Minnesota’s wiretapping statute, Section 626A.02, is almost identical to the federal wiretapping statute, 18 U.S.C. Section 2511(1). In general, Minnesota’s statute states that it is legal for a person to record a wire, oral, or electronic communication if that person is a party to the communication, or if one of the parties has consented to the recording, so long as the recording is not made for the purpose of committing any criminal or tortious act. In other words, a party to a communication, or someone with one party’s prior consent, may lawfully record it, but that exemption is lost if the recording is made to commit a criminal or tortious act, such as fraud or blackmail; obtaining consent does not cure that purpose. Absent an unlawful interception, the statute’s use-and-disclosure offenses under subdivision 1 do not apply, but it separately prohibits providers of electronic communications service to the public from intentionally divulging the contents of communications in transmission on their service. If you violate this statute you could be either criminally liable or subject to civil suit, depending on the type of communication involved.

Offenses Under the Statute

Except as otherwise specifically provided in this chapter, any person who: (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, electronic, or oral communication;

(2) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:

(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

(ii) such device transmits communications by radio, or interferes with the transmission of such communication;

(3) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic, or oral communication in violation of this subdivision; or

(4) intentionally uses, or endeavors to use, the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic, or oral communication in violation of this subdivision; shall be punished….

How to Show that a Recording Was Used for a Criminal or Tortious Purpose

The burden of proof lies with the party attempting to show that the communication was intercepted for a criminal or tortious purpose. Put more simply, the person alleging the wrongdoing must have evidence of the intent of the wrongdoer. Thomas v. Pearl, 998 F.2d 447, 451 (7th Cir. 1993)

Penalties

There are both criminal and civil penalties under Minnesota’s wiretap law. A person can be subject to a suit by the county or city who has jurisdiction over the violation, as well as a civil fine. The criminal penalty is a maximum fine of not more than $20,000 or imprisonment for not more than five years, or both.