TCA § 40-6-303 — Definitions

As used in this part and §§ 39-13-601 — 39-13-603 , unless the context otherwise requires: “Actual damages” means damages given as compensation; damages given as an equivalent for the injury done; damages in satisfaction of, or in recompense for, loss or injury sustained; those damages awarded to a person as compensation, indemnity, or restitution for harm sustained by the person; “Aggrieved person” means a person who was a party to an intercepted wire, oral or electronic communication, or a person against whom the interception was directed; “Attorney general and reporter” means the attorney general and reporter of Tennessee; “Contents,” when used with respect to any wire, oral or electronic communication, includes any information concerning the substance, purport or meaning of that communication; “Court of record” means any circuit or criminal court in the state of Tennessee; “District attorney general” means the district attorney general of any judicial district where jurisdiction exists to prosecute an offense that is grounds for an intercept order under § 40-6-305, or the judicial district where the interception of communications is to occur; “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by the aid of wire, radio, electromagnetic, photooptical or photoelectronic facilities, but does not include: Any wire or oral communication; Any communication made through a tone-only paging device; or Any communication from a “tracking device” as defined in 18 U.S.C. § 3117; “Electronic communications service” means any service which provides to users of the service the ability to send or receive wire or electronic communications; “Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than: Any telephone or telegraph instrument, equipment or facility or any component thereof: Furnished to the subscriber or user by a provider of wire or electronic service in the ordinary course of business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business; Being used by a provider of wire or electronic communication service in the ordinary course of its business; or Being used by an investigative or law enforcement officer in the ordinary course of that officer's duties; A hearing aid or similar device being used to correct sub-normal hearing to not better than normal; “Electronic storage” means: Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission of the communication; and Any storage of communication by an electronic communication service for purposes of backup protection of that communication; “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device; “Investigative or law enforcement officer” means: In all counties having a population in excess of two hundred fifty thousand (250,000), according to the 1990 federal census or any subsequent federal census: Any officer of the state or a political subdivision of the state, who: Is empowered by law to conduct investigations of or to make arrests for offenses enumerated in § 40-6-305; and Has successfully completed a training course on the interception and use of wire, oral and electronic communications approved by the Tennessee peace officer standards and training commission or the Tennessee bureau of investigation; or Any attorney authorized by law to prosecute those offenses; and In all other counties: An agent of the Tennessee bureau of investigation, who: Is empowered by law to conduct investigations of or to make arrests for offenses enumerated in § 40-6-305 ; and Has successfully completed a training course on the interception and use of wire, oral and electronic communications approved by the bureau; or Any attorney authorized by law to prosecute those offenses; “Judge of competent jurisdiction” means a judge presiding over any court of record as defined in this part and §§ 39-13-601 — 39-13-603 in the state of Tennessee; “Oral communication” means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation, but “oral communication” does not include any electronic communication; “Pen register” means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached, but “pen register” does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communication services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business; “Provider of wire or electronic communications service” means an entity which holds itself out to the public as engaged in the business of transmitting messages through the use of wire communication or electronic communication, as both terms are defined in this section; “Readily accessible to the general public” means, with respect to a radio communication, that the communication is not: Scrambled or encrypted; Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communications; Carried on a subcarrier or other signal subsidiary to a radio transmission; or Transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication; “Recorded device” means the tangible medium upon which sounds and/or images are recorded or otherwise stored, which includes any original phonograph record, disk, tape, audio or video cassette, wire, film, or other medium now known or later developed on which sounds and/or images are or can be recorded or otherwise stored, or any copy or reproduction which duplicates, in whole or in part, the original; and “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged as a provider of wire or electronic communications service in providing or operating those facilities for the transmission of communications. Acts 1994, ch. 964, § 3; 1996, ch. 903, § 1; 2006, ch. 777, § 1; 2009, ch. 440, §§ 1, 2. Compiler's Notes. 18 U.S.C. § 3117 , referred to in this section, concerns mobile tracking devices. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement. NOTES TO DECISIONS 1. “Intercept.” 2. Communication In Public Area. 1. “Intercept.” Unless an e-mail is actually acquired in its split second transmission over a computer network, it cannot be “intercepted” as that term is reasonably understood. Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 2008 U.S. Dist. LEXIS 84713 (M.D. Tenn. Oct. 10, 2008). Company's allegations that defendants intercepted emails in violation of the Tennessee Wiretap Act (TWA), T.C.A. § 39-13-601 et seq., and the Federal Wiretap Act (FWA), 18 U.S.C. § 2510 et seq., were dismissed because the company had not pled sufficient factual allegations that the emails at issue were obtained contemporaneously with their transmission. Expert Janitorial, LLC v. Williams, — F. Supp. 2d —, 2010 U.S. Dist. LEXIS 23080 (E.D. Tenn. Mar. 12, 2010). 2. Communication In Public Area. While recovery for interception of an oral communication is limited to those who possess an expectation that the communication is not subject to interception, the legislature did not exclude liability for those who intercept a communication in an area open to the public; while community events were routinely held at the fire hall, it remained locked and only permitted access via keypad or physical key in the absence of such events, and plaintiffs' communications were not recorded during any such event. Ledford v. Sneed, — S.W.3d —, 2020 Tenn. App. LEXIS 208 (Tenn. Ct. App. May 8, 2020).