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August 23, 2004, 9:00 AM ET, Alert No. 964.
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District Court Holds Rep. McDermott Violated Wiretap Act

8/20. The U.S. District Court (DC) issued its Memorandum Opinion [PDF] in Boehner v. McDermott, a civil case alleging violation of the Wiretap Act. The Court held that Rep. Jim McDermott (D-WA) violated 18 U.S.C. 2511, and notwithstanding the First Amendment and the Bartnicki case, can be held civilly liable for damages.

Facts. The plaintiff is Rep. John Boehner (R-OH) who is now the Chairman of the House Education and Workforce Committee. The defendant is Rep. McDermott, who is one of the more flamboyant and reckless Members of Congress.

Rep. Boehner participated in a telephone conference call, by cell phone, with several House Republican leaders in December of 1996. He was in the state of Florida at the time. John and Alice Martin, residents of Florida, used a radio scanner to intercept the conversation. They also made an audio recording of the conversation. They delivered a copy of the recording to Rep. Karen Thurman (D-FL), who advised them to delivery it to Rep. McDermott.

The Martins then traveled to Washington DC, and delivered the recording to Rep. McDermott, along with a cover letter that stated that the recording contained "a conference call heard over a scanner", and that they understand that they "will be granted immunity."

Rep. McDermott disclosed the contents of the recording to the New York Times (NYT), and the Atlanta Constitution Journal. The NYT then published a news story based upon the contents of the recorded telephone conversation.

At that time, Rep. McDermott was the ranking Democrat on the House Standards and Official Conduct Committee, which is also known as the House Ethics Committee. However, he resigned a few days latter.

The Martins were promptly charged with, and plead guilty to, criminal violation of the Wiretap Act, and in particular, 18 U.S.C. 2511.

However, the present case pertains to the civil liability provisions of the Wiretap Act as they pertain to Rep. McDermott.

Relevant Statutes. The Wiretap Act, which was enacted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, is the principal federal wiretapping statute. It is codified at 18 U.S.C. 2510 et seq. It prohibits the interception of wire, oral, and electronic communications, without a court order.

18 U.S.C. 2511 provides, in relevant part, that "(1) Except as otherwise specifically provided in this chapter any person who ... (c) provides that "intentionally discloses, or endeavors 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 of a wire, oral, or electronic communication in violation of this subsection ... shall be subject to suit as provided in subsection (5)."

Florida Statute 934.03 provides substantially identical language to the federal 2511. The District of Columbia's D.C. Code 23-542 is similar.

Previous Proceedings in This Case. Rep. Boehner filed a complaint in U.S. District Court (DC) against Rep. McDermott alleging violation of 18 U.S.C. 2511, Florida Statute 934.03, and D.C. Code 23-542.

Rep. McDermott moved to dismiss on the grounds that his actions were protected by the First Amendment. In a previous ruling, the District Court granted the motion to dismiss. The U.S. Court of Appeals (DCCir) reversed in a opinion published at 191 F.3d 463 (1999). The Supreme Court of the United States granted writ of certiorari, and vacated the judgment of the Court of Appeals, and remanded the case to the Court of Appeals in light of its decision in Bartnicki v. Vopper, 532 U.S. 514 (2001). See, McDermott v. Boehner, 532 U.S. 1050 (2001). The Court of Appeals then remanded the case to the District Court.

Rep. Boehner and Rep. McDermott then filed cross motions for summary judgment, with Rep. Boehner arguing that the facts of the Bartnicki case are distinguishable from those in the present case.

Bartnicki Case. On May 21, 2001, the Supreme Court issued its opinion [PDF] in Bartnicki v. Vopper, holding that a radio host (Vopper) cannot be sued under 18 U.S.C. 2511 for playing an audio recording of a cellular telephone conversation, despite a federal statute that made illegal both the interception of the conversation, and its disclosure. The majority reasoned that the case pitted statutes banning disclosure of illegally obtained electronic communications against the First Amendment freedom of speech claims of persons with illegally obtained recordings to disclose them if their content pertains to a public issue.

Justice Stevens wrote the opinion of the Court. He wrote that the recording violated federal wiretapping law, that Vopper knew this, but that he did not make the illegal intercept. He reasoned that the statute's application in this situation would violate Vopper's free speech rights under the First Amendment. See also, story titled "Supreme Court Diminishes Electronic Privacy" in TLJ Daily E-Mail Alert No. 192, May 22, 2001.

The reasoning of the majority in Bartnicki has been criticized by many. For example, the Office of the Solicitor General submitted a brief to the Supreme Court in which it argued that the Appeals Court erred.

Also, Chief Justice William Rehnquist wrote a dissenting opinion, in which Justices Antonin Scalia and Clarence Thomas joined. He wrote that "Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations. In an attempt to prevent some of the most egregious violations of privacy, the United States, the District of Columbia, and 40 States have enacted laws prohibiting the intentional interception and knowing disclosure of electronic communications. The Court holds that all of these statutes violate the First Amendment insofar as the illegally intercepted conversation touches upon a matter of ``public concern, an amorphous concept that the Court does not even attempt to define. But the Court's decision diminishes, rather than enhances, the purposes of the First Amendment: chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day."

District Court Holding. In the present Memorandum Opinion the District Court summarized the main issue: "In light of Bartnicki, the issue now squarely before this Court is whether 18 U.S.C. 2511(1)(c) is unconstitutional under the First Amendment as applied to Defendant in this case. Put another way, the issue is whether the First Amendment shields Defendant's disclosure from liability under the applicable wiretapping statutes."

The District Court held that the facts of this case are distinguishable from those in Bartnicki. In particular, Rep. McDermott's receipt of the tape from the Martins was so closely tied by knowledge and action to the Martins' illegal disclosure that he obtained the information unlawfully. And, since he obtained the illegal recording unlawfully, unlike the defendants in Bartnicki, who received an anonymous package in a mailbox, Rep. McDermott is not shielded by the holding in Bartnicki.

While Rep. McDermott claimed that he did not read the Martin's cover letter, and did not know that the recording had been illegally made, the District Court found that "by the time Defendant disclosed the tape to the media, he knew or had reason to know that the tape had been obtained through the unlawful interception of communications. Upon discovering that the tape presented by the Martins, two private citizens from Florida, contained a recorded telephone conversation among several high level government representatives, Defendant would have every reason to realize that the conversation had been illegally intercepted."

The District Court recited various reasons for finding that Rep. McDermott's testimony was not credible. For example, the New York Times (NYT) story contained the source and method of interception. It further used words that appeared in the Martin's cover letter. Also, Rep. McDermott insisted that the NYT maintain his anonymity, and later he denied being the NYT's source (until the Martin's stated that it was him); this, the District Court wrote, demonstrated that he knew of the impropriety of his actions.

The District Court explained the significance of Rep. McDermott's knowledge. "The Supreme Court noted, however, that whether the First Amendment shields a defendant from liability under that statute substantially depends upon the lawfulness of the manner in which he initially obtained the information. ... Where a defendant unlawfully obtains information, neither Bartnicki nor any other authority shields against liability for subsequent disclosure."

It added that "Bartnicki necessarily stands for the proposition that a defendant who anonymously receives illegally intercepted information without present knowledge of its illegality has obtained it lawfully." For example, a defendant in that case received "an unsolicited tape anonymously placed in his mailbox".

In contrast, in the present case, Rep. McDermott knew both who made the recording, and how it was made.

The District Court also addressed other issues. The Court considered, but rejected, an additional basis for finding that the Bartnicki case does not apply to the present case.

Rep. Boehner argued that United States v. Aguilar, 515 U.S. 593 (1995), applies in this case. That case held that certain disclosures by certain public officials are not protected by the same stringent First Amendment scrutiny as disclosures by ordinary citizens. (In Aguilar a federal judge illegally disclosed the existence of a federal wiretap.) The Court held while Rep. McDermott was the ranking Democrat on the House Ethics Committee, and that the Committee has rules against improper disclosure, Aguilar does not apply because it is not clear that Rep. McDermott was acting in his capacity as the ranking Democrat of the Committee when he released the recording to the NYT.

The District Court has not yet assessed damages.

The District Court also granted summary judgment to Rep. McDermott on the count alleging violation of the Florida statute. Rep. McDermott's acts occurred in the District of Columbia, and it would violated the Due Process and the Full Faith and Credit clauses of the Constitution to give the statute extraterritorial effect.

Related Case. On April 22, 2003 the U.S. Court of Appeals (10thCir) issued its opinion in Quigley v. Rosenthal, a civil case involving application of the federal wiretap act to the monitoring of cordless telephone conversations, as well as defamation, invasion of privacy by intrusion, and false light invasion of privacy. The opinion addresses who can be held liable for illegal interception of wire or electronic communications, and when the First Amendment offers protection to those who make use of such intercepted communications.

The Appeals Court affirmed a District Court civil judgment against the Anti-Defamation League (ADL) for violation of the Wiretap Act, when it had not conducted the monitoring, but rather, had conspired with others who recorded the cordless telephone conversations, and then made use of the recordings.

See, story titled "10th Circuit Rules on Civil Liability for Violation of Wiretap Act" in TLJ Daily E-Mail Alert No. 647, April 23, 2003.

Washington Tech Calendar
New items are highlighted in red.
Monday, August 23

The House and Senate are in recess through September 6.

10:00 AM. The House Financial Services Committee will hold a hearing titled "The 9/11 Commission Report: Identifying and Preventing Terrorist Financing". See, report of the National Commission on Terrorist Attacks Upon the United States (9-11 Commission). Press contact: Peggy Peterson at 202 226-0471. Location: Room 2128, Rayburn Building.

10:00 AM. The House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on the recommendations of the 9/11 Commission. The witnesses will be Christopher Kojm (Deputy Executive Director, 9/11 Commission), John Pistole (Executive Assistant Director for Counterintelligence and Counterterrorism, FBI), John Brennan (Director, Terrorist Threat Integration Center), and Greg Nojeim (Deputy Director, ACLU). Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. The hearing will be webcast. Location: Room 2141, Rayburn Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the reporting requirements for U.S. providers of international telecommunications services. This NPRM is FCC 04-70 in IB Docket No. 04-112. See, notice in the Federal Register, May 25, 2004, Vol. 69, No. 101, at Pages 29676 - 29681.

Wednesday, August 25

10:00 AM. The House Transportation Committee's Subcommittee on Aviation will hold a hearing titled "9/11 Commission Report: Review of Aviation Security Recommendations". Location: Room 2167, Rayburn Building.

10:30 AM - 12:15 PM. The Federal Communications Commission (FCC) will hold an event titled "Discussion on the Debt Collection Improvement Act Rules and Rules Governing Applications or Other Request for Benefits by Debtors". See, notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Online Communications Practice Committee will host a brown bag lunch. The topic will be Federal Communications Commission (FCC) and Department of Agriculture (USDA) policies related to deployment of wireless broadband services in rural areas. The speakers will be Peter Corea (Special Counsel, FCC's WTB's Broadband Division) and Chris Moore (USDA). For more info contact Ann Bobeck at RSVP to Evelyn Opany at Location: Piper Rudnick, 1200 19th St., NW, 7th Floor.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [30 pages in PDF] regarding its annual report to the Congress on the status of competition in the market for the delivery of video programming. See also, story titled "FCC Adopts NOI For Annual Report to Congress on Video Programming" in TLJ Daily E-Mail Alert No. 916, June 11, 2004. This NOI is FCC 04-136 in MB Docket No. 04-227. See also, notice in the Federal Register, July 1, 2004, Vol. 69, No. 126, at Pages 39930 - 39933.

Deadline to submit comments and notices of intention to participate to the Copyright Office regarding ascertainment of controversy for the 2002 cable royalty funds. The CO published a notice in the Federal Register that "directs all claimants to royalty fees collected for calendar year 2002 under the cable statutory license to submit comments as to whether a Phase I or Phase II controversy exists as to the distribution of those fees and announces the deadline for the filing of Notices of Intention to Participate in a royalty distribution proceeding concerning those royalty fees." See, Federal Register, July 26, 2004, Vol. 69, No. 142, at Pages 44548 - 44549.

Thursday, August 26

6:00 - 9:15 PM. The DC Bar Association's Intellectual Property Law Section and Computer and Telecommunications Law Section will host a continuing legal education (CLE) program titled "Software Patent Primer: Acquisition, Exploitation, Enforcement and Defense". The speakers will be Richard Litman (Litman Law Firm), Stephen Parker (Rothwell Figg, Ernst & Manbeck), David Temeles (Temeles & Temeles), and Martin Zoltick (Rothwell Figg). Prices vary. See, notice. For more information, contact 202-626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Friday, August 27

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding unlicensed use of the 3650-3700 MHz band. The FCC adopted this NPRM on April 15, 2004. This item is FCC 04-100 in ET Docket Nos. 04-151, 02-380 and 98-237. See, notice in the Federal Register, May 14, 2004, Vol. 69, No. 94, at Pages 26790 - 26803. See also, story titled "FCC Announces NPRM Regarding Unlicensed Use in the 3650-3700 MHz Band" in TLJ Daily E-Mail Alert No. 878, April 16, 2004.

Deadline to submit comments to the Federal Communications Commission FCC) in response to its notice of proposed rulemaking (NPRM) [11 pages in PDF] that proposes to require that television and radio broadcasters retain program recordings for a period of time for purposes of enforcing the statutory prohibition, codified at 18 U.S.C. 1464, against obscene, indecent, or profane programming. This NPRM is FCC 04-145 MM Docket No. 04-232. See, story titled "FCC Proposes That Broadcasters Retain Recordings To Facilitate Enforcement of Smut Ban" in TLJ Daily E-Mail Alert No. 933, July 8, 2004. See, notice in the Federal Register, July 30, 2004, Vol. 69, No. 146, at Pages 45665 - 45668.

Monday, August 30

The Republican National Convention will be held in New York City on August 30 through September 2.

More News

8/19. The Department of Justice (DOJ) announced that Richard Gibson plead guilty in U.S. District Court (WDWash) to wrongful disclosure of individually identifiable health information for economic gain in violation of the health information privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA). In the scope of his employment he obtained a patient's name, date of birth and social security number, and used that information to engage in identity theft. He obtained and used credit cards in that patient's name. See, U.S. Attorneys Office release.

8/19. The Department of Justice (DOJ) announced that Gayle Spence Luacaw plead guilty in U.S. District Court (DNH) to one count of conspiracy to commit securities fraud and wire fraud. The DOJ stated in a release that she participated "in a fraudulent transaction with a China-based company known as Ariel, which allowed Enterasys to improperly report approximately $3.5 million in revenue for the quarter ended Sept. 1, 2001." The DOJ also stated that she is a "former executive of Enterasys Network Systems, Inc., a computer hardware and software corporation previously headquartered in Rochester, New Hampshire".

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