Legal Tech • March 2024

Oral Communication

The Federal Wiretap Act protected a driver’s reasonable expectation of privacy in the cab of his employer’s truck.

Written by Pierre Grosdidier

Authorities charged truck driver Ricardo Santiago Ortiz-Lopez after his arrest for transporting 48 undocumented aliens hidden in the trailer of his employer’s truck.1 At trial, the government introduced recordings of his incriminating conversations in the cab, both on his cellphone and with his shotgun-riding co-defendant. Ortiz-Lopez claimed, and the prosecution did not challenge, that his employer had told him that the truck’s dashcam only recorded during adverse traffic events, like hard brakes or collisions. In fact, the dashcam surreptitiously recorded more than that, and Ortiz-Lopez argued that he never consented to being recorded as such. The trial court granted his motion to suppress pursuant to the Federal Wiretap Act of 1968’s exclusionary provision, which applies when communications are intercepted in violation of the act.2

The act applies to both governmental authorities and private parties and, subject to some exceptions, bans the intentional interception of wire or oral communications. Significantly, the act protects oral communications “by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation,” but it protects wire communications regardless of such expectation.3

The trial court quickly dispatched the government’s first argument that the act did not apply to Ortiz-Lopez’s cellphone conversations because the dashcam recorded voices in the cab (recording one side of a phone conversation is not an interception under the act). The act protects cellphone conversations because they use wire and cable connections at some point in the communication chain, and the dashcam recorded two sides of at least one such conversation when Ortiz-Lopez listened to a voice message in his cab.4 Significantly, the government did not challenge, and the court did not decide, whether the dashcam intercepted the cellphone conversations over the wire.5

Whether the act applied to Ortiz-Lopez’s oral conversations with his confederate hinged on his reasonable expectation that they were not intercepted. To resolve this issue, courts in the 5th Circuit apply a test similar to Katz v. United States’ reasonable subjective expectation of privacy test that courts apply to Fourth Amendment violations.6 Courts analyze the reasonability element of this test on a case-by-case basis and through a nonexclusive list of six factors. These factors focus on the context of the conversations, like their partakers’ measures to shield them from prying ears and the ease with which they can be overheard. But, neither party briefed these factors, and the court found no case that analyzed whether a truck driver can expect his conversations in the cab of his employer’s truck to remain private.7

Instead, the court analogized the truck’s cab to a driver’s “office” and, equivalently, to an employee’s workplace in the private sector. Courts have held that, under certain circumstances, these employees “may justifiably ‘manifest[ ] a subjective expectation of privacy in their workspace.’”8 Here, Ortiz-Lopez’s conversations in his enclosed cab could not be overheard without some technical enhancements, and his employer had assured him that the dashcam remained dormant in the absence of a traffic event. His expectation that his conversations were not overheard was, therefore, reasonable, and these conversations qualified as protected “oral communications” under the act.9

Finally, the court rejected the government’s argument that Ortiz-Lopez consented to the recordings because his employer disclosed the existence of the dashcam. As the court noted, consent under the act, whether explicit or implied, “should not casually be inferred.” Moreover, mere knowledge of the capability of a recording is insufficient to imply consent. Ortiz-Lopez at most consented to being recorded during traffic events, not at all times.10 For these reasons, the court granted Ortiz-Lopez’s motion to suppress.


U.S. v. Ortiz-Lopez, 651 F. Supp. 3d 855, 858 (W.D. Tex. 2023).
18 U.S.C. §§ 2510, 2515 (Electronic Communications Privacy Act of 1986).
Ortiz-Lopez, 651 F. Supp. 3d at 859–60 (citing 18 U.S.C. §§ 2510(1)–(2), 2511(a)).
Id. at 861–62 and nn.12–13 (citing cases).
Id. at 862 n.13 (citing 18 U.S.C. § 2510(4)).
Id. at 862–63 (citing, inter alia, Katz v. United States, 389 U.S. 347 (1967)).
Id. at 863, 865–66.
Id. at 865 (quoting Cressman v. Ellis, 77 F. App’x 744, 746 (5th Cir. 2003) (citing United States v. McIntyre, 582 F.2d 1221, 1224 (9th Cir. 1978)).
Id. at 866–67.
Id. at 867–69 (citing In re Pharmatrak, Inc., 329 F.3d 9, 20 (1st Cir. 2003) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 117–18) (1st Cir. 1990)).


Headshot of Pierre GrosdidierPIERRE GROSDIDIER is a litigation attorney in Houston. He is certified in construction law by the Texas Board of Legal Specialization. Grosdidier’s practice also includes data privacy and unauthorized computer access issues and litigation. Prior to practicing law, he worked in the process control industry. Grosdidier holds a Ph.D. from Caltech and a J.D. from the University of Texas. He is a member of the State Bar of Texas, a registered P.E. in Texas (inactive), a member of the Texas Bar Foundation, a fellow of the American Bar Foundation, and the State Bar of Texas Computer & Technology Section chair for 2022-2023. Grosdidier was elected medium section representative to the State Bar of Texas for the 2023-2026 term.

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