Supreme Court Diminishes Electronic Privacy

May 21, 2001. The Supreme Court of the United States issued its opinion [PDF] in Barnticki v. Vopper, holding that a radio host cannot be sued for playing an audio recording of a cellular telephone conversation, despite a federal statute which made illegal both the interception of the conversation, and its disclosure by the radio host. 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.

Statute: 18 U.S.C. 2511 provides criminal and civil liability for any person who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication" or who "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".

Facts: Bartnicki used a cell phone in her car to talk with Kane. An unidentified person intercepted and recorded that conversation, in violation of federal wiretapping law. Vopper, a radio commentator, obtained and played a tape of the intercepted conversation on his public affairs talk show, also in violation of the statute. The conversation pertained to ongoing collective bargaining negotiations between a teachers' union and the local school board. Bartnicki was the union's chief negotiator. Bartnicki and Kane filed a complaint in U.S. District Court for violation of Section 2511. Vopper asserted his actions constituted constitutionally protect speech.

Majority Opinion: 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. Justice Breyer wrote a concurring opinion, in which Justice O'Connor joined.

Dissent: Chief Justice Rehnquist wrote a dissenting opinion, in which Scalia and Thomas joined. "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."