What is Eavesdropping in New York?

Eavesdropping refers to unlawful monitoring of others’ communications. For example, hacking into an email account can be considered eavesdropping, as can installing video cameras in places where individuals have a reasonable expectation of privacy, such as a clothing store fitting room.

Eavesdropping in the form of recording individuals without their knowledge is easier than ever now that most people carry around a cell phone with both audio and video recording capabilities.

Sometimes, the recording may be done with relatively benign intent, such as playing a prank on a friend. However, care must be taken in doing any such recording as it may qualify as criminal eavesdropping.

Can security video cameras be considered criminal eavesdropping?

Also relatively new to modern society is the advent of security video cameras in stores, outside stores recording the sidewalk, at traffic lights, and the like. However, these would not be considered criminal eavesdropping as there is no reasonable expectation of privacy while walking outdoors on a sidewalk or browsing inside a store.

The offense may be of particular concern for parents of college students as it’s not uncommon for students to be in various stages of amorous physical activities and drinking alcohol among large groups of friends.

Combined with a cell phone’s video and audio camera, we’ve seen enough news stories of students being recorded in private situations without their knowledge or consent. College-age students might not realize that this behavior can amount to criminal behavior, so this is an area that parents would be wise to discuss with their children.

When and where an individual may or may not have a reasonable expectation of privacy?

Further, we tend to not go long without seeing a video of the commission of a crime or a private citizen’s bad behavior that a bystander recorded with their phone. In general, these videos capture activity that takes place where there would be no reasonable expectation of privacy. But, when and where an individual may or may not have a reasonable expectation of privacy can be subjective.

Most would agree that a restroom in a restaurant is a place where one would have a reasonable expectation of privacy. However, a scenario like individuals camping in a tent with sheer netting panels might be a closer question.

What law defines Eavesdropping in New York?

Eavesdropping 

Under New York State law, Article 250 of the Penal Code defines eavesdropping and related offenses. Section 250.05 defines eavesdropping, a class E felony, as illegally recording or listening to another’s communications.

Section 250.05 details the elements of the crime that must be proven in order for prosecutors to secure a conviction. Let’s consider the text of this section, its precise language, and what it means.

• Section 250.05 Eavesdropping

A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of electronic communication.

Eavesdropping is a class E felony.

Elements

• The first element requires that the monitoring be done illegally. As such, communications intercepted via a lawful warrant would not be considered eavesdropping.  As discussed above, recording activities or communications may not be illegal if it’s done in the course of carrying out a warrant, or where individuals would not have a reasonable expectation of privacy, such as a restaurant dining room.
• In addition, the next element sets out the core acts that constitute eavesdropping: obtaining communications, whether it be through hacking electronics, recording another party’s communications, or securing access to those communications before they reach their intended recipient.

Divulging an Eavesdropping Warrant

Section 250.20 defines divulging an eavesdropping, a class A misdemeanor, as having information regarding information gathered surrounding a lawful warrant and shares that information with another individual, subject to four exceptions.

Section 250.20 details the elements of the crime that must be proven in order for prosecutors to secure a conviction. Let’s consider the text of this section, its precise language, and what it means.

• Section 250.20 Divulging an eavesdropping warrant.

A person is guilty of divulging an eavesdropping warrant when, possessing information concerning the existence or content of an eavesdropping warrant issued pursuant to article seven hundred of the criminal procedure law, or concerning any circumstances attending an application for such a warrant, he discloses such information to another person.

Except that such disclosure is not criminal or unlawful when permitted by section 700.65 of the criminal procedure law or when made to a state or federal agency specifically authorized by law to receive reports concerning eavesdropping warrants, or when made in a legal proceeding, or to a law enforcement officer or agency connected with the application for such warrant, or to a legislative committee or temporary state commission, or to the telephone or telegraph corporation whose facilities are involved, or to any entity operating an electronic communications service whose facilities are involved.

Divulging an eavesdropping warrant is a class A misdemeanor.

Elements

• The first element requires that an individual have information regarding a lawful warrant or regarding the application for a warrant. Note that should an individual come upon information that is related to a type of document other than a lawful warrant or warrant application, they are unlikely to be convicted for violating the above statute.
• The second element required here calls for the individual to share warrant-related information with another individual. Consider that a person coming upon such information which keeps it to themselves may not be criminally liable under this law.

Liability under this statute is removed if a defendant’s conduct falls within one of four exceptions. The language of the law, where it lays out the exceptions, includes the word “or” after each exception. This is important because it means that anyone of the detailed exceptions is sufficient to excuse the charged individual from conviction, not all of them.

Those exceptions begin with circumstances in which the disclosure of warrant-related information is allowed under the provisions of Section 700.65 of the criminal procedure law. Taking a look at that statute, it allows sharing warrant information in four scenarios.

• First, a law enforcement officer who knows of information via interception or video surveillance may share this information with another officer as long as sharing the information is in line with performing the duties of either officer.
• Second, an officer who possesses information regarding intercepted communication or video surveillance, the officer can use that information, provided that its use is appropriate to the performance of his duties.
• Third, any individual who has authorized possession of information regarding communications or video surveillance can share that information while giving testimony under oath in a criminal case or grand jury proceedings, so long as the information has not excluded or suppressed the information.
• Lastly, if an officer who intercepts communications or conducts video surveillance via authorized methods, makes an observation that wasn’t sought and is evidence of a crime, the officer may share the information.

Returning to Section 250.20, further exemptions to the prohibition of disclosing warrant-related information include:

• If the shared information is provided to a government agency lawfully permitted to receive it; or
• If the shared information is disclosed in a legal proceeding or to a law enforcement officer or agency related to the warrant; or
• If the shared information is given to a legislative committee, temporary state commission, or any entity whose facilities are used to transfer the information.

Consider the policy behind criminalizing divulging an eavesdropping warrant. Why would lawmakers make this conduct illegal? How does society benefit? The reason is similar to why law enforcement takes great care to avoid revealing the existence of a criminal investigation: it may tip off the parties under investigation and cause them to stop or change their conduct in a way that makes catching criminals more difficult.

If a mafia boss is told that his phone has been wiretapped by law enforcement, he may simply stop using that particular line, stop using phones in general, or get a new number. This means that law enforcement professionals have a harder time gathering evidence against the mafia boss.

Possession of Eavesdropping Devices

Section 250.10 defines possession of eavesdropping devices, a class A misdemeanor, as, with intent to use illegally, a defendant has any equipment meant for overhearing communications. Taking a closer look at the letter of the law will help understand its meaning.

• Section 250.10 Possession of eavesdropping devices.

A person is guilty of possession of eavesdropping devices when, under the circumstances evincing an intent to use or to permit the same to be used in violation of section 250.05, he possesses any instrument, device or equipment designed for, adapted to or commonly used in wiretapping or mechanical overhearing of a conversation.

Possession of eavesdropping devices is a class A misdemeanor.

Elements

• The first element required for conviction under the statute above requires that a defendant possess any equipment intended for use in recording or overhearing communications. The possession must be in violation of Section 250.05, which prohibits unauthorized access to, or recording of communications.

What are some related crimes?

Under certain circumstances, various charges similar or related to eavesdropping may be brought in addition to that charge, or instead of it, depending on the situation. Keep in mind that whether the charges filed are the least severe option, or the most severe, can be up to the police officer. Let’s consider an example.

Unlawful Surveillance in the First Degree

Section 250.50 details the legal definition, and elements required for conviction, of unlawful surveillance in the first degree, as

• Section  250.50 Unlawful surveillance in the first degree.

A person is guilty of unlawful surveillance in the first degree when he or she commits the crime of unlawful surveillance in the second degree and has been previously convicted within the past ten years of unlawful surveillance in the first or second degree.

Unlawful surveillance in the first degree is a class D felony.

Elements

• The first element that prosecutors must prove in order to secure the conviction of a defendant for unlawful surveillance in the first degree is committing unlawful surveillance in the second degree. This means, according to Section 250.45, engaging in behavior that satisfies any of the following scenarios:
• Intentionally installing or recording a person in various states of undress, when that person has a reasonable expectation of privacy and does not knot about the recording, which is done for the defendant’s amusement or debasement of another; or
• Intentionally installing or using an imaging device to secretly view or broadcast a person in various states of undress, when that person has a reasonable expectation of privacy and does not know about the recording, which is done for the defendant’s or another’s sexual gratification; or
• Intentionally using or installing an imaging device to secretly view or broadcast an individual in a bedroom, changing room, fitting room, restroom, or any hotel room, for no legitimate purpose and without the person’s permission
• Intentionally using or installing an imaging device to secretly view or broadcast a person in various states of undress, without the knowledge or consent of that person; or
• For theirs or another’s entertainment or profit, or for degrading an individual, intentionally installing or using an imaging device to secretly view or broadcast the individual in such a way that the individual can be identified engaging in sexual conduct, in various states of undress, and in a situation when the individual has a reasonable expectation of privacy and without the individual’s knowledge or consent.

What are the statutory penalties if you are convicted of this crime? 

The offenses above are categorized by their severity. Felony and misdemeanor classes each carry their own sentencing range. New York’s statutes detail these sentences, which range from no time in prison to life sentences. When considering sentencing ranges, remember that many factors may come into play, such as prior convictions, persistent offender status, and youthful offender status.

For example, a Class A misdemeanor is an offense other than a traffic violation and carries a sentence of no prison time or a prison term-limited to 15 days to a full year. The sentence for a Class D non-violent felony can be anything from no prison time to probation, or one to seven years in prison while a Class D violent felony can result in two to seven years in prison.

What are some of the additional consequences of being convicted? 

Regardless of the sentence given by a court, a conviction may cost additional consequences.

• Professional consequences can include loss of licenses, reputational damage, and financial costs to associated companies. A conviction may also make finding a job or housing more difficult, and require a fight in court that may be costly, both personally and financially.
• Convictions may appear in all manner of routine background checks for things as innocuous as opening a bank account or credit card. It’s essential to take all possible action to avoid a conviction to protect your future opportunities, as well as your family’s.
• If you think about how many times you fill out forms that ask whether you’ve ever – ever  – been convicted of a felony, the import of doing all that you possibly can to avoid such a conviction becomes clear; In addition, felony convictions can have disruptive effects on your voting rights.
• A conviction for criminal eavesdropping may be particularly problematic if an individual is seeking employment in a position of public trust, such as law enforcement or teaching. It may also suggest some employers a general lack of dishonesty and make employment at institutions like financial institutions or law practice quite difficult.

In addition, if the criminal eavesdropping involves the recording by a male of a female in various states of undress for entertainment purposes, this can be considered a signal of possible sexual predation that may worsen over time or evidence generally inappropriate behavior towards women that may cause a shop that serves primarily women unwilling to hire someone with this type of conviction.

What are some defenses to Eavesdropping in New York? 

There are powerful tools you and your attorney can use to fight charges in court. An affirmative defense is spelled out in the criminal statute. To successfully win with an affirmative defense, the defendant has the burden to prove that the defense is available to them, by a preponderance of the evidence.

When non-affirmative defenses are raised, the burden is on the prosecution to prove beyond a reasonable doubt that the defense does not apply to the defendant.

• Defenses that may be available to the charges described above include justification, which is essentially a claim that eavesdropping was necessary because an emergency situation developed such that the eavesdropping was justified to prevent immediate public or private injury, which emergency developed by no fault of the defendant.

The justification defense reflects the recognition that there are times when circumstances emerge to create a situation in which a defendant may not realistically have full control over their options.

• Infancy may be another available defense. This defense is available to those under 18 years of age as a means to potentially shield them from criminal liability. This defense depends heavily on the circumstances of the case and specific facts as minors are not automatically relieved of responsibility for their actions.

This defense reflects the general policy that minors may lack the understanding to know how their actions are wrong, or illegal. It also considers that courts may take a different approach to minors so as to minimize damage to their future options if the crime is sufficiently minor. Duress may be an effective defense as well. The presence of duress may remove responsibility for the commission of a crime as the defendant’s actions may not be their own.

• In terms of mounting an effective defense, note that many statutes require that the defendant knew about the problematic actions. Proving this can be difficult as it can be seen as trying to “read minds.” While the defendant’s knowing may be explicitly stated or otherwise determined, it can be quite elusive to establish without an explicit statement by the defendant.

This may be a defense angle worth raising with your attorney and exploring how you can prevent prosecutors from proving this requirement. An experienced and effective criminal defense attorney should be able to work with you on establishing doubt regarding this element.

Help is Available 

Facing any of the charges discussed above requires the assistance of a knowledgeable attorney who can help you navigate the various processes involved in the legal process. It’s crucial to engage an experienced criminal defense lawyer as soon as possible to ensure your rights are protected, and your case receives the best outcome possible.

In addition to having knowledge of the law itself, lawyers are often familiar with judges in their area and know their varying attitudes and demeanors. This can help the lawyer craft their strategy in such a way that would most appeal to the assigned judge’s personality.

Eliminating or minimizing any charges or sentencing is possible and well worth placing the call. Contact us to review your situation with an experienced legal professional who can help you take charge of your situation and guide your way forward.