House Bill 396

AN ACT TO CREATE NEW SECTION 41-29-502, MISSISSIPPI CODE OF 1972, TO PROHIBIT THE INTENTIONAL INTERCEPTION OR RECORDING OF ANY COMMUNICATION, OR THE INTENTIONAL DISCLOSURE OR USE OF THE CONTENTS OF ANY UNLAWFULLY INTERCEPTED OR RECORDED COMMUNICATION, EXCEPT AS SPECIFICALLY PROVIDED BY LAW; TO AUTHORIZE THE INTERCEPTION OR RECORDING OF A COMMUNICATION WHERE THE PERSON IS A PARTY TO THE COMMUNICATION AND WHERE ALL OF THE PARTIES TO THE COMMUNICATION HAVE GIVEN PRIOR CONSENT TO THE INTERCEPTION OR RECORDING; TO AMEND SECTIONS 41-29-517 AND 41-29-531, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; TO AMEND SECTION 41-29-533, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY PERSON WHO VIOLATES THIS ACT IS GUILTY OF A FELONY; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following shall be codified as Section 41-29-502, Mississippi Code of 1972:

41-29-502. (1) Except as otherwise specifically provided in this article, it is unlawful for any individual, partnership, corporation or association, or the State of Mississippi, its agencies and political subdivisions, to:

(a) Intentionally intercept or record, endeavor to intercept or record, or procure any other person to intercept or record or endeavor to intercept or record, any wire, oral or electronic communication;

(b) Intentionally disclose, or endeavor to disclose, to any other person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception or recording of a wire, oral or electronic communication in violation of this article; or

(c) Intentionally use, or endeavor to use, the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception or recording of a wire, oral or electronic communication in violation of this article.

(2) Notwithstanding the provisions of subsection (1) of this section, it is lawful under this article for a person to intercept or record a wire, oral or electronic communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception or recording, unless the communication is intercepted or recorded for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this state, or for the purpose of committing any other injurious act.

(3) Where the consent of all parties to a communication is needed under this article, consent shall be considered obtained whenever one (1) party has announced to all other parties to the communication, in any reasonably effective manner, that the communication is about to be intercepted or recorded. If the communication is to be recorded, that announcement also shall be recorded.

SECTION 2. Section 41-29-517, Mississippi Code of 1972, is amended as follows:

41-29-517. (1) The contents of a wire, oral or other communication intercepted by means authorized by a court order issued under this article shall be recorded on tape, wire or other comparable device. The recording of the contents of a wire, oral or other communication under this subsection shall be done in a way that protects the recording from editing or other alterations.

(2) Immediately on the expiration of the period of the order and all extensions, if any, the recordings shall be made available to the judge issuing the order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. The recordings may not be destroyed until at least ten (10) years after the date of expiration of the order and the last extension, if any. A recording may be destroyed only by order of the judge of competent jurisdiction who authorized the interception, or his successor.

(3) Duplicate recordings may be made for use or disclosure pursuant to subsections (1) and (2) of Section 41-29-511 for investigations.

(4) The presence of the seal required by subsection (2) of this section, or a satisfactory explanation of its absence, shall be a prerequisite for the use or disclosure of the contents of a wire, oral or other communication or evidence derived from the communication under subsection (3) of Section 49-29-511.

SECTION 3. Section 41-29-531, Mississippi Code of 1972, is amended as follows:

41-29-531. This article shall not apply to:

(a) An operator of a switchboard, or an officer, employee or agent of a communication common carrier whose facilities are used in the transmission of a wire communication, intercepts a communication, or who discloses or uses an intercepted communication in the normal course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of the communication;

(b) An officer, employee or agent of a communication common carrier who employs or uses any equipment or device which may be attached to any telephonic equipment of any subscriber which permits the interception and recording of any telephonic communications solely for the purposes of business service improvements;

(c) An officer, employee or agent of a communication common carrier who provides information, facilities or technical assistance to an investigative or law enforcement officer who is authorized as provided by this article to intercept a wire, oral or other communication;

(d) A person acting under color of law who intercepts a wire, oral or other communication if the person is a party to the communication, or if one (1) of the parties to the communication has given prior consent to the interception; or

(e) A person not acting under color of law who intercepts a wire, oral or other communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception, unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this state, or for the purpose of committing any other injurious act.

SECTION 4. Section 41-29-533, Mississippi Code of 1972, is amended as follows:

41-29-533. (1) Any person who knowingly and intentionally possesses, installs, operates or monitors an electronic, mechanical or other device in violation of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to not more than one (1) year in the county jail or fined not more than Ten Thousand Dollars ($10,000.00), or both.

(2) Any person who violates the provisions of Section 41-29-502 or Section 41-29-511 shall be guilty of a felony and, upon conviction thereof, shall be sentenced to not more than five (5) years in the State Penitentiary and fined not more than Ten Thousand Dollars ($10,000.00).

SECTION 5. This act shall take effect and be in force from and after July 1, 2005.