaken by the provider.  In U.S. v. Hudson, 2011 WL 4727811 (E.D. La. Oct. 5, 2011), a criminal defendant sought to have intercepts conducted by cellular provider Alltel suppressed on the basis that they were obtained in violation of the Wiretap Act.  Alltel conducted intercepts of the full content of phones that were linked to a fraud ring over approximately a six month period.  Investigators listened to as much of the calls as necessary to determine whether the calls were relevant to the investigation and if they were not, they stop listening.  The defendant, Hudson, argued that the scope of the intercepts was unreasonable and thus fell outside of the provider exception.  The court disagreed and held that the provider exception did apply given the limited time duration during which calls were recorded, that the phones intercepted were suspected to be part of the fraud ring and the number of phones was reasonable in light of the scope of the investigation, Alltel needed the content of the calls to try to identify the ring leader of the fraud conspiracy, and they did not continue listening to calls after they were determined to be irrelevant to the investigation.

While every provider must still be careful to tailor efforts to curb illegal or harmful activity on their networks to not collect or review more communications contents than necessary, this case is a welcome addition to the somewhat sparse body of case law on the scope of the provider exception and should give providers in similar situations further comfort.