WASHINGTON-A federal court ruling has exposed a huge loophole in the wiretap law, one that gives wireless consumers far less protection from eavesdropping than industry officials and government policy makers have led the public to believe to date.
U.S. District Judge Thomas Hogan recently ruled the First Amendment can trump wireless privacy protection.
The case at issue involved the interception of a conference call in which House Speaker Newt Gingrich (R-Ga.) and other GOP leaders plotted strategy to deal with ethics violations a congressional committee was to cite against the speaker.
Rep. John Boehner (R-Ohio), chairman of House Republican Conference, was using his cellular telephone in Florida during the GOP skull session. A Florida couple with Democratic sympathies, John and Alice Martin, picked up the GOP conversation on their scanner.
The Martins gave a tape of intercepted GOP call to their representative, Rep. Karen Thurman (D-Fla.). Thurman and aides to House Minority Whip David Bonior (D-Mich.) discussed the tape, and Thurman later advised the Martins to give it to McDermott, a member of the ethics panel probing Gingrich at that time.
When the matter became public and controversial McDermott surrendered his House Ethics Committee seat.
McDermott subsequently gave copies to the tape to The New York Times, The Atlanta-Journal Constitution and Roll Call and possibly to other media outlets. The Times broke the story on the Jan. 13, 1997, front page, causing great embarrassment to Gingrich and his colleagues.
After a Justice Department probe, the Martins were charged with misdemeanors for illegally intercepting the cellular telephone call and fined $500 each.
Boehner sued McDermott in March 1998, arguing the 1986 electronic communications privacy act bans the intentional disclosure of wireless, wireline or other electronic communications that have been illegally intercepted.
However, Judge Hogan concluded “the First Amendment prevents the government from punishing the disclosure of truthful, lawfully obtained information of public significance” and McDermott escaped prosecution.
Jamin Raskin, a constitutional law professor at American University in Washington, D.C., said Hogan made the right call.
“It is a fairly universal principle in law that if people come into possession of evidence illegally they can do what they want with it,” said Raskin.
Indeed, taped conversations that possibly violate Maryland’s wiretap law triggered revelations about President Clinton’s “inappropriate relationship” with former White House intern Monica Lewinsky.
“The bottom line is that if you don’t want to be recorded, don’t talk on the telephone,” said Raskin.
At the same time, Hogan’s 15-page opinion was laced with reservations that Boehner’s lawyers likely will latch onto in their appeal.
“The wiretap statutes appear to contemplate that the taped conversation in this case was unlawfully obtained, since it was stolen in a most unscrupulous, underhanded fashion,” said Hogan. “Logic suggests that a criminal cannot launder the stains off illegally obtained property simply by giving it to someone else, when that other person is aware of its origins.
“The First Amendment case law does not seem to adopt this logic, however, and it suggests that information, even if initially garnered through illegal means, is lawfully obtained by anyone who did not himself break the law to obtain it,” stated Hogan. “Although the court finds this interpretation illogical, and, even worse, suspects that it effectively undermines the protection that wiretap statutes supposedly afford, the court is bound to accept and follow it.”
Ted Cruz, an attorney for Boehner, said the ruling “dilutes the [wiretap] statute into nothingness.”
The Cellular Telecommunications Industry Association, which is pursuing legislation in Congress to crack down on scanners capable of being modified to intercept cellular calls, said it did not wish to comment at this time.
