Is it Illegal to Listen to a Podcast or Watch a Movie Online?
Imagine you’re sitting at home, browsing your favorite news or streaming site and you decide to watch a political documentary or listen to a provocative podcast. You press play, and the voices of reporters, experts or entertainers stream through your speakers. Could this simple act of listening or viewing expose you to criminal liability under federal wiretapping law? It sounds absurd, but some interpretations of a decades-old law could theoretically criminalize the passive receipt of digital content containing human speech. The culprit? The federal wiretap statute: 18 U.S.C. § 2511.
The wiretap statute prohibits the use of any device to intentionally “intercept” (acquire the contents of) a “wire communication” (the sound of the human voice) which is transmitted over a wire, cable or other like connection in or affecting interstate commerce unless you are a party to the wire communication, or a party to the wire communication has given prior consent to your acquisition of the communication — and even then, only if the purpose of the “interception” is not to commit some crime or tort.
That was all fine in 1968 when “wire communications” were phone calls between two people, and they reasonably expected them to be private. The only things you worried about were the phone company listening in or the Feds with a wiretap order issued by a judge, and those were dealt with in the statute.
But the definition of “wire communications” has not relevantly changed since 1968, while technology has. In 1986, Congress briefly exempted the radio portion of cordless phones from the coverage of “wire communications” reckoning that broadcast and unsecure wireless communications from a base station to a receiver were more like “radio” communications than phone calls, but they reversed that in 1994 because it made no sense – particularly to the other party to the phone call who had no way of knowing that the person they were talking to had used a cordless rather than a corded phone.
For face-to-face (oral) communications, the statute exempts those which are not private or not intended to be private.
In 2025, however, there are lots of “communications” that travel over “wire, cable or like connection” communications which are a “transfer containing the human voice at any point between and including the point of origin and the point of reception” which may be freely and publicly “acquired.” Is it lawful to acquire them? Streaming audio, video with audio, podcasts, TikTok’s, VLogs, movies, streaming news broadcasts, etc., are all audio – or partly audio — may be wire communications which are capable of “interception.” But, because of an anachronism of point-to-point phone calls in 1968, the acquisition of anything containing the human voice sent by “wire” or its equivalent IS A CRIME unless you are a party to the communication or have the prior consent of a party. That might make sense for something like a Zoom call, but not for publicly accessible audio streams.
But, the electronic communication statute specifically exempts wire communications in its definition. For electronic communications (which excludes wire communications) the statute makes it plain that they are not criminally implicated if they are acquired from a server that is “configured so that the communication is readily accessible to the general public.” For broadcast radio or tv communications, unencrypted or publicly accessible communications may be freely acquired.
If the statute truly prohibits viewing TikToks, listening to music, and streaming anything with the human voice, it is unconstitutionally overbroad and vague and prohibits a host of constitutionally protected speech. It’s unconstitutional on its face, and would permit the government to enforce the criminal statute in a discriminatory fashion based on disfavored speakers or recipients. Even the possibility of such enforcement would have a chilling effect on anyone who sought out such streaming audio content – knowing that they could face jail time.
This is not just a hypothetical. In Tampa, Florida, the government is currently prosecuting a journalist (full disclosure, I represent the journalist) under this theory for downloading live video streams of interviews others conducted from a web server. While the journalist contends that the webserver was configured to be readily accessible to the general public (all you needed was the correct URL), the government argues that, for the purposes of the interception of “wire communications” (the human voice portion of a video) whether this is true or not is irrelevant. This would mean that a journalist who downloaded and reported on (it’s a separate offense to “disclose the contents of an intercepted communication”) something they got from a public source online would be subject to prosecution.
So, what about the “party consent” provision that says that it’s not a crime to intercept or disclose the contents of a wire communication if you are a party to that communication or if a party consented to the disclosure? If I download a file containing audio from a public source, am I not a “party” to that communication, or does consent apply only to the speakers in the download? Hard to say, but in the traditional sense, I’m probably not a party. This is a communication between John and Dave, that is recorded and transmitted in a way that John and Dave may – or may not – know about. I may be “authorized” to acquire it, or I may simply have the “ability” to acquire it, but I am likely not a “party” to the communication. Similar problem about having the “prior consent” of a party to “acquire the contents.” That may work when the parties to the communication (say, in a podcast) expressly or impliedly consent to having the communication publicly shared prior to having the communication, but that may not work with something like a TikTok video of a civilian/police interaction. The police officer has no reasonable expectation of privacy in the interaction in public, so the recording is legal, but may or may not have given “prior consent” to the viewer of that TikTok video to “acquire the contents” of the communication.
Another possibility. The person who downloads the TikTok, song, movie, streaming content, does not “acquire” the contents of the communication. They merely “acquire” a copy of an electronic communication created by the parties – which is not the original communication — like a cassette of a voicemail. The problem there is that the definition of “wire communication” means a transfer containing the human voice at any point between and including the point of origin and the point of reception.” You would have to redefine the “point of reception” to mean, the “point of recording” for later transmission. There’s an old saying, “words can mean anything you want them to mean if you are willing to torture them enough.”
The statute was fine in 1968 when Simon and Garfunkel’s “Mrs. Robinson” topped the music charts, and Steve McQueen drove his Highland Green Mustang GT Fastback through the streets of San Francisco. Fifty-seven years later, it’s looking a bit dated. And unconstitutional.
