Inadvertent Recording Of Calls On Police Line Does Not Violate Wiretap Laws

Inadvertent Recording Of Calls On Police Line Does Not Violate Wiretap Laws

Written on 09/29/2020
Will Aitchison

In November 2016, the Grand Rapids Police Department dispatched an officer to a car accident site. The driver of the car, a Kent County assistant prosecutor, drove down a one-way street and struck a parked car. The on-scene officer called Lieutenant Matthew Janiskee on a recorded, public line – Line 3604 – and explained the accident; Janiskee responded that the officer should hang up and call him on a non-public line – Line 3407 – that the officers understood to be unrecorded. The officer hung up and called Janiskee on Line 3407; five conversations took place on that line.

One month later, the Police Department investigated the car accident and the officers’ handling of it. Based on the recorded Line 3604 phone call, the Department sought information about the five subsequent phone calls placed on Line 3407 and found that the Line 3407 calls had also been recorded. It learned that phone calls made on Line 3407 had been inadvertently recorded for at least two years, starting on February 21, 2014, and that a database for those recordings had been created on September 27, 2013. The Department did not, however, find a single City employee or witness who was aware Line 3407 was being recorded throughout that time.

The Police Department sought legal advice and decided to use the recorded phone calls as part of its internal investigation of the officers’ handling of the accident. Following the investigation, it terminated Janiskee on March 31, 2017.

The City filed a federal court lawsuit seeking a declaratory judgment that the five recorded phone calls on Line 3407 were not obtained in violation of the Electronic Communications Privacy Act (the Federal Wiretap Act). Janiskee filed counterclaims, alleging that by recording Line 3407, the City violated state and federal wiretap laws, his Fourth Amendment rights, and state common law rights regarding invasion of privacy.

The main question for the federal Sixth Circuit Court of Appeals was whether the inadvertent recording of Line 3407 violated federal or state wiretapping statutes. The Court found that it did not, reasoning that both statutes required intentional or willful conduct. For example, the Federal Wiretap Act subjects to criminal sanction anyone who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” The state law prohibits “willfully using any device to eavesdrop upon a private conversation without the consent of all parties thereto.”

The Court noted that “the evidence revealed that, when CDW implemented the Cisco telephone system in 2010, it configured Line 3407 not to record telephone calls, and independent contractors and CDW employees tested and confirmed that the line would not record. The City subsequently hired IT subcontractors to make upgrades to the system, including switching to a virtualized system in 2013. That change may have allowed for human error in reconfiguring telephone settings. No City or Police Department employee testified that he or she knew or was aware that the Cisco system was recording phone calls on Line 3407 until December 7, 2016, when the Police Department investigated its officers’ handling of the car accident. The record supports the district court’s finding that the City recorded the phone calls inadvertently.”

City of Grand Rapids v. Grand Rapids POA, 2020 WL 3057409 (6th Cir. 2020).

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