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