WASHINGTON-In a victory for the wireless industry and a blow to free-speech advocates, a federal court here has revived a high-profile cell-phone eavesdropping lawsuit by Rep. John Boehner (R-Ohio) against Rep. James McDermott (D-Wash.).
McDermott leaked the contents of a GOP conference call-via Boehner’s cell phone-that a Florida couple overheard on a radio scanner and taped in December 1996.
The 2-1 decision by the U.S. Court of Appeals for the District of Columbia District overturns last year’s ruling by U.S. District Judge Thomas Hogan, who dismissed Boehner’s lawsuit on First Amendment grounds. The ruling severely weakened wireless privacy legal protections.
It is unclear whether the wireless eavesdropping-free speech issue will percolate up to the Supreme Court.
“The congressman is disappointed in the [Sept. 24] ruling and we’re evaluating our options,” said Chris Landau, a McDermott attorney.
The Washington Post intervened in the case in support of McDermott; the Justice Department backed Boehner. Boehner is seeking statutory damages of $10,000 against McDermott.
“It confirms our view of the importance of the privacy statute,” said Michael Altschul, general counsel, Cellular Telecommunications Industry Association. “The appeals court got it exactly right.”
The House, prompted by CTIA lobbying, voted earlier this year to strengthen the wireless privacy law. But a companion bill has yet to emerge in the Senate.
A 1986 law prohibits the intentional interception of wireless calls and other communications, and bans the disclosure of the contents of such communications by an individual if the person knows the information was illegally obtained.
John and Alice Martin, who are Democrats, approached Rep. Karen Thurman (D-Fla.) to discuss receiving immunity for the illegally intercepted call on Boehner’s wireless phone. Thurman then pointed the Martins to McDermott, who at the time was the ranking Democrat on the House ethics panel that was investigating alleged ethical wrongdoings by former House Speaker Newt Gingrich (R-Ga.). The Martins later were fined $500 each.
McDermott, before stepping down from the House Ethics Committee, subsequently gave copies of the tape to The New York Times, The Atlanta Constitution and Roll Call, a Capitol Hill paper. The newspapers ran stories that proved highly embarrassing to House Republicans inasmuch as the GOP call involved political strategy for dealing with a reprimand and fine the House was about to level against Gingrich.
“Not only was the transaction in which McDermott obtained the tape … illegal-albeit only the Martins could be punished for effectuating it-but McDermott knew the transaction was illegal at the time he entered into it,” stated Judge Raymond Randolph, who wrote for the majority, joined by Judge Douglas Ginsburg in the opinion.
The court played down First Amendment protections that McDermott relied on for his defense, focusing more on the lawmaker’s conduct than on the content of the intercepted call.
“We’re obviously very gratified. It confirms the First Amendment doesn’t protect stolen information and that Congressman McDermott is not above the law,” said Michael Carvin, a lawyer for Boehner.
Judge David Sentelle, who dissented from the majority decision, disagreed. “I do not see how we can draw a line today that would punish McDermott and not hold liable for sanctions every newspaper, every radio station, every broadcasting network that obtained the same information from McDermott’s releases and published it again,” said Sentelle.
