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Laura W. Morgan, Esquire VICARIOUS CONSENT TO WIRETAPPING: Can a parent vicariously consent on behalf of a child to the wiretapping of conversations between that child and another person? Well, it depends on what state you live in. In Thompson v. Dulaney, 838 F. Supp. 1535 (D. Utah 1993), the mother taped telephone conversations between the children and their father. The court held that the mother had the right to vicariously consent to the wiretap on behalf of her children under 18 U.S.C.A. § 2511(2)(d). Accord Anonymous v. Anonymous, 558 F.2d 677 (2d Cir. 1977); Scheible v. Grant, 22 F.3d 149 (7th Cir. 1994); Newcomb v. Ingle, 944 F.2d 1534 (10th Cir. 1991); Silas v. Silas, 680 So. 2d 368 (Ala. Civ. App. 1996); Wright v. Stanley, 700 So. 2d 274, reh. den. 700 So. 2d 331 (Miss. 1997). On the other hand, in West Virginia Department of Health and Human Resources ex rel. Wright v. David L. , the court held that a parent cannot give such vicarious consent. Accord People v. Dunham, 157 Misc. 2d 289, 596 N.Y.S.2d 289 (1993); State v. Shaw, 103 N.C. App. 26, 404 S.E.2d 887 (1991). A new case has now weighed in the side of disallowing such vicarious consent. In Williams v. Williams, Mich. Ct. App. No. 197780, decided April 14, 1998, the court held if it had been the intent of Congress to provide a safe harbor from liability for parents recording their children's telephone conversations, it could have easily done so. Because the wiretapping act specifically provides that any exceptions to its prohibitions are specifically stated, there can be no exception for parents.
Laura W. Morgan is a Senior Attorney in Family Law at the National Legal Research Group, in Charlottesville, Virginia, a firm that writes memoranda and briefs for attorneys nationwide. Ms. Morgan is the author of "Child Support Guidelines: Interpretation and Application," and is currently Chair of the Child Support Committee of the American Bar Association Family Law Section. She can be reached at: goddess@supportguidelines.com, or phone 1-800-727-6574 or 1-804-977-5690
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