39-13-604 - Interception of cellular or cordless telephone transmissions. - Tennessee Statutes

39-13-604. Interception of cellular or cordless telephone transmissions.

(a)  As used in this section, unless the context otherwise requires:

     (1)  “Cellular radio telephone” means a wireless telephone authorized by the federal communications commission to operate in the frequency bandwidth reserved for cellular radio telephones;

     (2)  “Communication” includes, but is not limited to, communications transmitted by voice, data, or image, including facsimile;

     (3)  “Cordless telephone” means a two-way, low power communication system consisting of two (2) parts, a “base” unit that connects to the public switched telephone network and a handset or “remote” unit, that are connected by a radio link and authorized by the federal communications commission to operate in the frequency bandwidths reserved for cordless telephones;

     (4)  “Disseminating,” as used in this section and § 39-13-605, means the playing or duplicating of the recording in a manner other than authorized in this part; and

     (5)  “Party” means only those individuals who participate in a conversation and whose presence as participants is known to all other participants.

(b)  (1)  A person commits an offense who, without the consent of at least one (1) party to a communication, intentionally records or disseminates a communication transmitted between two (2) cellular radio telephones, a cellular radio telephone and a landline telephone, or a cordless telephone and a cellular radio telephone.

     (2)  A person commits an offense who intentionally disseminates a communication transmitted between two (2) cordless telephones or a cordless telephone and a landline telephone, if such dissemination is not authorized by a court order.

(c)  (1)  A violation of subsection (b) is a Class A misdemeanor.

     (2)  A violation of subsection (b) is a Class E felony, if the defendant knowingly publishes, distributes or otherwise disseminates to another the intercepted or recorded communication.

(d)  This section does not apply to the following:

     (1)  Any public utility or wireless communications provider engaged in the business of providing communications services and facilities, or to the officers, employees, or agents thereof, where the acts otherwise prohibited are for the purpose of construction, maintenance, conduct, technological research, or operation of the services and facilities of the public utility;

     (2)  The use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of the public utility; and

     (3)  Any telephonic communication system used for communication exclusively within a state, county or municipal correctional facility.

(e)  The judge of a court of record having domestic relations jurisdiction may authorize any individual to intercept, record, disseminate and use communications that would otherwise be prohibited by this section and § 39-13-605, upon an ex parte showing by the investigator that there is probable cause to believe that the health, safety and welfare of a minor are in jeopardy.

(f)  (1)  A law enforcement officer or other person with judicial purview, while in the course of the person's employment, may record a protected communication, where preservation and retention of the recorded communication are pertinent to a criminal investigation; provided, that the officer follows the procedure set out in this subsection (f).

     (2)  When an officer or other authorized person records a protected communication, the officer or other authorized person shall label each recording with the following information:

          (A)  The name of the officer or other authorized person making the recording; and

          (B)  The date and time the recording is made.

     (3)  Within forty-eight (48) hours of a law enforcement officer or other authorized person recording a protected communication, the officer or other authorized person shall apply to a judge authorized to issue a search warrant for an order authorizing continued recording and preservation and retention of the recordings already made. No dissemination or duplication of the recording shall be made prior to the receipt of a court order.

     (4)  The officer or other authorized person shall certify to the judge in a written application under oath that the recording is pertinent to a criminal investigation, the nature of the offense under investigation, and the address, if known, of the location of the cordless or cellular telephone communication intercepted.

     (5)  If the judge finds that the information contained in the officer's or other authorized person's written application complies with the provisions of subdivision (f)(4), the judge shall issue a court order authorizing the preservation, retention or continued recording of protected communications. The order shall include the date and time of the recording, the nature of the crime under investigation, and the address, if known, of the location of the cordless or cellular telephone intercepted. An application and order under this section shall be sealed, unless otherwise ordered by the court. Custody of the sealed application and order shall be wherever the judge directs.

     (6)  If no application for an order is made authorizing the preservation and retention of recorded protected communications within the forty-eight hour period, or if the officer or other authorized person does not comply with the provisions of subdivision (f)(4), the recording shall be destroyed.

     (7)  No recording of a protected communication, or any information contained in the recording, may be used as evidence, unless the recording was obtained in accordance with the provisions of this section; provided, that nothing in this section shall be construed to preclude the introduction of evidence derived independently from sources other than the recording.

(g)  A judge vested with the authority to issue an order permitting recordation of cellular or cordless telephone conversations as provided in this section may permit other individuals to record and disseminate recordings of such protected communications upon a sworn petition by a licensed cordless or cellular telephone agency or other private individual showing probable cause that a felony has been or is about to be committed. The court issuing the order shall determine in the order the length of time that recording shall be permitted and shall likewise order the final disposition of all recordings taken pursuant to this section.

[Acts 1994, ch. 970, §§ 1, 4.]