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Congressman violated law by accepting audiotape

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    News Media Update         WASHINGTON, D.C.         Privacy    

Congressman violated law by accepting audiotape

  • A U.S. district court judge ruled that Rep. James McDermott (D-Wash.) violated the federal wiretap law for knowingly accepting a recording of an illegally intercepted private phone call.

Aug. 23, 2004 — Individuals who accept illegally intercepted tape recordings can be held liable under federal wiretap laws if they know the tapes were illicitly obtained, a federal district judge ruled in a case between two congressmen over a taped conversation.

Chief Judge Thomas F. Hogan of U.S. District Court in Washington, D.C., found on Aug. 20 that Rep. James McDermott (D-Wash.) participated in an illegal transaction for accepting an audiotape from a Florida couple with the knowledge that it had been illegally recorded.

Hogan cited the 2001 U.S. Supreme Court decision Bartnicki v. Vopper , in which the Court held that where information of public importance is illegally intercepted, the federal wiretap law is unconstitutional as applied to a third party who lawfully receives the intercepted information and discloses it to the media.

Finding that McDermott “knew he was receiving a tape recording that had been illegally obtained,” Hogan held that McDermott’s First Amendment defense must fail because the information was not lawfully received.

The case arose after a couple in Florida recorded a cell phone conversation between Rep. John Boehner (R-Ohio), then-Speaker of the House Newt Gingrich and other House Republican leaders discussing potential responses to a House Ethics Committee probe of Gingrich. The couple, Alice and John Martin, delivered the tape in January 1997 to McDermott, who was then the ranking Democrat on the House Ethics Committee.

The tape was accompanied by a note explaining that the tape contained “a conference call heard over a scanner.” McDermott gave copies of the tape to The New York Times and the Atlanta Journal-Constitution the next day. The Times ran the story on the front page of its Jan. 10 edition.

Boehner brought suit against McDermott in 1998 under provisions of the federal wiretap law, which prohibits the interception and disclosure of private telephone conversations. The Martins pleaded guilty in 1997 to unlawfully intercepting a phone conversation and paid $500 each in fines.

In late-July 1998, Hogan dismissed Boehner’s claim against McDermott for civil damages, concluding that McDermott’s receipt of the tape recording did not violate wiretapping laws. Those laws, Hogan held, prohibit only interception and disclosure. He added that disclosure of the tape to the news media was also protected by the First Amendment.

A three-judge panel of the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) reversed that decision and sent the case back for trial in September 1999. The appeals panel held that by accepting a recording of the illegally intercepted telephone conversation, McDermott voluntarily assumed a “duty, if not of ‘confidentiality,’ then of nondisclosure.” The appeals panel also found that the federal wiretap laws did not violate First Amendment principles of free press and free speech under the circumstances presented to it.

In 2001, the Supreme Court vacated the judgment of the Court of Appeals and remanded the case in light of its decision in Bartnicki. The Court of Appeals remanded the case back to Hogan.

Hogan set a hearing date of Sept. 16 to decide whether Boehner should be awarded punitive damages and attorney’s fees.

(Boehner v. McDermott; Counsel: Frank Cicero Jr., Kirkland & Ellis, LLP, Chicago) KM

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