Tricks of the Trade
by Private Investigator Michael T. O'Rourke

Question: I am a Paralegal with a Family Law Attorney. Our client discovered a voice activated recorder connected to a spare telephone jack in one of the children’s bedrooms. It appears her husband has been taping phone calls for an unknown period of time. Could you provide me with some basic information regarding wiretapping?

Answer: Del. Code Ann. Title 11, sec. 2402(c)(4) (1999): Delaware's wiretapping and surveillance law specifically allows an individual to "intercept" (defined as acquiring the contents of a communication through a mechanical device) any wire, oral or electronic communication to which the individual is a party, or a communication in which any one of the parties has given prior consent, so long as the communication is not intercepted with a criminal or tortious intent.

However, another Delaware privacy law makes it illegal to intercept "without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation. Del. Code Ann. Title 11, § 1335(a)(4). The wiretapping law is much more recent, and at least one federal court has held that, even under the privacy law, an individual can record his own conversations. United States v. Vespe, 389 F. Supp. 1359 (1975).

Under the wiretapping law, communications intercepted illegally, or the disclosure of the contents of illegally recorded communications, can result in prosecution for a felony and a fine of up to $10,000. Del. Code Ann. tit 11, § 2402 (b) (1999). Civil liability also can be imposed in the amount of actual damages or a fine of $100 a day for each day of violation or $1,000, whichever is more, along with punitive damages, attorney fees and litigation costs. Del. Code Ann. Title 11, § 2409 (1999).

Installing a camera or other recording device "in any private place, without consent of the person or persons entitled to privacy there" is a misdemeanor, and under a 1999 amendment, the use of hidden cameras to record individuals dressing or undressing in a private place is a felony. Del. Code Ann. tit. 11, § 1335(2), (6) (1999)

Wiretapping is the preferred method of obtaining intelligence (for quality reasons), it involves tying in to a wire or other conductor that is used for communications. This wire can be a telephone line, a PBX cable, a local area network, a CCTV video system, an alarm system, or any other communications medium. The goal in a wiretapping is to secure high quality information, and to minimize the possibility of the eavesdropping being.

Wiretaps are broken into four primary categories (Hardwired, Soft, Record, and Transmit).

A Hardwired Wiretap, is when physical access is gained to a section of wire that the signal (ie: telephone line) travels on. A second set of wires is attached (normally through the use of an isolation or slave device), the signal is then bridged back to a secure location. This type of wiretap when discovered is fairly easy to trace back to the listening post. This type of wiretap is very popular with the police, but is usually outside the scope of most eavesdroppers. If the eavesdropper is using a "slave" or similar isolation device on a telephone the tap will be virtually impossible for anybody except a high trained or properly equipped "bug sweep" professional to find.

A Soft Wiretap, is a modification to the software used to run the phone system. This can be done at the telephone company, or in the case of a business, the PBX. A soft wiretap is a preferred method to tap a phone, easy to catch on a PBX, but tougher to find in the phone company's system. It is sometimes called a REMOBS (REMote OBServation), DATU, ESS, or translation tap. This type of tap is very popular with large law enforcement agencies, intelligence agencies, larger corporations, and with hackers who find it quite simple to gain access via maintenance software. This type of tap is actually very simple to find, but does require completely un-restricted access to the inner workings on the phone companies computers (which is very tough to obtain).

A Record Wiretap, is nothing more than a tape recorder wired into the phone line, very easy to find on a TSCM inspection. Similar to a hardwired wiretap, but the tapes must be changed on a regular basis. This is very, very popular with amateur spies, but they are very dangerous to use, and many eavesdroppers have been caught red-handed when they showed up to service their illicit recorder.

A Transmit Wiretap, is an RF transmitter (or "Bug") connected to a wire (often containing a microphone itself). This type of tap is very popular, however; the RF energy it produces radically increases the chance that it will be detected by a competent "Bug Sweeping" specialist. Bugs are extremely difficult to detect (if properly installed), require a very high level of technical expertise, and a great deal of equipment to locate. It is virtually impossible to detect most wiretaps with any spyshop toys, bug detectors, and other such gizmo's. Instead the TSCM specialist has to use highly sophisticated laboratory grade instruments, and perform hundreds of highly sensitive measurements.

Det. Michael T. O'Rourke is a Member of the National Association of Investigative Specialists, The National Association of Professional Process Servers, and Sustaining member of the Delaware Paralegal Association. A Court Certified Special Process Server, and a Licensed Private Investigator,

Michael specializes in Insurance Defense and Criminal Defense. He invites your questions to:

Loss Solutions, Inc.
824 N. Market Street, Suite 425,
P.O. Box 368,
Wilmington DE 19899-0368.
302) 427-3600.

Or you may e-mail him at DEIrish 5@aol.com