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July 5, 2007, Alert No. 1,605.
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1st Circuit Considers Baby Monitors and Wiretap Acts

6/22. The U.S. Court of Appeals (1stCir) issued its opinion in Jean v. Massachusetts State Police, affirming the judgment of the District Court. The Court of Appeals, extending the Supreme Court's opinion in Bartnicki v. Vopper, held that a web site operator who published a video captured by a home baby cam of a warrantless and unlawful state police search of that home is protected from prosecution by the state by the First Amendment. However, the Court of Appeals wrote that the underlying use of the baby cam violated the state wiretap act.

Background. Paul Pechonis is an individual who resides in the state of Massachusetts. The Court of Appeals opinion provides little detail about him. However, a quick internet search producers numerous news stories and blog entries regarding Pechonis and the events that gave rise to this case. However, he is not a party to the present case.

The Court of Appeals opinion discloses that armed state police went to his home, handcuffed him and "conducted a warrantless search of his entire house. The arrest was both audiotaped and videotaped by a “nanny-cam,” a motion-activated camera used by parents to monitor children’s activities within the home. The parties contest whether the recording was accidental; this fact is immaterial to the outcome of the case."

The Court of Appeals described Mary Jean, who is a party to this action, as "a local political activist in Worcester, Massachusetts, maintained a website displaying articles and other information critical of former Worcester County District Attorney John Conte".

Pechonis gave Jean a copy of the video captured by the baby cam. She published it in her web site. The state police then attempted to suppress her publication by threatening her with criminal prosecution under the state wiretap act. That is, they asserted that a baby cam used in a private home is a criminal violation.

The Massachusetts state police wrote a letter to Jean demanding that if she did not "cease and desist, within 48 hours of receipt of this letter, from posting this unlawful tape on the internet or any other publicly accessible site," then the state police would "refer this matter to the District Attorney's office for further investigation and possible prosecution."

The Court of Appeals wrote, without explanation or analysis, that the recording was "illegally recorded" and that it constituted an "illegally intercepted tape". The opinion does not identify whether this was a stipulated fact, a factual conclusion, a legal holding, or dicta.

District Court. Mary Jean filed a complaint in U.S. District Court (DMass) against the Massachusetts State Police and others seeking temporary and permanent injunctive relief against prosecution, threatening prosecution, or interference with her publication.

She argued that her actions were protected by the First Amendment of the U.S. Constitution.

The District Court held that Bartnicki v. Vopper is controlling, and issued a preliminary injunction.

The Massachusetts State Police brought the present appeal.

Statutes. The Bartnicki case involved the federal Wiretap Act, which was enacted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 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) ... any person who ... (c) 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 punished ...".

18 U.S.C. § 2510, the definitional section of the Wiretap Act, provides that an "oral communication" means "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication".

The present case involved the Massachusetts state wiretap statute, at Mass. Gen. Laws ch. 272, § 99. It provides at § 99(B)(4) that an "interception" means "to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication."

§ 99(C)(1) the provides that any person who "willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception" may be punished with a fine of up to ten thousand dollars, imprisoned for up to five years, or both.

§ 99(C)(3) then provides that an individual who "willfully discloses or attempts to disclose to any person the contents of any wire or oral communication, knowing that the information was obtained through interception ... shall be guilty of a misdemeanor."

The two statutes are similar. Both cover the recording of conversation (which is an oral communication) and video recordings. The federal statute covers a "communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation". That is, it codifies the two prong test applied by the Supreme Court in 4th Amendment cases. There must be both an expectation of privacy, and that expectation must be reasonable. See, 1967 opinion in Katz v. U.S., reported at 389 U.S. 347, and its progeny.

The Massachusetts statute is more vague. It merely refers to a "secret" recording.

Bartnicki v. Vopper. On May 21, 2001, the Supreme Court issued its opinion 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 the 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.

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

Court of Appeals. The Court of Appeals affirmed. It too extended Bartnicki v. Vopper to the facts of this case.

The Court of Appeals held that "the First Amendment prevents Massachusetts law enforcement officials from interfering with an individual's internet posting of an audio and video recording of an arrest and warrantless search of a private residence, when the individual who posted the recording had reason to know at the time she accepted the recording that it was illegally recorded".

The Court of Appeals first wrote that both the state and federal wiretap statutes are content neutral. Then the Court of Appeals, like the Supreme Court, weighed the interests in privacy against the public interest in dissemination of information of public interest.

The Court of Appeals concluded that the privacy interest of the police is "virtually irrelevant here, where the intercepted communications involve a search by police officers of a private citizen’s home in front of that individual, his wife, other members of the family".

The Court of Appeals also wrote that it is significant that the interceptor was known in this case, but not in Bartnicki v. Vopper. It concluded that "there is a better argument for prosecuting a subsequent publisher of information when the interceptor is anonymous". (Underscore in original.)

The Court of Appeals added that "The police do not deny that the event depicted on the recording -- a warrantless and potentially unlawful search of a private residence -- is a matter of public concern."

The Court of Appeals concluded that "We conclude that the government interests in preserving privacy and deterring illegal interceptions are less compelling in this case than in Bartnicki, and Jean’s circumstances are otherwise materially indistinguishable from those of the defendants in Bartnicki, whose publication of an illegally intercepted tape was protected by the First Amendment. Jean's publication of the recording on her website is thus entitled to the same First Amendment protection."

Analysis. First, this opinion is a victory for freedom of speech or of the press. It will especially benefit individuals who engage in political expression on the internet.

Second, this opinion is a defeat for privacy rights. By further expanding the scope of the Bartnicki v. Vopper exemption, this case provides further incentive for persons, entities and governments to wiretap, bug, and surveil in violation of state and federal laws, and then transfer, or launder, the fruits of their surveillance through news media or internet bloggers.

Finally, there is the matter that the District Court and Court of Appeals both concluded that the underlying use of the baby cam was "illegal" under the Massachusetts wiretap statute, and this case is "materially indistinguishable" from Bartnicki v. Vopper, which involved the federal wiretap statute.

Bartnicki v. Vopper involved a wiretap of a cell phone conversation in the classic sense of the term wiretap. The Congress has enacted and amended the federal statute with this sort of intercept in mind.

In contrast, baby cams are used by millions in a manner not contemplated as illegal by the Congress or the Massachusetts legislature. Baby cams are used to monitor babies and children both in the home, and from a distance. They are used to supplement the efforts of teenage baby sitters. They are used by persons with disabilities to monitor conversations and events in the house which they cannot reach because of their disabilities. These are socially beneficial uses. Yet, the opinion of the Court of Appeals calls into question the legality of these uses.

Moreover, the wiretap statutes are designed, in large part, to protect individuals from unreasonable searches and seizures by the police. Yet, in the present case, the police who conducted a warrantless search and seizure perversely and unprofessionally attempted to use a wiretap statute to prevent the public from learning about its warrantless searches and seizures.

The Massachusetts wiretap statute provides that "secret" is an element of the crime. The Court of Appeals could not have based its conclusion that the operation of the baby cam was "secret" on the fact that Pechonis failed to disclose it to the police. He did not invite them to his home. They came and immediately arrested him. His constitutional right to remain silent attached at the outset, when the police handcuffed him. He could have been under no duty or obligation to disclose the baby cam, because that would necessarily imply that a state statute can override a U.S. Constitutional right. Hence, the reasoning of the Court of Appeals must have been that there was a per se illegality when the baby cam captured a third party.

The Court of Appeals has called into question the legality of using in monitoring devices in a private home, for private reasons. Yet, it provided no legal analysis, and no elaboration regarding what situations might be illegal, and what might be legal.

Eric Hermanson of the law firm of Choate Hall & Stewart represented Mary Jean before the Court of Appeals. He told TLJ that the illegality of the baby cam "was not a significant issue in this case", and that Pechonis' "conduct ... really wasn't part of what the First Circuit was being called to evaluate".

He added that "the issue has been held for another day".

This case is Mary Jean v. Massachusetts State Police, et al., U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 06-1775, an appeal from the U.S. District Court for the District of Massachusetts, Judge Dennis Saylor presiding. Judge Lipez wrote the opinion of the Court of Appeals, in which Judges Boudin and Campbell joined.

There was no issue of the TLJ Daily E-Mail Alert on Monday, July 2, Tuesday, July 3, or Wednesday, July 4, 2007.
Washington Tech Calendar
New items are highlighted in red.
Thursday, July 5

The House will not meet on July 2-6 due to the Independence Day District Work Period. It will return at 2:00 PM on Tuesday, July 10. See, House 2007 calendar.

The Senate will not meet on July 2-6 due to the Independence Day District Work Period. See, Senate 2007 calendar.

Friday, July 6

The House will not meet.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its Draft Special Publication 800-44 Version 2 [PDF] titled "Guidelines on Securing Public Web Servers".

Effective date of the rules changes contained in the Federal Communications Commission's (FCC) Memorandum Opinion and Order [PDF] in its proceeding titled "In the Matter of Facilitating Opportunities for Flexible, Efficient, and Reliable Spectrum Use Employing Cognitive Radio Technologies". This item responds to two petitions for reconsideration of the FCC's 2005 cognitive radio report and order submitted by Cisco Systems and Marcus Spectrum Solutions. This item is FCC 07-66 in ET Docket No. 03-108. See also, notice in the Federal Register, June 6, 2007, Vol. 72, No. 108, at Pages 31190-31192.

Monday, July 9

The House will not meet.

The Senate will return from its Independence Day recess at 2:00 PM. It will begin consideration of HR 1585 [LOC | WW], the defense authorization bill for FY 2008.

8:30 AM - 12:00 NOON. The Electronic Transaction Association (ETA) will host an event titled "Second Annual ETA Payments Education and Discussion Forum". The ETA states that this event "is designed to provide Congressional staff, regulators, and law enforcement with a working knowledge of the acquiring side of the electronic payments business. Topics will include an overview of the roles/responsibilities of entities in the payments system; the components of an electronic transaction; and industry efforts to protect cardholder data." See, notice [PDF] and program agenda [PDF]. For more information, and to RSVP, contact Rob Drozdowski at 202-828-2635 x203 or rob dot drozdowski at electran dot org. A continental breakfast will be served. There is no charge. Location: Columbus Room, Union Station.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in SRI International v. Internet Security, App. Ct. No. 2007-1065, a patent infringement case. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cybersettle v. National Arbitration Forum, App. Ct. No. 2007-1092, a patent infringement case. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Dolby Labs v. Lucent Technologies, App. Ct. No. 2006-1583, a patent infringement case. Location: Courtroom 201, 717 Madison Place, NW.

2:00 - 3:30 PM. The U.S. Chamber of Commerce's Coalition Against Counterfeiting and Piracy (CACP) will meet. For more information, contact counterfeiting at uschamber dot com or 202-463-5500. Location: U.S. Chamber, 1615 H St., NW.

Deadline to submit petitions to deny and initial comments to the Federal Communications Commission (FCC) regarding its review of the proposed merger of XM Satellite Radio Holdings and Sirius Satellite Radio. See, Public Notice [5 pages in PDF] (DA 07-2417).

Tuesday, July 10

The House will return from its Independence Day recess at 2:00 PM.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Nilssen v. Osram Sylvania, App. Ct. No. 2006-1550, a patent infringement case. The U.S. District Court (NDIll) held that the patents in suit are unenforceable for several reasons, including that Nilssen did not pay a large entity fee to the USPTO, but granted a non-exclusive license to a large corporation. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit comments to the Rural Utilities Service (RUS) in response to its notice of proposed rulemaking regarding its Rural Broadband Access Loan and Loan Guarantee Program. The RUS proposes to change its rules regarding funding in competitive markets and new eligibility requirements, new equity and market survey requirements, and new legal notice requirements. See, notice in the Federal Register, May 11, 2007, Vol. 72, No. 91, at Pages 26742-26759

Wednesday, July 11

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "From Imus to Industry: The Business of Stereotypes and Degrading Images  Hearing". The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "Wireless Innovation and Consumer Protection". The hearing will be webcast by the HCC. Location: Room 2322, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Toshiba v. Juniper Networks, App. Ct. No. 2006-1612, a patent infringement case involving telecommunications equipment. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch. The speaker will be Helen Domenici (Chief of the FCC's International Bureau). For more information, contact LeJuan Butler at lbutler at unfoundation dot org or 202-887-9040. Location: Harris Wiltshire & Grannis, 1200 18th St., NW.

2:30 - 4:00 PM. The Department of State's (DOS) Advisory Committee on International Communications and Information Policy (ACICIP) will meet. The agenda includes a "report on recent bilateral discussions with China's Ministry of Information Industries and with Mexico's Ministry of Communications and Transportation, as well as upcoming bilateral discussions with India's Ministry of Communications and Information Technology and with Brazil's Ministry of Communications; and also to report on recent developments regarding the President's Digital Freedom Initiative". See, notice in the Federal Register, June 14, 2007, Vol. 72, No. 114, at Page 32939. Location: Loy Henderson Auditorium, Harry Truman Building, 2201 C St., NW.

Day one of a two day event hosted by the Federal Trade Commission (FTC) titled "Spam Summit: The Next Generation of Threats and Solutions". See, FTC notice and Spam Summit web page. Location: FTC's satellite building conference center, 601 New Jersey Ave., NW.

Thursday, July 12

12:00 PM - 1:30 PM. The DC Bar Association will host a panel discussion titled "Dual-Use Export Control Regulations For China". The speakers will be Mario Mancuso (Under Secretary of Commerce for Industry and Security), Matthew Borman (Deputy Assistant Secretary for Export Administration), Peter Lichtenbaum (BAE Systems, Inc.), and Mary Peters (Hogan & Hartson). See, notice. For more information, call 202-626-3463. The price to attend ranges from $5 to $35. Location: Wiley Rein, 1776 K St., NW.

Day two of a two day event hosted by the Federal Trade Commission (FTC) titled "Spam Summit: The Next Generation of Threats and Solutions". See, FTC notice and Spam Summit web page. Location: FTC's satellite building conference center, 601 New Jersey Ave., NW.

? TIME? The Forum on Technology & Innovation (FTI) might host a forum. The FTI has a history of advertising events, and then canceling them without notice. Location?

Events Outside of Washington DC

Tuesday, July 10, and Wednesday, July 11. Two day conference hosted by the Federal Communications Commission (FCC) and others titled "DTV Transition and the NCE Radio Stations Workshop and Roundtable". See, FCC notice [8 pages in PDF]. Location: The Indian Pueblo Cultural Center, 2401 12th St., NW, Albuquerque, New Mexico.

Wednesday, July 11. 12:30 - 2:30 PM. The Progress & Freedom Foundation (PFF) and the Centre for European Policy Studies (CEPS) will be host a luncheon seminar titled "Online Privacy and Consumer Confidence: Regulatory Issues in the United States and Europe". The speakers will include Andrea Renda (CEPS, moderator), Alan Raul (Vice Chairman of the U.S. Privacy and Civil Liberties Oversight Board), Alain Brun, (Data Protection Unit at the European Commission), Cornelia Kutterer (Bureau of European Consumers), and Thomas Lenard (PFF). See, notice. Location: CEPS, 1 Place du Congrès, Brussels, Belgium.

People and Appointments

Rachel Brand6/29. Rachel Brand, Assistant Attorney General in charge of the Department of Justice's (DOJ) Office of Legal Policy (OLP), resigned, effective July 9, 2007. The OLP is involved in the selection and confirmation of federal judges. With Democrats in control of the Senate, and a Presidential election in 16 months, the Senate will likely confirm few judges until the 111th Congress convenes in 2009. See, DOJ release.

More News

7/5. The Federal Communications Commission (FCC) announced that its Joint Task Force on Media and Childhood Obesity will be "extended through the end of the summer". See, FCC release [PDF].

7/2. The Copyright Office (CO) announced in a release that "Response to our electronic Copyright Office eCO beta test announcement has been overwhelming, and we easily reached our target quota of potential beta testers. Consequently we are no longer accepting requests to participate in the beta test."

6/28. A grand jury of the U.S. District Court (DUtah) returned an indictment that charges Sami R. Harb and Michael Harb with operation of an obscene DVD distribution business and related offenses. The defendants reside and do business in Cleveland, Ohio. The prosecution is in Utah. The two operate a web site through which consumers can purchase DVDs. DVDs were sold and shipped to persons in Utah. The Department of Justice's (DOJ) release does not assert that the defendants sold any child pornography.

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