court found that there was no exception for a prisoner’s
expectation of privacy. Id. at 638.
Except as specifically provided in the Act, it is a third
degree crime to purposely intercept, endeavor to
intercept, or procure another to intercept any wire,
electronic or oral communication, or to purposely
disclose or use, or endeavor to disclose or use, the contents
of any wire, electronic, or oral communication, or
evidence derived therefrom, with knowledge or having
reason to know, that the information was obtained
through an interception of a wire, electronic or oral
communication. N.J.S.A. 2A:156A-3. Disclosure or use
of the contents of a communication, or evidence derived
therefrom, that was common knowledge or public
information, would not apply. Id.
VI. EXCEPTIONS TO UNLAWFUL ELEC-
TRONIC SURVEILLANCES (N.J.S.A. 2A:156A-4)
A. Construction
Because the federal and state constitutions protect an
individual’s right of privacy and the Legislature has
prescribed an all-inclusive safeguard against wiretaps, it
is proper to require that the State fully comply with the
conditions under which an exception to the general
prohibition may be permitted. In re Wire
Communication, 76 N.J. 255, 261-62 (1978).
B. Exceptions
- Communications intercepted by a provider of
electronic or wire service which is necessary and
incidental to its rendition of service are not subject to the
Act. See N.J.S.A. 2A:156A-4a; State v. Droutman, 143
N.J. Super. 322, 333 (Law Div. 1976). For instance, in
State v. Pemberthy, 224 N.J. Super. 280, 294-96 (App.
Div.), certif. denied, 111 N.J. 633 (1988), it was held that
where the defendant used a “blue box” enabling him to
make long distance telephone calls thereby bypassing
normal billing procedures, the telephone company’s
interception of the line would not result in the
suppression of evidence absent State action; in order to
protect the telephone company’s property rights, the
provider may intercept, disclose, or use the communica-
tion. - Consensual interceptions, i.e., prior consent by a
party to the communication, are exempted from the
provisions of the Act. State v. Anepete, 145 N.J. Super. 22,
25-26 (App. Div. 1976); see also Scott v. Scott, 277 N.J.
Super. 601, 609-610 (Ch. Div. 1994). It is unlawful and
a violation of the Act, however, to record telephone
conversations of others, including one’s spouse without
their consent, when the other spouse or the person
tapping the conversation is not a party to the
conversation. State v. Lane, 279 N.J. Super. 209, 218
(App. Div.), certif. denied, 141 N.J. 94 (1995); see also
Scott v. Scott, 277 N.J. Super. at 608-609 (no family status
exemption for secretive wiretapping by spouse); M.G. v.
J.C., 254 N.J. Super. 470, 478-79 (Ch. Div. 1991) (no
marital exemption for secretive wiretapping by spouse).However, in State v. Diaz, 308 N.J. Super. 504, 516
(App. Div. 1998), the court held that N.J.S.A. 2A:156A-
4d incorporated the theory of vicarious consent. Thus,
the parents of a minor child could consent on their child’s
behalf to videotape and make a sound recording of a
babysitter who was suspected of abusing their daughter.
Id. Accordingly, both the video and sound portions of the
tape were admissible. Id.; see also Cacciarelli v. Boniface,
325 N.J. Super. 133, 135-44 (Ch. Div. 1999) (father
could vicariously consent to recordings of conversations
between mother and children where there were
allegations of verbal and mental abuse arising out of a
custody battle).The conditions for authorization of consensual
wiretaps are not as strict as those applicable to
nonconsensual wiretaps. State v. Worthy, 141 N.J. 368,
381-82 (1995); see also State v. Bisaccia, 251 N.J. Super.
508, 512 (Law Div. 1991).a. Where the consenting party acts at the direction
of a law enforcement officer, the only condition imposed
by the Act is that the Attorney General, his designee, or
county prosecutor, or his designee, must give prior
approval. N.J.S.A. 2A:156A-4c. In 1999, the
Legislature removed the requirement that was formerly
imposed by statute and by case law that the Attorney
General or the county prosecutor determine that there
exists a reasonable suspicion that evidence of criminal
conduct will be derived from such interception. Cf. State
v. Parisi, 181 N.J. Super. 117, 119-20 (App. Div. 1981);
State v. Schultz, 176 N.J. Super. 65, 67 (App. Div. 1980).Although N.J.S.A. 2A:156A-8 requires that there be
authorization in writing for a wiretap application, there
is no similar requirement for authorization for a
consensual interception. See State v. Bisaccia, 251 N.J.
Super. at 512; State v. Parisi, 181 N.J. Super. at 120; see
also State v. Laurence, 259 N.J. Super. 225, 233 (Law Div.
1992) (oral approval of forms authorizing consensual
interception of conversations does not invalidate
approval). Pursuant to Laurence, consent forms and