WASHINGTON-The Supreme Court this week will hear arguments in a case that could go a long way to determining how much privacy mobile-phone subscribers will have in the future.
The case, set for oral argument on Tuesday, pits wireless privacy against free speech. For the wireless industry, the stakes couldn’t be higher.
With wireless technology being embraced by more and more Americans, any loss of legal privacy protection could undercut consumer confidence in wireless devices at a time when the industry begins to integrate the Internet into its mix.
The case being heard by the nine justices is not the one most Americans are familiar with, the one involving allegations of illegal cell phone eavesdropping brought by Rep. John Boehner (R-Ohio) against Rep. James McDermott (D-Wash.).
The case attracted national attention because it involved disclosure in national newspapers of House GOP leaders strategizing how to deal in public with an expected settlement between then-House Speaker Newt Gingrich (R-Ga.) and the House Ethics Committee regarding alleged misconduct by Gingrich.
In that litigation, the federal appeals court here overturned a federal district court ruling that had thrown out Boehner’s 1998 lawsuit against McDermott.
In other words, the Court of Appeals for the District of Columbia Circuit ruled free speech did not trump wireless privacy. In April, McDermott petitioned the Supreme Court to review the case.
Instead, the high court took another wireless privacy case in which a federal appeals court in Philadelphia came to a different conclusion. The case was brought by Gloria Bartnicki, a Pennsylvania teachers union negotiator whose conversation on her cell phone was intercepted, recorded and aired on a local radio talk show in September 1993.
Litigation ensued and made its way up to the Third Circuit Court of Appeals, which said the radio station’s broadcast of a recording of Bartnicki’s cell phone conversation was protected by the First Amendment.
Specifically, the Third Circuit held that state and federal wiretap laws are unconstitutional if applied to the disclosure of illegally wiretapped communications by persons otherwise not involved in the illegal wiretapping.
Michael Carvin, a Boehner lawyer who also represents Texas Gov. George W. Bush in Florida presidential recount litigation, contends audio tapes of the House GOP leadership conference McDermott gave to the New York Times and several other newspapers, were illegally obtained and therefore not covered by the First Amendment.
The conversation-made possible because Boehner was using a cell phone-was intercepted by a radio scanner and recorded by a Florida couple affiliated with the Democratic Party. The Martins gave the tape to Rep. Karen Thurman (D-Fla.). Thurman steered John and Alice Martin to McDermott who was on the House Ethics Committee investigating Gingrich.
After it surfaced that McDermott was suspected of leaking contents of the GOP conversation, McDermott stepped down from the ethics panel. In 1997, the Martins pled guilty to violating federal wiretap law and each paid a $500 fine.
“The argument on the First Amendment is silly,” said Carvin.
The newspaper industry has interjected itself into the case, arguing in favor of the First Amendment. Carvin remains undaunted. “We don’t have a media defendant in our case.”
Carvin added the Supreme Court has placed tougher disclosure restraints on public officials than on ordinary citizens, which he believes does not bode well for McDermott.
Lawyers for McDermott did not return calls for comment.
