Letter of the Law

by Marla J. Franklin

While talking to your accountant on your cellular telephone, you disclose certain information regarding the financial status of your business. Months later, your former business partner discloses that he taped your conversation with the accountant.

He plans to file a lawsuit against you and present the tape as evidence that the profits of the business were unevenly divided. Was it illegal for your business partner to intercept and tape your cellular conversation?

Surprisingly, the answer may depend on the type of phone your accountant was using during your conversation.

Cellular telephones transmit and receive conversations via radio signals to and from a transmitter. Some commercial scanners, mainly those manufactured prior to 1994, receive cellular frequencies and are able to intercept cellular conversations as they occur.

This has led to an increasing concern over the privacy of a cellular telephone call and a close evaluation of Missouri's Wiretap Act.

The Missouri General Assembly enacted the state's first Wiretap Act in 1989, modeling it after the federal wiretap

statutes enacted in 1968. It is a felony, under the terms of the Missouri act, for any person to knowingly intercept or attempt to intercept any wire or oral communication.

Of note is that the federal wiretap statutes were amended in 1986 to prohibit the interception of not only a wire or oral communication, but also an electronic communication, which, by its definition, includes cellular communications. To date, the Missouri act has not been amended to include this definition.

In 1994, the Missouri Court of Appeals considered the provisions of the Missouri act as they applied to a cordless (not cellular) telephone conversation in a criminal case involving the possession of a controlled substance.

In this case, the defendant's neighbor was listening to her police scanner radio when she overheard the defendant, on his cordless telephone, arranging to buy marijuana for resale. She advised the highway patrol of the details of the defendant's plan.

Upon a search of the defendant's vehicle, the officers found a syringe of methamphetamine. The defendant was subsequently convicted for possession of a controlled substance.

On appeal, the defendant argued that his cordless telephone conversation was illegally intercepted in violation of the Missouri Wiretap Act.

Because a cordless telephone communication is accomplished by a radio broadcast rather than a wire or cable connection, the court held that a cordless telephone conversation was excluded from the definition of a wire communication under the Missouri act.

The court also held that a cordless telephone conversation is excluded from the definition of an oral communication because the cordless telephone user has no reasonable expectation of privacy in a communication which is "broadcast by radio in all directions" to be overheard by persons using a receiving device tuned to the same frequency.

As cellular telephones also transmit conversations through the use of radio signals, it would seem to follow that such conversations are unprotected by the Missouri act.

However, in a very recent case, the Missouri Court of Appeals provided an interesting twist in its interpretation of the act. The court held that cellular conversations may be protected in certain situations.

The facts of the case indicated that the plaintiff intercepted the defendant's telephone conversations with a third party, by means of a scanner, and sought to introduce tapes of the telephone conversations into evidence.

During the telephone conversations, at least one of the parties was using a regular wire telephone. The court held that the conversations fit within the act's definition of wire communications because they were made "in part" by the aid of a wire connection.

The conversations were deemed protected under the Missouri Wiretap Act, and tapes of the conversations were not allowed into evidence. The court did not rule on conversations between two cellular users or a cellular user and a cordless telephone user.

This case is important because the court took a substantial step in protecting the cellular user's right to privacy.

(Marla J. Franklin is a practicing attorney with the Springfield law firm of Miller & Sanford. Information and opinions expressed in the "Letter of the Law" column should not be construed as legal advice. For counseling on specific legal situations, please consult an attorney.)

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