WASHINGTON-The U.S. Supreme Court in a 6-3 ruling said last week that restricting the broadcasting or publication of an illegally intercepted cellular-phone conversation violated the First Amendment because the contents of the call were of public significance.
The Cellular Telecommunications & Internet Association said the decision was narrow enough to keep in place the privacy protections of private individuals involved in private conversations.
“We lost, but the scope of the decision was narrowed so as to limit its applicability and continue privacy protection,” said Michael F. Altschul, CTIA senior vice president and general counsel.
Far-reaching implications
The case involved the broadcast of an illegally taped cell-phone conversation between two union negotiators in a contentious labor dispute in Pennsylvania. It has been closely watched because of its potential impact on both wiretap laws and a lawsuit involving former House Speaker Newt Gingrich (R-Ga.).
The case comes from the U.S. Court of Appeals for the 3rd Circuit, which ruled in 1999 that two radio stations and some newspapers were protected from being sued for publishing and broadcasting the contents of an intercepted phone call.
This was the opposite ruling from the U.S. Court of Appeals for the District of Columbia, which said the Electronic Communications Privacy Act of 1986 prohibited the interception of mobile-phone conversations and the dissemination of that information was unlawful. The D.C. Circuit case was held at the Supreme Court pending resolution of the 3rd Circuit case. It is now expected the case will be sent back to the D.C. Circuit, said Michael Carvin, attorney for Rep. John A. Boehner (R-Ohio).
Boehner, then chairman of the House Republican Conference, was using a cellular phone in Florida during a conference call with Gingrich and other Republican leaders. Even though the others on the conference call were using wireline phones, John and Alice Martin could hear everyone on the call on their radio scanner because of Boehner’s cellular link.
The Martins, who have ties to the Democratic party, turned the tape over to Rep. Karen Thurman (D-Fla.) who gave it to Rep. Jim McDermott (D-Wash.), then ranking Democrat on the House Ethics Committee investigating Gingrich. The conference call involved strategy planning to deal with ethics violations against Gingrich.
McDermott subsequently gave copies of the tape to The New York Times, which broke the story on its Jan. 13, 1997, front page. Boehner sued McDermott for breach of privacy.
Carvin said Boehner’s case is different than the one decided last week by the Supreme Court because although the court said the information could be broadcast or published, the person giving it to the news media was a private person, while McDermott is a public figure.
“McDermott was a public official in a sensitive public position while the defendants in [the 3rd Circuit case] were all private citizens,” said Carvin.
McDermott’s spokeswoman, Heather Foley, said the congressman would not be commenting on the Supreme Court’s decision.
3rd Circuit details
The circumstances of the 3rd Circuit case go back to 1993 and a contentious labor dispute in Pennsylvania that received significant local media attention. Gloria Bartnicki, a union negotiator for the Wyoming Valley West School District Teachers’ Union, was talking to Anthony F. Kane Jr. on her cellular phone.
The contents of the call, which outlined whether the union should accept a 3-percent pay raise or keep pressing for 6 percent and which included veiled threats, were taped. The tape was delivered anonymously to the mailbox of Jack Yocum, who gave it to a radio talk show host. The radio talk show host and the newspapers, which also reported the events, did not know who intercepted the call. To this day, no one has been convicted of intercepting the call.
Bartnicki sued Yocum and the radio stations for unspecified damages, saying she felt violated when 100,000 people overheard her private conversation.
The case did not dispute that intercepting the call seems to violate both Pennsylvania state wiretapping law and ECPA, but rather whether allowing news organizations to publicize the contents is wrong. The court said it is not.
CTIA entered the case on Bartnicki’s side, fearing that if people believe their wireless-phone conversations can be illegally taped and then broadcast or published, people may stop wanting to subscribe to cellular service. Three justices in their dissent used this argument.
“The chilling effect of the court’s decision upon these private conversations will surely be great,” said Chief Justice William H. Rehnquist writing for Justices Clarence Thomas and Antonin Scalia.
The circumstances surrounding both the conversation involving Bartnicki and the conversation involving Gingrich would be nearly impossible now since CTIA reports that 70 percent of all cellular subscribers use digital technology which is, at present, impossible to tape from the air. Digital technology has become so pervasive that on May 17 the Federal Communications Commission proposed to remove the analog set-aside rule, which could lead to the eventual elimination altogether of analog technology.
