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§ 13A-11-30. Definitions

§ 13A-11-30. Definitions.

The following definitions apply to this article:

(1) Eavesdrop. To overhear, record, amplify or transmit any part of the private communication of others without the consent of at least one of the persons engaged in the communication, except as otherwise provided by law.

(2) Private place. A place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but such term does not include a place to which the public or a substantial group of the public has access.

(3) Surveillance. Secret observation of the activities of another person for the purpose of spying upon and invading the privacy of the person observed.

§ 13A-11-31. Criminal eavesdropping.

(a) A person commits the crime of criminal eavesdropping if he intentionally uses any device to eavesdrop, whether or not he is present at the time.

(b) Criminal eavesdropping is a Class A misdemeanor.

NOTES:
13A-11-31 Commentary
The Criminal Code exempts so-called "eavesdropping" which is done with the consent of one or more of the parties to the discourse; this encompasses recording by one of the parties themselves or another person upon his direction. This same exemption is found in the Omnibus Crime Control and Safe Streets Act of 1968, 18 USCS § 2511, and has been held not to be unconstitutional on its face. United States v. Becker, 337 F. Supp. 546 (D.C.N.Y. 1971). In Alonzo v. State, 283 Ala. 607, 219 So. 2d 858 (1969), where one of the parties to the discourse recorded the conversation, the court held it to be no invasion of the constitutionally protected right of privacy. It appears that the consent of one or more of the parties yields the conversation nonprivate.

Ordinarily then, the consent by at least one of the parties to the discourse is necessary before the conduct of eavesdropping is excused under § 13A-11-31. Section 13A-11-36(a)(1) also exempts a peace officer who was engaged in the lawful performance of his duties, or any person who relied in good faith on a lawful court order or legislative authorization. Whether any police surveillance is permitted will depend upon the judicial interpretation of "except as otherwise provided by law," § 13A-11-30(1) and "engaged in the lawful performance of his duties," § 13A-11-36(a)(1).

Since the Criminal Code's definition of eavesdropping excludes the overhearing, recording, amplifying or transmitting with the consent of one of the parties, the right of a citizen to record his own conversation is maintained. This also makes the keeping of records for business purposes legitimate.

§ 13A-11-32. Criminal surveillance.

(a) A person commits the crime of criminal surveillance if he intentionally engages in surveillance while trespassing in a private place.

(b) Criminal surveillance is a Class B misdemeanor.

§ 13A-11-33. Installing an eavesdropping device.

(a) A person commits the crime of installing an eavesdropping device if he intentionally installs or places a device in a private place with knowledge it is to be used for eavesdropping and without permission of the owner and any lessee or tenant or guest for hire of the private place.

(b) Installing an eavesdropping device in a private place is prima facie evidence of knowledge that the device is to be used for eavesdropping.

(c) Installing an eavesdropping device is a Class C felony.