Have you ever had a conversation with someone and later down the line, they denied something that they said? Or has there ever been a situation where you were not able to be present during a conversation or event, but you wanted to know what was said, which some refer to as being “a fly on the wall”? Well, as tempting as it may be, you should think twice before secretly recording without getting consent.
About three months ago, in September, a concerned mother had similar thoughts as to those that were just mentioned above. Her nine-year old daughter continuously came home from school and told her that she was being bullied at her elementary school and that nothing was being done about it. The woman claimed that she reached out via emails and phone calls to the school, but no one responded to her. As a concerned parent, the woman took matters into her own hands and placed a digital recorder in her daughter’s backpack so that she could get a recording and have evidence of the bullying to provide to the school. However, things did not go as planned. The digital recorder was discovered by the school and the woman’s daughter was moved to a new classroom. Worst of all, about a month after the discovery of the video recorder, the child’s mother was charged with felony use of a device to intercept oral communication and misdemeanor contributing to the delinquency of a minor.
This situation is two-sided. One the one side, I’m sure any parent can relate to the mother’s concern and angriness that nothing was being done about her child being bullied and she needed concrete proof. Also, if it is in fact true that the school never responded to her communications, it seems that the only way to verify the bullying was to have it recorded since it is likely that even had the mother sat in on the child’s class during the school day, the children would not have bullied her daughter in her presence. On the other hand, the law is the law, and some may have an opinion that she should still be held accountable for her actions, just like any other person who commits a crime and gets caught. Although it appears that this mother had good intentions and was looking out for the best interest of her child, she still had a duty to follow the law. The mother was originally scheduled for a preliminary hearing for the crimes in early January, but recently both charges were dropped.
It is very likely that this is not the first time a parent or a concerned family member has done this or something of this nature. However, it is important to know the possible consequences of such actions. North Carolina is a one-party consent state. Meaning, that at least one party must consent to the recording of a conversation. Thus, if a conversation is recorded where neither party is aware and has not consented, the recording is a crime. A person is guilty of a Class H felony if they do any of the following without the consent of at least one party to the communication:
(1) Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.
(2) Willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
(3) Willfully discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through violation of this Article; or
(4) Willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Article.
(b) It is not unlawful under this Article for any person to:
(1) Intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the public;
(2) Intercept any radio communication which is transmitted:
(3) Intercept any communication in a manner otherwise allowed by Chapter 119 of the United States Code.
NCGS § 15A-287.
Based on the language of the statute, to be guilty of wiretapping, the communication and interception must be willful on behalf of the charged party. It is important to note that the key word throughout this statute is willfully. Thus, the actions must be deliberated, intentional or conscious. At Rosensteel Fleishman, we understand that sometimes you can be placed in situations that you may not fully understand or be aware of. If you have been criminally charged for wiretapping or a similar crime, contact our office at (704) 704-1450 to schedule a free consultation with one of our experienced criminal defense attorneys.