Preserving Privilege: Developing a Sound Litigation Strategy for Prison Wiretapping Cases

Daniel J. Cummins | February 14, 2023

The attorney–client privilege is the oldest and most storied privilege in the United States common law. The justifications for the preservation of the privilege compound when applied to incarcerated individuals who wish to speak with their counsel privately over the phone to organize their criminal defense, appeal a judgment, or work through negotiations with the government. However, in recent years, private telecommunications providers operating in jails and prisons have continually violated that privilege by recording prisoners’ calls with their attorneys. Plaintiffs have taken to the courts to litigate these wrongs but have enjoyed limited and disparate degrees of success. This Note explores one possible civil cause of action available to prisoners and their attorneys in these situations: the Federal Wiretap Act. Specifically, it analyzes and rebuts defendants’ most prevalent defenses. In doing so, it offers a litigation roadmap to plaintiffs who have been harmed by these predatory recording practices and wish to hold the telecommunications companies responsible for their actions.


J.D. Candidate, Northwestern Pritzker School of Law, 2023; B.S., Indiana University, 2017. I owe a deep debt of gratitude to every member of the Northwestern University Law Review Online team for their thoughtful work on this Note and support over the past year. Thanks as well to Alan Mills, Executive Director of the Uptown People’s Law Center, for his course on Prisons and Prisoners’ Rights, which provided me with the opportunity to write on this topic. To Maurice Possley, for his careful copyediting. Finally, a very special thank you to my grandfather, Robert Cummins. Not only did he inspire this Note, but he has served as the best guidepost and confidant that I could ask for as I pursue a career in the law.

Copyright 2023 by Daniel J. Cummins

Cite as: Daniel J. Cummins, Preserving Privilege: Developing a Sound Litigation Strategy for Prison Wiretapping Cases, 117 Nw. U. L. Rev. Online 107 (2023),