Request By:
Honorable Dwight Preston
Hardin County Attorney
#30 Public Square
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you request an opinion on the propriety of the procedure employed in your county in tracing harassing telephone calls.
You state that your judges require a complainant to sign an affidavit concerning the particulars of the phone calls. The complainant must also state that he will prosecute the person making the calls once the phone company has determined who is making them. After the affidavit has been signed by the complainant, the judge signs an order and forwards it to the telephone company to have the wiretap placed on the complainant's telephone.
We find this procedure to be proper. The wiretap or pin register employed is not illegal since it is placed on the telephone by the telephone company at the request of the telephone subscriber. That the procedure is not violative of the Kentucky statutes, see KRS 526.010, 526.020 where it is stated:
KRS 526.020 (1) "A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop whether or not he is present at the time.
KRS 526.010 "The following definition applies in this chapter, unless the context otherwise requires:
"Eavesdrop" means to overhear, record, . . . or transmit any part of a wire or oral communication of others without the consent of at least one party thereto by means of any electronic, mechanical or other device."
Presumably the telephone company records the telephone number from which the telephone call was made rather than the oral conversation. Regardless of whether the telephone number is part of a wire communication transmitted to a recorder or whether the statutes are not broad enough to proscribe the recordation, the participation of the telephone company is proper since it was done with the consent of the subscriber. Compare
Maynard v. Commonwealth, Ky. App., 558 S.W.2d 628 (1977).
Similarly, there is no violation of the federal wiretapping law since the consent of the subscriber is obtained. 18 U.S.C. § 2515;
U.S. v. Bragan, 499 F.2d 1376 (4th Cir. 1974);
Rogers v. U.S., 369 F.2d 944 (10th Cir. 1966). See also 20 L.Ed 2d 1718, Wiretap Evidence;
Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979).
The affidavit required by the judges of the subscriber, although not statutorily required, is a reasonable exercise of discretion in the matter.