[Congressional Record Volume 145, Number 50 (Tuesday, April 13, 1999)]
[Senate]
[Page S3642]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN:
  S. 781. A bill to amend section 2511 of title 18, United States Code, 
to revise the consent exception to the prohibition on the interception 
of oral, wire, or electronic communications that is applicable to 
telephone communications; to the Committee on the Judiciary.


                     Telephone Privacy Act of 1999

  Mrs. FEINSTEIN. Mr. President, I am pleased to introduce today the 
``Telephone Privacy Act of 1999.'' This legislation would prohibit the 
recording of a telephone call unless all the parties on the call have 
given their consent.
  I am introducing this bill because our nation's telephone privacy 
laws are confused and in conflict. We need a national law governing 
telephone privacy so that telephone users have a uniform standard to 
rely on.
  Currently, thirty-seven states require only the consent of one party 
to record a phone call. Fifteen states require the consent of all 
parties to be taped. This jumbled collection of telephone privacy laws 
leaves most consumers confused about their rights to protect their 
phone calls from surreptitious taping.
  Today, consumers who seek to block surreptitious taping of their 
phone calls face an incredible burden. The problem is especially acute 
during interstate calls because the legality of surreptitiously 
recording a phone call depends on the state where the call is recorded. 
Thus, when a party makes an interstate call, one's rights may depend on 
the laws governing taping in other states.
  The recent well-publicized taping of Monica Lewinsky's phone 
conversations by Linda Tripp illustrates this problem. Maryland, where 
Linda Tripp recorded the conversations, is a state that requires the 
consent of all parties. However, Washington D.C., where Monica Lewinsky 
lived at the time, requires only one-party consent. Two people living 
within a half-hours drive from each other should have the same laws 
apply to them.
  In practice, any person who wants to protect herself against 
surreptitious recording must know the telephone privacy laws of other 
states. Our laws cannot reasonably expect a consumer to have this 
knowledge. People who make lots of interstate calls might be forced 
into the position of knowing the telephone privacy laws of all 50 
states.
  Not only will the Telephone Privacy Act of 1999 promote uniformity of 
laws, it will also create a standard that better protects privacy. The 
Telephone Privacy Act would require an all-party consent standard for 
taping phone calls no matter where one lived in the United States. It 
would end the practice of one-party consent that exists under Federal 
law and in a number of states.
  While surreptitious taping has legitimate uses, such as lawful 
surveillance by the police, our laws should not reward the practice of 
surreptitious taping. This practice violates individual privacy and 
offends common decency.
  Phone calls remain one of the few avenues of communication where 
people still feel safe enough to have intimate conversations. We should 
protect this expectation of privacy. If a telephone user intends to 
tape a phone call, the other party on the line ought to be informed.
  Moreover, the one-party consent standard is an anachronism. It is 
inconsistent with other more privacy-respecting provisions of our 
communication laws. Federal law makes it a felony, for example, for a 
third party to tap or record a telephone conversation between others. 
It is also a felony to surreptitiously tape a cellular telephone call.
  The bill has been carefully drafted so that it does not affect the 
rights of law enforcement officials to tape or monitor conversations as 
they are carrying out their duties.
  Nor does it affect the practice of businesses taping customer calls, 
as long as the customer is notified at the outset that the call is 
being taped. It also does not affect the right of people to 
surreptitiously tape threatening or harassing phone calls.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 781

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Telephone Privacy Act of 
     1999''.

     SEC. 2. REVISION OF CONSENT EXCEPTION TO PROHIBITION ON 
                   INTERCEPTION OF ORAL, WIRE, OR ELECTRONIC 
                   COMMUNICATIONS APPLICABLE TO TELEPHONE 
                   COMMUNICATIONS.

       Paragraph (d) of section 2511(2) of title 18, United States 
     Code, is amended by striking ``unless such communication'' 
     and all that follows and inserting ``unless--
       ``(i) such communication is intercepted for the purpose of 
     committing any criminal or tortious act in violation of the 
     Constutition or laws of the United States or of any State; or
       ``(ii) in the case of a telephone communication, any other 
     party to such communication has not given prior consent to 
     such interception.''.
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