Since 1968, federal law has prohibited the use of bugging devices — secret microphones — to record private conversations. Here’s the relevant text:
[A]ny person who . . . intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any . . . oral . . . communication [is guilty of a crime and commits a civil violation] [18 U.S.C. 2511(1)(a)]
Here are the definitions of two key terms, “oral communication” and “intercept”:
“oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation [18 U.S.C. 2510(2)]
“intercept” means the aural or other acquisition of the contents of any . . . oral communication through the use of any electronic, mechanical, or other device [18 U.S.C. 2510(4)]
The basic idea is to criminalize listening in on someone’s private conversation using a recording device. The law applies both to the government and to private parties, and it provides for both criminal and civil remedies. On the whole, it’s a sensible criminal and civil law.
But is it constitutional? Does Congress have the power to broadly prohibit the use of bugging devices? I don’t think it does. In this post I’ll explain why.
It’s helpful to start in a somewhat unusual place, with the legislative history. It’s helpful because it shows that the drafters of this provision knew perfectly well that they were on constitutional thin ice with this law. Here’s the remarkable discussion from the 1968 Senate Report:
The broad prohibition of [18 U.S.C. 2511(1)(a)] is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign communications network, and the extent of the constitutional power of Congress