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The U.S. Supreme Court grabbed the tiger by the tail and recently grappled with the extremely difficult issue of whether First Amendment free speech protections allow the disclosure of intercepted private communications. Ultimately, the high court held that in the particular circumstances of the case it was considering, Bartnicki v. Vopper, free speech trumped privacy concerns and disclosure was permissible. Still, the majority, concurring and dissenting opinions all make some valid points, and the “right” result is far from clear. ‘BARTNICKI’ FACTUAL BACKGROUND In the early 1990s, a union representing teachers at a Pennsylvania high school engaged in collective bargaining negotiations with the local school board. The chief negotiator for the union used the cellular phone in her car and had a lengthy conversation with the president of the union about the status of the negotiations. An unidentified person intercepted and recorded this phone call. In the phone conversation, the chief negotiator and the president of the union discussed the timing of a proposed strike and the need for a dramatic response to the board’s intransigence. At one point in the conversation, the union president stated: “If they’re not gonna move for three percent, we’re gonna have to go their, their homes … to blow off their front porches, we’ll have to do some work on some of those guys … .” Thereafter, a radio commentator, who had been critical of the union in the past, played the tape of the intercepted conversation on his public affairs talk show. Another station also broadcast the tape, and local newspapers published its contents. It turned out that the radio commentator had obtained the tape of the conversation from the head of a local taxpayer’s organization that had opposed the union’s demands throughout the negotiations. The head of the local taxpayer’s organization had found the tape in his mailbox soon after the interception of the call and he had recognized the voices of the union president and chief negotiator. LEGAL BACKDROP Congress passed the Title III of the Omnibus Crime Control and Safe Streets Act in 1968. Title III defined five offenses punishable by a fine of not more than $10,000, by imprisonment of not more than five years, or both. Of the five offenses, the one most directly at issue in the Bartnickicase is the one that applies to any person who willfully discloses the contents of any intercepted wire or oral communication uttered by a person who expected that the communication would be private. As enacted in 1968, Title III did not apply to the monitoring of radio transmissions. However, the Electronic Communications Privacy Act of 1986 enlarged the coverage of Title III to prohibit the interception of electronic as well as oral and wire communications. As a result of that amendment and a 1994 amendment that applied to cordless telephone communications, Title III presently applies to the interception of conversations over cellular and cordless phones. THE STARTING LINE Before embarking on its analysis of the case, the Supreme Court accepted certain assumptions as true. First, the Court accepted that the interception of the phone call was intentional, “and therefore unlawful.” Accordingly, the disclosure of the contents of the intercepted conversation “violated federal and state statutes.” Thus, under the law, the union president and chief negotiator were entitled to recover damages, unless “application of these statutes in such circumstances violates the First Amendment.” In seeking to answer whether application of the law violates the First Amendment, the Supreme Court further assumed as true that the radio commentator and other media did not participate in the illegal interception. Instead, they learned about the interception after it occurred and never found out the identity of who actually intercepted the call. Moreover, the access by the media to the information on the tape was “obtained lawfully, even though the information itself was intercepted by someone else.” Finally, “the subject matter of the conversation was a matter of public concern.” THE MAJORITY OPINION Justice Stevens delivered the majority and controlling opinion for the Supreme Court. The majority opinion principally addresses deterrence and privacy arguments made in favor of upholding the interception laws in this case. The majority opinion swats away the deterrence argument rather quickly and fairly effectively by disputing that “punishing disclosures of lawfully obtained information of public interest by one not involved in the initial illegality is an acceptable means of serving those ends.” Indeed, “it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party.” However, the majority opinion acknowledges that it has a more difficult time dealing with the “stronger” privacy argument, as “privacy of communication is an important interest.” The majority opinion goes on to extol the virtues of privacy: “[T]he fear of public disclosure of private conversations might well have a chilling effect on private speech. In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one’s speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.” After making a very convincing case for privacy, the majority opinion then goes on to find that “some intrusions on privacy are more offensive than others,” and that “privacy concerns give way when balanced against the interest in publishing matters of public importance.” Thus, “one of the costs associated with participation in public affairs is an attendant loss of privacy.” At the end of the day, the majority opinion upholds the media’s disclosure of the contents of the intercepted cellular phone call because “a stranger’s illegal conduct does not suffice to remove the First Amendment shield about a matter of public concern.” Query, however, whether a local debate about compensation for teachers truly is a matter of such public concern that it warrants overriding federal and state interception laws. Even the majority opinion refers to the debate as “mundane.” THE CONCURRING OPINION Justice Breyer delivered the concurring opinion, which joins in the majority opinion, but which emphasizes the “unusual public concern, namely a threat of potential physical harm to others.” The concurring opinion references the suggestion about blowing off front porches in the intercepted communication, and expresses “concern for the safety of others.” The concurring opinion notes that “where publication of private information constitutes a wrongful act, the law recognizes a privilege allowing the reporting of threats to public safety.” Thus, the public interest in defeating any privacy expectations is “unusually high.” While it is true that safety concerns certainly raise public interest in the content of the intercepted call and probably reduce privacy considerations, perhaps a better approach could be developed such that under these types of circumstances specific safety concerns could be reported to law enforcement authorities, as opposed to allowing media revelations of private intercepted communications. THE DISSENTING OPINION Chief Justice Rehnquist delivered the dissenting opinion for the Supreme Court, which disagrees with the controlling holding of the majority opinion which was also joined by the concurring opinion. The dissenting opinion begins with broad, and frankly appropriate, concerns about privacy in the new technological age: “Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances … raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations.” The dissenting opinion then notes that in this climate the federal government and 40 states have enacted laws prohibiting the intentional interception and knowing disclosure of electronic communications. The dissenting opinion expresses worry that the majority opinion declares that each of these laws violates the First Amendment to the extent illegally intercepted communications involve matters of public concern — “an amorphous concept.” The dissenting opinion makes the ironic point that the majority opinion might actually stifle free speech by “chilling the speech of millions of Americans who rely upon electronic technology to communicate each day.” The dissenting opinion concludes by finding that “the interest in individual privacy at its narrowest must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations.” This truly is food for thought. IMPACT Federal and state laws prohibit intentional interception and disclosure of electronic communications. However, the Supreme Court’s majority opinion in Bartnickiallows public interests in disclosure to be weighed against privacy concerns when free speech rights are implicated by the contents of electronic communications. Bartnickiwas decided under its own facts. It remains to be seen how the balancing test will evolve as further cases are decided with different fact patterns. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.

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