WASHINGTON-The Supreme Court last week agreed to decide whether individuals who divulge illegally intercepted electronic communications are as liable as eavesdroppers themselves, setting a showdown between free speech and wireless privacy.
The case has major implications for the wireless industry, which has aggressively fought in recent years for stronger privacy laws for the nation’s 90 million mobile phone subscribers. A decision that favors free speech over telephone privacy would be a severe blow to wireless security.
The Supreme Court will review a decision made last December by a federal appeals court in Philadelphia, which rejected as unconstitutional federal and Pennsylvania wiretap laws.
The case was brought by Gloria Bartnicki, a Pennsylvania teacher’s union negotiator whose conversation from her cell phone was intercepted, recorded and aired on a local radio talk show in September 1993. Both Bartnicki and the Clinton administration sought a review by the high court.
While the Third Circuit Court of Appeals ruled against Bartnicki, saying the radio station that aired the intercepted telephone conversation was protected by the First Amendment, the Court of Appeals for the District of Columbia Circuit came to a markedly different conclusion in a politically high-profile eavesdropping case pitting Rep. John Boehner (R-Ohio) against Rep. James McDermott (D-Wash.).
In that litigation, the appeals court here overturned a federal district court ruling that threw out Boehner’s 1998 suit against McDermott. Boehner’s suit is seeking $10,000 in statutory damages.
In April, McDermott asked the Supreme Court to review the case.
Boehner, then-chairman of the House Republican Conference, claimed McDermott gave several major newspapers audio tapes of a December 1996 conference call among several GOP House leaders about how to deal in public with an expected settlement between then-House Speaker Newt Gingrich (R-Ga.) and the House Ethics Committee over alleged misconduct.
The GOP conference call, in which Boehner participated in via his cell phone while vacationing in northern Florida, was overheard and recorded by a Florida couple. John and Alice Martin gave the taped GOP conference call to Rep. Karen Thurman (D-Fla.) and discussed with her the prospect of getting immunity from illegally intercepting the call.
Thurman pointed the Martins to McDermott, who at the time sat on the House Ethics Committee that was investigating Gingrich. McDermott later stepped down from the panel. In 1997, the Martins pled guilty, and each paid a $500 fine.
“I think it will have a big impact,” said Christopher Landau, a lawyer for McDermott, referring to the Supreme Court’s decision to review the Pennsylvania mobile phone privacy case.
The Cellular Telecommunications Industry Association and Boehner’s office did not return calls for comment.
