Voicemail as Legal Evidence

 By: Jeff Noctis
The Patriot Act

Any organization or company can be compelled to surrender customer identifying information for a variety of reasons and an assortment of procedures. With The Patriot Act it is now even more encompassing, as the act has made several important changes. The law has settled on the interpretation that telephone company records of calls made to and from an individual's home are not protected by the fourth amendment.

The fourth amendment does not cover it because there is no "justifiable expectation of privacy" in regards to them. Smith v. Maryland, 442 U.S. 735 (1979) is an example. What this means is that the only thing that is required to pull these records is the showing of reasonable grounds that there is relevancy to a criminal investigation. This will entitle law enforcement officers to a court order mandating that access be granted.

The Patriot Act further expands these powers. For example, section 212 allows communication service providers to hand out the customer's records or communications (including stored voicemails) in an emergency where there is a threat of bodily injury. The definition of a threat of bodily injury is somewhat vague and the courts have used their discretion in the past.

With voicemails having been placed in the same category as emails there is now less protection. Before the Patriot Act it was possible that a court would dismiss voicemail evidence that was not obtained with wiretap order. Voicemails are, pursuant to section 209, subject to a simple warrant.

Federal Law

It has been determined that voicemail recordings are "discoverable" in the legal sense. This means it is not shielded completely from use in court cases. According to federal law - "Discovery of Electronic Data includes writings, drawings, graphs, charts, photos, sound recordings, images, data or data compilations stored in any medium that can be translated into a reasonably useable form including emails, cell photos and PDAs, instant messages, voicemail." (FRCP 34(a)).

Voicemail as a Defense Tool

It can come to pass on occasion that people lie. Sure, most people are good and try to do the right thing but sometimes they are misled, coerced and sometimes, just malicious.

There was a hard working family man, called "Bob," who worked a blue collar job for a relatively large firm for several years. Bob was fairly successful, was paying his dues in life, and was on good terms with most people he worked with. It happened one day that a report was filed with HR about some alleged wrong doing; nothing criminal in any way but a definite black mark and possibly a firing offense for Bob. A coworker, "Dick", had reported some alleged policy violations that made "Bob" - who also happened to be a friend of Dick's - look like a major screw-off in the workplace. Dick later felt horrible about it, called and left a voice message for Bob begging forgiveness for it. Dick confessed that a senior supervisor - one of the very few people who did not like Bob - had threatened his job if he did not falsify the report. This voice message was very damaging evidence against the unscrupulous supervisor who had arranged the entire situation to eliminate Bob.

This is a true example (names have been changed) of what can be done with voicemail as a defense tool. It is not only criminal investigators who can use voicemails as evidence, with there being no justifiable expectation of privacy the owner of a voice mailbox is free to use any messages for their defense against any allegations that the voicemails might be connected to. Recording someone surreptitiously is often illegal, however, when someone leaves a message on your answering machine or voice mailbox, they know they are being recorded and thus consent to it.
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