Possession and publication

Journalists should be aware that wiretap laws raise issues beyond just whether they have met consent requirements. The federal law and many state laws explicitly make it illegal to possess — and particularly to publish — the contents of an illegal wiretap, even if it is made by someone else. Some states that allow recordings make the distribution or publication of those otherwise legal recordings a crime.

The 1986 Electronic Communications Privacy Act (amending the federal wiretap law) makes it illegal to possess or divulge the contents of any illegally intercepted communication.

The U.S. Supreme Court ruled in May 2001 that several media defendants could not be held liable for damages under the federal statute for publishing and broadcasting information obtained through an illegal interception of a private conversation.

The case arose from a cell-phone conversation in Pennsylvania about contract negotiations for local school teachers. During the conversation, Anthony Kane Jr., president of the local teachers union, told Gloria Bartnicki, a union negotiator, that if teachers demands were not met, "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." While Bartnicki and Kane spoke, an unknown person illegally intercepted the call, and a tape recording was left in the mailbox of a local association leader. The association leader gave a copy of the tape to two radio talk show hosts, who broadcast the tape as a part of a news show. Local television stations also aired the tape, and newspapers published transcripts of the conversation.

Bartnicki and Kane sued some of the stations and newspapers that had disclosed the contents of the tape. The case made its way to the Supreme Court, which found that First Amendment principles trumped the privacy concerns of the union leaders.

In ruling that disclosure of a matter in the public interest outweighed claims of privacy, the majority of the Court supported "a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open." The majority explained that those who participate in public affairs have a diminished expectation of privacy, especially when they propose to carry out wrongful conduct.

The case was a significant win for the media, but its implications for newsgatherers are not yet entirely clear. The Court s decision was premised on three factors: the media did not engage in or encourage the illegal recording, the topic of the intercepted conversation was of public concern, and the conversation involved proposed criminal acts. The Courtdid not indicate whether disclosure by the media under different circumstances would be considered legal. (Bartnicki v. Vopper)

A case pending in federal court in D.C. involving two U.S. Congressmen may shed some light on this question. In 1996, Rep. James McDermott (D-Wash.) leaked to the media a recording of a phone call between Rep. John Boehner (R-Ohio) and other House Republicans about the ethics problems facing then-House Speaker Newt Gingrich. The tape was given to McDermott by a Florida couple who illegally taped the conversation. The couple pleaded guilty to wiretap charges and paid a fine. Boehner sued McDermott, alleging the leak violated the federal wiretap law because McDermott disclosed information he knew was obtained unlawfully.

The lawsuit went to the Supreme Court at the same time as the Bartnicki case. Rather than resolve the case, the Court ordered that the U.S. Court of Appeals in Washington (D.C. Cir.) re-evaluate Boehner s case in light of its Bartnicki decision. The Court of Appeals allowed Boehner to amend his lawsuit and argue it again. The case was still pending as of January 2003.

Although Boehner did not sue any member of the media, a decision in the case may shed light on the legality of disclosing the contents of an illegally taped conversation where the conversation does not involve threats of violence. (Boehner v. McDermott)

Published Winter 2003. © The Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 1100, Suite 900, Arlington, VA 22209. (703) 807-2100