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State Supreme Court rejects challenge to state wiretapping law

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  1. Libel and Privacy

    NMU         INDIANA         Privacy         Nov 21, 2000    

State Supreme Court rejects challenge to state wiretapping law

  • The justices reinstated a felony charge against a man who taped his estranged wife’s telephone conversations.

The Indiana Supreme Court ruled on Nov. 3 that the state’s wiretapping statute was constitutional even though the court acknowledged inconsistent language in the law. The court rejected three constitutional challenges to the Indiana Wiretap Act.

John Lombardo was charged with violating the law in 1998 after he surreptitiously recorded his estranged wife’s telephone calls. The trial court dismissed the charge calling the law unconstitutionally vague because it did not clearly define the prohibited conduct and a person of ordinary intelligence could not understand the law. A violation of the statute constitutes a felony.

On appeal, the state high court held that under any interpretation of the statutory language, a reasonable person would know that Lombardo’s acts were unlawful. Lombardo had argued the construction of the law contained contradictory requirements of the degree of culpability required to violate the law. Therefore, Lomardo argued, a reasonable person would not know what conduct the law prohibited.

The court recognized the error in draftsmanship and agreed to hereafter construe an intentional standard of conduct.

Lombardo also argued that the law did not penalize a recording by tape, only recordings by a computer or facsimile. The court disagreed and held an interception could be accomplished “by means of any instrument, device, or equipment.”

Finally, Lombardo challenged the constitutionality of the law because it incorporated federal law as an exception. But, the federal courts are divided on key issues, such as whether the federal act outlaws intercepting telephone communication of one’s spouse in the marital home. Lombardo argued the unsettled interpretation of the federal law made the state law vague. The court held the section of the state law incorporating the federal wiretap act serves to provide the exemption required by the Supremacy Clause and is not a wholesale incorporation of all of the federal law.

(Indiana v. Lombardo; Defendant’s Counsel: Robert Forbes, Hartford City, Ind.) DB

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