Supreme Court to Rule on Wiretap Case

The U.S. Supreme Court agreed on June 26 to decide whether a radio station may be subject to civil liability for broadcasting a tape of an illegally intercepted cellular phone conversation, when the station received the tape anonymously and played no part in the interception.

In Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999), cert. granted, 112 S.Ct. 2716 (2000), the U.S. Court of Appeals for the Third Circuit held that the Pennsylvania and federal wiretap statutes, which prohibit the "use" or "disclosure" of illegally intercepted communications, are unconstitutional as applied to parties who did not participate in or encourage the illegal interceptions.

The case could have significant implications for journalists, who are often presented with newsworthy information that was gathered - sometimes illegally - by those outside of their organization. The Supreme Court's ruling in the case is also important because it will determine the application of similar statutes on the books in 43 states and the District of Columbia. Minnesota is among these states. See Minn. Stat. §626A (1969). Bartnicki is the only free press case on the Supreme Court's docket for next term.

Bartnicki arose after an unknown party intercepted and taped a May 1993 cellular telephone call between Pennsylvania high school teacher Anthony Kane and Gail Bartnicki, chief negotiator of the local teachers' union. During the conversation, Bartnicki, discussing the school board's consideration of a proposed teacher pay raise, said, "If they're not going to move for three percent, we're gonna have to go to their, their homes … to blow off their front porches, we'll have to do some work on some of those guys."

A tape of the conversation was forwarded to Jack Yocum, president of the local taxpayers' association, who sent a copy to radio talk show host Frederick Vopper. Vopper broadcast excerpts of the taped conversation on his show.

Bartnicki and Kane filed suit in the U.S. District Court for the Middle District of Pennsylvania against Vopper, Yocum and the radio station under both state and federal wiretapping laws. See 18 Pa. Cons. Stat. §5701 et seq., and 18 U.S.C. §2510 et seq. Both statutes provide civil and criminal penalties for those who illegally intercept private communications, as well as for those who use or disclose the contents of those conversations "knowing or having reason to know" the information was obtained illegally.

The defendants argued that the statutes, as applied to their actions, infringed on their First Amendment free expression rights. After denying both plaintiff and defendant motions for summaryjudgment, Bartnicki v. Vopper, No. 94-1201 (M.D. Pa. June 14, 1996), the District Court certified this constitutional question to the Court of Appeals for the Third Circuit, which accepted review on Feb. 26, 1998. The Third Circuit found the relevant portions of the state and federal statutes to be unconstitutional as applied.

Attorneys for the federal government intervened in the case to defend the federal statute. They argued that the law serves the government's substantial interest in protecting the privacy of personal communications, and that by permitting these suits, the government was "eliminating the demand for intercepted materials on the part of third parties."

The court acknowledged the government's interest in protecting privacy, but said both the state and federal laws were "substantially broader than necessary" and would deter the media from disclosing even some legally obtained information. The government's interest in protecting the privacy of communications was outweighed by the speech interests of the defendants, the court held, and the government's interests could still be achieved through less restrictive means - specifically, by reserving penalties for those who intentionally intercept messages.

The court concluded that the wiretapping statutes could not constitutionally be applied against those who use or disclose illegally intercepted information without evidence that the defendants participated in or encouraged the interception.

On Dec. 24, 1999, two months before the Third Circuit's Bartnicki ruling, the Court of Appeals for the D.C. Circuit upheld the constitutionality of the federal wiretapping act in similar circumstances in Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999). Conflicts between the Bartnicki and Boehner rulings led to the Supreme Court's decision to review.

In Boehner, the D.C. Circuit Court held that U.S. Rep. James McDermott, D-Wash., could be found liable under the federal wiretapping act for distributing to news organizations tapes of an illegally intercepted conference call between U.S. Rep. John Boehner, R-Ohio, and several of his Republican colleagues, including former House Speaker Newt Gingrich. At the time, Gingrich was under investigation by the House Ethics Committee, which was chaired by McDermott. The Dec. 21, 1996, phone conversation was illegally intercepted and taped by a Florida couple. They eventually delivered the tape to McDermott's office, along with a letter explaining how they had accessed the conversation.

On March 9, 1998, Boehner sued McDermott for civil damages, but the U.S. District Court for the District of Columbia dismissed the claim, holding that application of the statute to McDermott violated the First Amendment by punishing the dissemination of truthful information. Boehner v. McDermott, No. CIV. 98-594 TFH., 1998 WL 436897 (D. D.C. July 28, 1998). The D.C. Circuit reversed and sent the case back to the District Court for trial. There was no First Amendment problem in this case, the D.C. Circuit Court held, because McDermott's distribution of the tape to the news media did not constitute "speech."

There are a few key distinctions between Boehner and Bartnicki that the Supreme Court will be likely to address:

· One of the defendants in Bartnicki is a news organization, and another is, by most definitions, a journalist. The Court will need to consider whether the constitutional standard should be different for media defendants, than for non-journalists like Rep. McDermott.

· In Bartnicki, the defendants did not know that the conversation had been illegally intercepted; in Boehner, the defendant apparently did. (McDermott has not yet conceded this fact, but the D.C. Circuit assumed it to be the case.) Whether that distinction is of constitutional significance is something the Supreme Court will have to resolve.

The Court's discussion may resolve a constitutional question that has been debated since the Pentagon Papers case three decades ago. See New York Times v. U.S., 403 U.S. 713 (1971). The Court never decided whether the Washington Post and New York Times could be punished for publishing the illegally procured Pentagon Papers. The Court's per curiam opinion dealt only with the constitutionality of prior restraints. Bartnicki may finally settle this question, and also provide some clearer guidelines for testing the constitutionality of restrictions on the dissemination of truthful information by both the press and the public.

Erik Ugland

 Information Revolution Brings Privacy Concerns

With the continuing computerization of government records and the development of sophisticated new database technologies, journalists should be in the midst of a government-access renaissance. But with the information revolution has come heightened fears that increased access will lead to excessive intrusions on personal privacy. Shielding the public from perceived violations of their privacy has become one of the principal preoccupations of state and federal lawmakers.

The Minnesota Legislature is no exception. It considered several privacy proposals in the 1999-2000 session. The proposals came from all directions - from Attorney General Mike Hatch, from the DFL Senate and House caucuses, and from House Republicans under their "Privacy Bill of Rights" banner. Although none of these proposals was passed last session, most are sure to reappear in the next session beginning in January 2001.

The U.S. Congress also passed several laws limiting public access to information in the name of privacy protection. A new federal law requires web sites collecting information on customers under age 13 to first obtain parental permission. More privacy legislation can be expected soon from Congress. Senate Democrats recently formed a Privacy Task Force to design measures to close off access to "personal information," and a bi-partisan Congressional Privacy Caucus was also formed to consider additional privacy legislation.

The White House has been working with the Federal Trade Commission to devise a regulatory scheme to govern the handling of personal information by commercial Web sites. And in March 1999, President Clinton appointed law professor Peter Swire to be the new White House "privacy czar."

The courts have for the most part endorsed these mounting restraints.

In its 1999-2000 term, the U.S. Supreme Court became the venue for two access-privacy battles. The Court decided Los Angeles Police Dept. v. United Reporting Publishing Corp., 120 S.Ct. 483 (1999) and Reno v. Condon, 120 S.Ct. 666 (2000), both of which rejected constitutional challenges to access restrictions.

In LAPD, the Court considered whether a California law prohibiting the release of police blotter information to those using the information for a "commercial" purpose violates the First Amendment. The law permits access to this information only when used for a "scholarly, journalistic, political or governmental purpose."

The Court ruled (7-2) that because the government is not constitutionally compelled to provide access to its records, the limitations imposed do not raise a First Amendment problem. In fact, the Court said the government could deny access to arrest information altogether without violating the First Amendment. The Court also sanctioned a system of discriminatory access. Although journalists were included in the favored class of requestors under California law, they might not be in other legislation. Many journalists reject laws giving them a special status because they require the government to determine who is and who is not a journalist.

In Reno, Congressional authority to dictate state records policy was the issue before the Court. The Driver's Privacy Protection Act, passed by Congress in 1994, regulates the release of driver information collected by states through their licensing and registration processes. South Carolina challenged the law as an infringement of states' rights under the 10th Amendment.

The Supreme Court unanimously ruled that because the DPPA regulates the sale of data, the Commerce Clause enables Congress to regulate its dissemination. The Court rejected the states' rights argument, saying the DPPA regulates states only as owners of databases; it does not intrude on their "sovereign capacity to regulate their own citizens."

Reno affirmed the federal government's dominion over the sale of all government records, raising concern that access-friendly state laws are now at risk of being overrideen by federal restrictions.

While the DPPA case was pending before the Supreme Court, Congress passed an amendment to the law, which provides specific penalties for states that grant access to individuals' motor vehicle records without their consent. Commonly referred to as the Shelby amendment, this legislation changed the law from an "opt-out" to an "opt-in" system. "Opt-out" means records are presumptively open to the public, unless the individual record subject objects. "Opt-in" means records are closed, unless the subject affirmatively consents to their release. The Shelby amendment provides that states will be fined up to $5,000 for each day they are in violation of the law.

In January 2000, Minnesota Sen. Leo Foley introduced a bill to require state government compliance with the Shelby amendment. But after considering the policy issues involved, the extent to which the law intrudes on the state's autonomy, and the fact that the state makes more than $10,000 a day by selling motor vehicle records, the Senate Data Practices subcommittee amended its bill to require compliance only if the federal government begins imposing fines. The amended bill was never considered by the full Senate before the end of the session in May 2000.

Nevertheless, on July 6, 2000, Minnesota Commissioner of Public Safety Mike Weaver took what appears to be an unprecedented step by ignoring the sentiments of the Legislature and unilaterally mandating Shelby compliance as of August 1, 2000. The impact of implementation of this policy on journalists may be insignificant, however. In practice, Minnesota journalists have been treated as exempt from the DPPA under a "catch all" exemption that allows access for those whose use of motor vehicle information promotes highway safety. Because the Department of Public Safety has said in the past that journalists qualify under that exemption, Weaver's action may have little practical effect on them, although it will largely shut out access by the general public.

More than a dozen privacy initiatives were introduced by legislators in the last session. Among the most comprehensive was the Attorney General's proposal that would have restricted the release of customer data by banks, phone companies, telemarketers and medical companies absent customer consent.

Broad bi-partisan support for additional privacy legislation, acquiescence by the courts and public support sugget that the government's movement to reshape the balance between privacy and access may have only just begun.

Erik Ugland

Congress' latest effort to shield minors from "harmful" Internet content was struck down on June 22 by the U.S. Court of Appeals for the Third Circuit in ACLU v. Reno (Reno III), No. 99-1324, 2000 WL 801186 (3d Cir. June 22, 2000). In doing so, the appellate court may have thwarted future efforts by lawmakers to regulate obscenity on the Internet.

In Reno III, the Court upheld a district court injunction preventing enforcement of the Child Online Protection Act. Congress passed COPA after an earlier attempt to restrict minors' access to certain Internet content - the Communications Decency Act - was struck down by the U.S. Supreme Court in Reno v. ACLU, 521 U.S. 844 (1997) (Reno II). The Supreme Court held that the CDA's imposition of criminal penalties for the distribution of "indecent" and "patently offensive" content was vague and overbroad. Congress sought to remedy the deficiencies of the CDA by linking the penalties under COPA to Internet content that is "harmful to minors" as judged by "community standards."

Congress' attempt to create a more definitive standard was rejected by the Third Circuit. It held that COPA is a content-based regulation of speech, which under the First Amendment can only be upheld when narrowly tailored to serve a compelling government interest. Although conceding the government's interest in preventing harm to minors, the court said that by relying on community standards to determine what is harmful, the law was overbroad and burdened more speech than necessary.

The court held that community standards cannot be determined in the Internet context, because speech in that medium is not bound by geography. In order to comply with COPA, communication on the Internet would have to conform to the standards of the least tolerant segments of society. That imposes too great a burden on expression, the Court held.

By rejecting the applicability of community standards to the Internet, the Third Circuit has created a substantial roadblock to all future attempts to regulate Internet obscenity. The Supreme Court outlines its test for defining obscenity in Miller v. California, 413 U.S. 15 (1973). Miller requires that obscenity be determined by considering the view of "the average person applying contemporary community standards." If community standards for Internet communication cannot be defined, as the Third Circuit says, then the Miller test cannot be applied and obscenity cannot be defined. What cannot be defined cannot be regulated.

The Third Circuit Court made clear that its rejection of the community standards test was limited to the Internet context and should not be read as an assault on Miller or on the need to define and regulate obscenity in other contexts. However, if regulation of obscenity is prohibited in what is certain to become the most dominant communications medium, it may create pressure to lift restrictions in other contexts. Even if restrictions on obscenity survive in other areas, they may be of little practical effect if the expression they target can simply be channeled - whether as text, audio or video - through the Internet.

Ultimately, the Supreme Court will need to decide whether to end its long struggle to define obscenity, or to create an Internet-specific Miller test that accounts for the boundless geographic reach of online communication.

Erik Ugland