Electronic Surveillance Issues

Electronic

Surveillance

Issues

November 2005

Stephen L. Harwood

Senior Counsel

Office of Enforcement Operations

Criminal Division

Department of Justice

Table of Contents

Legislation ...................................................................1

Legislative History.......................................................1

Congressional Policy Role.................................................1

Interstate Commerce Standard..............................................1

Justice Department Policy .......................................................3

Attorney General Guidelines ...............................................3

Warrantless Access to Communications ............................................4

Interception by Service Provider ............................................4

Switchboard Operator ....................................................5

Access to Stored Communications by Service Provider . . . . . . . . . . . . . . . . . . . . . . . . . . 5

"MUD" Use by Service Provider ............................................8

Telephonic "Ordinary Course of Business" Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Telephonic “Ordinary Course” of Law Enforcement Duties Exception . . . . . . . . . . . . . 11

Workplace Searches.....................................................13

Consensual Monitoring ..................................................14

Conflicting State Laws...................................................21

"Party to the Communication" under 18 U.S.C. 2511(2)(c) and (d) . . . . . . . . . . . . . . . . 21

Prisoner Monitoring.....................................................22

Cellular Phones Seized Incident to Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Pagers Seized Incident to Arrest ...........................................27

Beepers...............................................................29

Cordless Telephones ....................................................31

Thermal Imaging .......................................................32

Seizures by Rule 41 Warrant ....................................................33

"Sneak and Peek" Warrant................................................33

Video Surveillance......................................................34

Search Warrant Access to Computers, Disks, and Cassettes . . . . . . . . . . . . . . . . . . . . . 36

Applicability of Title III........................................................39

"Oral Communication" ..................................................39

"Wire Communication" ..................................................42

Government Access to Voice Mail and Answering Machine Messages . . . . . . . . . . . . . 42

“Electronic Communication”..............................................43

Electronic Communications “Readily Accessible to the General Public” . . . . . . . . . . . . 44

"Intercept" ............................................................45

"Electronic, Mechanical or Other Device"....................................47

Roving Interception .....................................................48

Electronic Pocket Notebook ..............................................50

Electronic Funds Transfers ...............................................50

Application/Order/Affidavit ....................................................51

Authorized Attorney ....................................................51

Non-Enumerated Offenses................................................51

Probable Cause.........................................................51

DOJ Authorization......................................................56

Technicalities, Typos and Omissions........................................58

Naming Violators/Interceptees.............................................61

Particularity Requirement/Telephone Number/Premises . . . . . . . . . . . . . . . . . . . . . . . . . 64

Previous Applications ...................................................66

Alternative Investigative Showing..........................................67

Civilian Monitors.......................................................79

"Intercept"/Jurisdiction ..................................................80

Ex t en si on s ............................................................81

Magistrate Judge .......................................................82

Judge’s Preliminary Review of Application/Affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . 83

Location of Authorizing Judge ............................................83

Emergency Interception ..................................................83

Fugitives..............................................................83

Ex e cu ti on ...................................................................85

Order to Service Provider Under 2518(4) ....................................85

Time Computation ......................................................85

Surreptitious Entry......................................................86

Microphone Installation by Cooperating Individual . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Attorney-Client Privilege.................................................87

Priest-Penitent Privilege..................................................90

Marital Communications .................................................90

Deputization...........................................................91

Supervision of Monitors .................................................91

Posse Comitatus........................................................92

"Clone Pagers".........................................................93

Background Conversations ...............................................93

"Plain View" ..........................................................94

Attorney Overhearings...................................................94

Recording.............................................................94

Duplicate Recordings....................................................95

Minimization ..........................................................95

Minimization After-the-Fact ..............................................99

Termination, Duration and Prosecutive Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

Post-Interception ............................................................102

Sealing ..............................................................102

R es eal in g ............................................................107

Custody .............................................................108

Notice of Inventory ....................................................108

Disclosure .................................................................110

2517 and 2515 ........................................................110

“Hand Off” Procedure ..................................................113

2518(8)(d) Inspection After Inventory Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

2518(9)..............................................................114

Search Warrant Affidavits ...............................................116

Affidavit Portrayal of Wiretap as Confidential Reliable Human Source . . . . . . . . . . . . 117

Suppression Hearing Exhibits ............................................118

Use of Illegal Interceptions ..............................................118

Use of Illegal Interceptions for Impeachment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Private Litigants.......................................................123

iii

"Other Offenses"/2517(5) ...............................................123

Freedom of Information.................................................125

Transcripts ...........................................................126

Monitoring Logs ......................................................128

Progress Reports ......................................................128

Work Product.........................................................129

3504 Motion..........................................................129

Trial ......................................................................130

R ecu sa l..............................................................130

Standing .............................................................130

The Confrontation Clause, Title III and CI Recordings . . . . . . . . . . . . . . . . . . . . . . . . . 132

Suppression ..........................................................132

Impeachment Exception to 2515 ..........................................138

Federal Use of State Wiretap Evidence .....................................139

Good Faith Exception ..................................................140

Compilation Tapes.....................................................141

Foundation ...........................................................141

Au t hen t ic ati o n ........................................................141

Transcript Use ........................................................142

Audibility............................................................143

Admission of Tapes ....................................................143

Expert Testimony......................................................143

Qualified Privilege of Nondisclosure for Sensitive Investigative Techniques . . . . . . . 143

National Security ............................................................145

Emergency Under 2518(7)(a)(ii) ..........................................145

Foreign Intelligence Surveillance Act (FISA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Extraterritoriality ............................................................146

Fourth Amendment ....................................................146

Office of Legal Counsel Opinions .........................................147

Electronic Surveillance Statute ...........................................147

Pen Register/Trap and Trace ...................................................149

Practice..............................................................149

Cell Site Simulator.....................................................151

The Legal Authorities Required to Locate Cellular Telephones . . . . . . . . . . . . . . . . . . 151

Cases Re: Cell-Site Data ................................................155

Wire or Electronic Communications in Storage and Transactional Records Access . . . . . . . . 157

Stored Wire and Electronic Communications (Contents) . . . . . . . . . . . . . . . . . . . . . . . 157

Subscriber Information (Transactional Records) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

Emergency Need for Telecommunications Records or Contents . . . . . . . . . . . . . . . . . 158

2701, 2703 (c) and (d) ..................................................158

Section 2709 National Security Letters .....................................159

Reimbursement of Service Provider for Reasonable Costs . . . . . . . . . . . . . . . . . . . . . . 160

Civil Liability of Governmental Entity .....................................160

Internet Related Cases ..................................................161

ECPA and Cable Communications Policy Act Regarding Notice to Customers . . . . . . 164

Violations of Title III.........................................................165

Constitutionality of 2511 as Applied to the Media . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

Mens Rea for Illegal Interception, Disclosure or Use . . . . . . . . . . . . . . . . . . . . . . . . . . 165

Violations of 2511 .....................................................166

Qualified Immunity ....................................................168

Absolute Immunity ....................................................168

Good Faith Reliance Defense [2520(d)] ....................................169

Civil Action Under 2520 ................................................169

Civil Action Under 2707 ................................................172

Cellular and Cordless Telephone Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

Descramblers .........................................................173

Surreptitious Interception Devices.........................................173

Parental Interception of Child on Home Telephone . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

Husband/Wife Interceptions .............................................174

Home Telephone Extension Exception .....................................174

Other Offenses ..............................................................175

Criminal Disclosures ...................................................175

18 U.S.C. 1503........................................................175

Legislation

Legislative History

OCCSTA

S. Rep. No. 1097, 90th Cong., 2d Sess., 1968, 1968 WL 4956 (Leg.Hist.)

ECPA

S. Rep. No. 541, 99th Cong., 2d Sess. 1986, 1986 WL 31929 (Leg.Hist.)

CALEA

S. Rep. No. 402, 103rd Cong., 2nd Sess. 1994, 1994 WL 562252 (Leg.Hist.)

H.R. Rep. No. 827(I), 103rd Cong., 2nd Sess. 1994, 1994 WL 557197 (Leg.Hist.)

Congressional Policy Role

"As new technologies continue to appear in the marketplace and outpace existing surveillance

law, the primary job of evaluating their impact on privacy rights and of updating the law must

remain with the branch of government designed to make such policy choices, the legislature.

Congress undertook in Title III to legislate comprehensively in this field and has shown no

reluctance to revisit it." In re Askin, 47 F.3d 100 (4th Cir. 1995).

Interstate Commerce Standard

The federal wiretapping statute passes the interstate commerce standard because

telecommunications are both channels and instrumentalities of interstate commerce. U.S. v.

Carnes, 309 F.3d 950 (6th Cir. 2002); Spetalieri v. Kavanaugh, 36 F. Supp.2d 92, 115-16

(N.D.N.Y. 1998).

The legislative history of the Omnibus Crime Control and Safe Streets Act of 1968 pertaining to

Section 2511 of Title 18 contains the following language concerning Congressional authority

under the commerce clause:

Since the facilities used to transmit wire communications form part of the interstate or foreign

communications network, Congress has plenary power under the commerce clause to prohibit all

interception of such communications, whether by wiretapping or otherwise. (Weiss v. United

States, 60 S.Ct. 269, 308 U.S. 321 (1939)).

The broad prohibition of subparagraph (a) is also applicable to the interception of oral

communications. The interception of such communications, however, does not necessarily

interfere with the interstate or foreign communications network, and the extent of the

constitutional power of Congress to prohibit such interception is less clear than in the case of

interception of wire communications. The Supreme Court has indicated that Congress has broad

power to protect certain rights under the Equal Protection Clause of the 14th amendment against

private interference. (United States v. Guest, 86 S.Ct. 1170, 383 U.S. 745 (1966) (concurring and

dissenting opinions).) The right here at stake--the right of privacy--is a right arising under certain

provisions of the Bill of Rights and the due process clause of the 14th amendment. Although the

broad prohibitions of subparagraph (a) could, for example, be constitutionally applied to the

unlawful interception of oral communications by persons acting under color of State or Federal

law, see Katzenbach v. Morgan, 86 S.Ct. 1717, 384 U.S. 641 (1966), the application of the

paragraph to other circumstances could in some cases lead to a constitutional challenge that can

be avoided by a clear statutory specification of an alternative constitutional basis for the

prohibition.

Therefore, in addition to the broad prohibitions of subparagraph (a), the committee has included

subparagraph (b), which relies on accepted jurisdictional bases under the commerce clause and

other provisions of the Constitution to prohibit the interception of oral communications.

S. Rep. No. 1097, 90th Cong., 2d Sess. (1968) at 2180, 1968 WL 4956 (Leg.Hist.).

Justice Department Policy

Attorney General Guidelines

The Supreme Court has clearly held that a court need not exclude evidence obtained in violation

of an agency's regulations or rules where neither the Constitution nor statute require adoption of

any particular procedures. U.S. v. Caceres, 440 U.S. 741 (1979) (IRS consensual monitoring);

U.S. v. Williamston, 1993 WL 527977 (4th Cir. December 21, 1993)(unpublished) (DEA

deputations); U.S. v. Guzman, 2000 WL 276505 (U.S. Armed Forces) (consensual monitoring

approval not in accord with procedures of DoD directive).

AG guidelines on criminal investigation of individuals and organizations did not create duty in

favor of general public with regard to execution of investigations. Kugel v. United States, 947

F.2d 1504 (D.C. Cir. 1991).

Warrantless Access to Communications

Interception by Service Provider

Telephone company's warrantless recording, disclosure and use of the wire communications of a

person suspected of using a "blue box" to evade toll charges was a reasonable exercise of the

telephone company's authority under 2511(2)(a)(i) to protect its rights and property. U.S. v.

Harvey, 540 F.2d 1345 (8th Cir. 1976) (citing U.S. v. Clegg, 509 F.2d 605 (5th Cir. 1975) for

delineation of minimum privilege accorded telephone company under 2511(2)(a)(i)).

Under 2511(2)(a)(i), there must be some substantial nexus between the use of the telephone

instrument to be monitored and the specific fraudulent activity being investigated so that the

service provider can show that such monitoring is "necessary . . . to the protection of the rights

or property of the provider." AT&T had right to monitor employee's communications on

company-issued cellphone in furtherance of the employee's fraudulent cellphone cloning scheme

where AT&T did not have the capability of intercepting the cloned instruments themselves. U.S.

v. McLaren, 957 F. Supp. 215 (M.D. Fla. 1997).

Cellular One employees were not acting as government agents when, after being informed by the

Secret Service that its customers were being defrauded by a clone phone operation, without the

knowledge of the government exercised its right under 18 U.S.C. 2511(2)(a)(i) to conduct

warrantless interceptions to detect fraudulent use of its services and located the residence from

which the clone phone radio signal was being transmitted. Cellular One then provided that

information to the Secret Service which then used that information to obtain a search warrant for

the residence being used by the clone cell phone users. U.S. v. Pervaz, 118 F.3d 1 (1st Cir.

1997).

A jury could reasonably find that Cellular One was acting as an instrument or agent of the

government when police officers conducting a kidnaping investigation, having been informed

that Cellular One could conduct, under 18 U.S.C. 2511(2)(a)(i), a warrantless wiretap of a clone

cellphone being used by the kidnaping suspect, asked Cellular One to relay to the police the

contents of calls monitored by Cellular One. Cellular One appeared to be motivated by its desire

to help the officers rather to protect its own property pursuant to the provisions of 18 U.S.C.

2511(2)(a)(i).(The intercepted message relayed to the police, that the caller wouldn’t be at work

that day, is irrelevant to a cloned phone investigation but very useful to a kidnaping

investigation.) Officers are not entitled to qualified immunity because the wiretap statute clearly

establishes the rights of someone using a telephone as against the police, and accordingly “it has

been crystal clear in this circuit, at least since 1976, that in no situation may the Government

direct the telephone company to intercept wire communications in order to circumvent the

warrant requirements of a reasonable search.” U.S. v. Auler, 539 F.2d 642 (7th Cir. 1976). “This

is why the courts in Pervaz and McLaren . . . go to such lengths to determine whether the phone

companies . . . were acting at the request or direction of police officers.” McClelland v.

McGrath, 31 F. Supp.2d 616 (N.D. Ill. 1998).

American Airlines, through their computerized reservation system, is a provider of wire or

electronic communication service and American's Senior Security Representative was acting

within the scope of her employment to protect the rights and property of her employer by

monitoring defendant travel agents' apparent misuse of American's electronic communication

service. See 18 U.S.C. 2511(2)(a)(i). Moreover, one of the parties to the communication (viz.,

American, as the security representative's employer) had consented to the monitoring. See 18

U.S.C. 2511(2)(d). U.S. v. Mullins, 992 F.2d 1472 (9th Cir. 1993).

There is no constitutional or statutory basis for suppression where, in the course of an

investigation into a large fraud scheme being perpetrated against AT&T, security personnel of

AT&T Wireless, without government involvement, and as authorized under 18 U.S.C.

2511(2)(a)(i), conducted warrantless interceptions and then disclosed to law enforcement

officials the defendant's incriminating communications intercepted during such warrantless

monitoring. U.S. v. Villanueva, 32 F. Supp.2d 635 (S.D.N.Y. 1998).

Switchboard Operator

Initial intercept by hotel operator or clerk was not "willful" (pre-ECPA mens rea), and continued

eavesdropping when distress or possible crime was overheard was not intended by Congress to

be unlawful. U.S. v. Savage, 564 F.2d 728 (5th Cir. 1977); Adams v. Sumner, 39 F.3d 933 (9th

Cir. 1994).

Switchboard operator's exception (2511(2)(a)(i)) is limited only to that moment or so during

which the operator must listen to be sure the call is placed. Berry v. Funk, 146 F.3d 1003 (D.C.

Cir. 1998).

Access to Stored Communications by Service Provider

During the government’s investigation of a kidnapping for ransom, a telecommunications

service provider provided records to the government without a court order. The government’s

application for a nunc pro tunc 2703(d) order retroactively authorizing the disclosure of the

records to the government was denied because there is no provision for the issuance of such an

order, and furthermore, such an order would not provide the immunity set forth in 18 U.S.C.

2703(e) because the disclosure when made was not authorized by a court order. However, a

kidnapping for ransom is the type of emergency situation which involves “immediate danger of

death or serious physical injury to a person. . .” Thus, a provider who discloses records or other

information pursuant to the statutory authorization in 18 U.S.C. 2702(c)(4) (added by the Patriot

Act of 2001) in emergency circumstances has the same protection from lawsuits as a provider

who discloses the records pursuant to a court order. The Homeland Security Act of 2002 added

an authorization (18 U.S.C. 2702(b)(8)) to disclose the contents of telecommunications in the

same circumstances. In the Matter of the Application of the United States for a Nunc Pro Tunc

Order for Disclosure of Telecommunications Records, 352 F. Supp.2d 45 (D. Mass. 2005).

The Reno Police Department provided a computer messaging system from which contents of

stored messages were retrieved that provided the basis for an internal affairs investigation of the

plaintiff police officers who claimed that the storage and retrieval of their messages violated 18

U.S.C. 2510-22 and the Constitution. Title III does not apply because electronic

communications in storage are not communications and therefore cannot be intercepted. The

controlling statutory provisions are 2701-11 concerning access to electronic communications in

storage. However, since the City is the provider of the electronic communications service, under

2701(c)(1) it and its employees are free to do as they wish when it comes to accessing

communications in electronic storage. Even if the computer storage of the messages were

deemed an intercept, consent would likely be implied under 2511(2)(c). A credible Fourth

Amendment privacy claim is precluded by the nature and use of the messaging system (notice of

message logging, banning of certain messages, limited users, routine recording by police

departments). Bohach v. City of Reno, 932 F. Supp. 1232 (D. Nev. 1996). See also U.S. v.

Moriarty, 962 F. Supp. 217 (D. Mass. 1997) and Eagle Investment Systems Corporation v.

Tamm, 146 F. Supp.2d 105 (D. Mass. 2001).

“Like the court in Bohach (see above), we read §2701(c) literally to except from Title II's

protection all searches by communications service providers. Thus, we hold that, because

Fraser's e-mail was stored on Nationwide's system (which Nationwide administered), its search

of that e-mail falls within §2701(c)'s exception to Title II.” Fraser v. Nationwide Mutual

Insurance Co., 352 F.3d 107 (3d Cir. 2003).

Smyth v. Pillsbury Company, 914 F. Supp. 97 (E.D. Pa. 1996) (wrongful discharge case):

. . . we do not find a reasonable expectation of privacy in e-mail communications voluntarily made by

an employee to his supervisor over the company e-mail system notwithstanding any assurances that

such communications would not be intercepted by management. Once plaintiff communicated the

alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was

apparently utilized by the entire company, any reasonable expectation of privacy was lost.

In the second instance, even if we found that an employee had a reasonable expectation of

privacy in the contents of his e-mail communications over the company e-mail system, we do not find

that a reasonable person would consider the defendant's interception of these communications to be a

substantial and highly offensive invasion of his privacy. Again, we note that by intercepting such

communications, the company is not, as in the case of urinalysis or personal property searches,

requiring the employee to disclose any personal information about himself or invading the employee's

person or personal effects. Moreover, the company's interest in preventing inappropriate and

unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest

the employee may have in those comments.

Note that 18 U.S.C. 2511(2)(a)(i) provides:

It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or

agent of a provider of wire or electronic communication service, whose facilities are used in the

transmission of a wire or electronic communication, to intercept, disclose, or use that communication

in the normal course of his employment while engaged in any activity which is a necessary incident to

the rendition of his service or to the protection of the rights or property of the provider of that service,

except that a provider of wire communication service to the public shall not utilize service observing

or random monitoring except for mechanical or service quality control checks.

Note also that 18 U.S.C. 2701(c) provides:

Subsection (a) of this section does not apply with respect to conduct authorized--

(1) by the person or entity providing a wire or electronic communications service;

Plaintiffs’ employment by insurance company was terminated because they violated company e-

mail policy by transmitting sexually explicit e-mails on the company’s computers. There was no

reasonable expectation of privacy in e-mail transmitted over the company’s computer system

(citing Smyth, see above) and there was no Title III “interception” violation because no e-mails

were acquired during transmission (citing Eagle, see above). (No mention was made of 18

U.S.C. 2701(c)(1) provision permitting a service provider to authorize its own access to

electronic communications stored on its system.) Garrity v. John Hancock Mutual Life

Insurance Company, 2002 WL 974676 (D. Mass.).

Defendant business and it's law firm divulged contents of plaintiff's e-mail messages on

defendant's e-mail system to the Wall Street Journal. Such disclosure was not a violation of

2702(a)(1) because the defendant business was not a provider of electronic communication

service "to the public." Andersen Consulting LLP v. UOP, 991 F. Supp. 1041 (N.D. Ill. 1998).

See also Conner v. Tate, 130 F. Supp.2d 1370 (N.D. Ga. 2001).

Defining electronic communications service to include online merchants or service providers

like Northwest [Airlines] stretches the ECPA too far. Northwest is not an internet service

provider, and therefore cannot violate 18 U.S.C. 2702. Courts have concluded that “electronic

communication service” encompasses internet service providers as well as telecommunications

companies whose lines carry internet traffic, but does not encompass businesses selling

traditional products or services online. In re Northwest Airlines Privacy Litigation, 2004 WL

1278459 (D. Minn.); Dyer v. Northwest Airlines Corporation, 334 F. Supp.2d 1196 (D. N.D.

2004); In re JetBlue Airways Corp. Privacy Litigation, 379 F. Supp.2d 299 (E.D.N.Y. 2005);

Copeland v. Northwest Airlines Corporation, 2005 WL 2365255 (W.D. Tenn.).

Airline’s alleged unauthorized disclosure of its passengers’ personally identifiable travel

information did not violate 18 U.S.C. 2701 absent an allegation that companies that accessed the

information obtained it without authorization from the airline’s facility. Even if airline was

contractually bound by its privacy policy not to disclose such information, that obligation did not

deprive it of its legal capacity under 18 U.S.C. 2702(b)(3) to consent to disclosure of its

passenger information to TSA. In re American Airlines, Inc., Privacy Litigation, 370 F. Supp.2d

552 (N.D. Tex. 2005).

The Ninth Circuit interprets the 18 U.S.C. 2510(17)(B) definition of “electronic storage” to

include backup storage regardless of whether it is intermediate or post-transmission:

An obvious purpose for storing a message on an ISP's server after delivery is to provide a second

copy of the message in the event that the user needs to download it again -- if, for example, the

message is accidentally erased from the user's own computer. The ISP copy of the message

functions as a "backup" for the user. Notably, nothing in the Act requires that the backup

protection be for the benefit of the ISP rather than the user. Storage under these circumstances thus

literally falls within the statutory definition. . . One district court reached a contrary conclusion,

holding that "backup protection" includes only temporary backup storage pending delivery, and

not any form of "post-transmission storage." See Fraser v. Nationwide Mut. Ins. Co., 135 F. Supp.

2d 623, at 633-34, 636 (E.D. Pa. 2001). We reject this view as contrary to the plain language of

the Act. In contrast to [18 U.S.C. 2510(17)(A)], [18 U.S.C. 2510(17)(B)] does not distinguish

between intermediate and post-transmission storage. Indeed, Fraser's interpretation renders

subsection (B) essentially superfluous, since temporary backup storage pending transmission

would already seem to qualify as "temporary, intermediate storage" within the meaning of

subsection (A). By its plain terms, subsection (B) applies to backup storage regardless of whether it

is intermediate or post-transmission.

* * * * *

We acknowledge that our interpretation of the Act differs from the government's and do not lightly

conclude that the government's reading is erroneous. Nonetheless, for the reasons above, we think

that prior access is irrelevant to whether the messages at issue were in electronic storage.

Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004).

On December 10, 2003, the Third Circuit applied the 2701(c)(1) service provider exception to an

insurance company that accessed employee’s e-mail on the company server. The Court,

however, had the following to say about the district court’s holding regarding the applicability of

the “backup protection” storage language of 2510(17)(B). It appears the Third Circuit would

likely agree with the Ninth Circuit (see Theofel above) on the backup storage issue:

The District Court granted summary judgment in favor of Nationwide, holding that Title II does

not apply to the e-mail in question because the transmissions were neither in "temporary,

intermediate storage" nor in "backup" storage. Rather, according to the District Court, the e-mail

was in a state it described as "post-transmission storage." We agree that Fraser's e-mail was not in

temporary, intermediate storage. But to us it seems questionable that the transmissions were not in

backup storage - a term that neither the statute nor the legislative history defines. Therefore, while

we affirm the District Court, we do so through a different analytical path, assuming without

deciding that the e-mail in question was in backup storage.

Fraser v. Nationwide Mutual Insurance Co., 352 F.3d 107 (3d Cir. 2003).

Company’s access to contents of employee’s company-issued computer hard drive and his

communications over the Internet was lawful under 2701(c) and 2511(2)(d). Borninski v.

Williamson, 2005 WL 1206872 (N.D. Tex.).

On March 22, 2004, the district court for the Central District of California, without citing the

Ninth Circuit’s Theofel opinion (see above), applied the Theofel view that prior access is

irrelevant to whether messages are in “electronic storage” as defined in 18 U.S.C. 2510(17)(B).

This application of the "backup protection" storage language of 2510(17)(B) was used to deny

defendant's dismissal motion in police officers' suit against Arch Wireless for its release to

police department of officers' text messages without warrant, subpoena or consent. Police

officers qualified as “users” of the pager service. Contractual privity between service provider

and user is not necessary under the statute to enable a claim by the user against the provider for

violation of Section 2702. Quon v. Arch Wireless Operating Co, Inc., 309 F. Supp.2d (C.D. Cal.

2004).

The Air Force e-mail system carried a banner on the opening screen that said: "users logging on

to this system consent to monitoring by the Hostadm." Under the provisions of 18 U.S.C.

2701(c), the Air Force, acting through its employees, was exempt from liability under 18 U.S.C.

2701 when it retrieved defendant’s e-mail in the course of investigating a slowdown in the

operation of the e-mail system. The Air Force was authorized by 18 U.S.C. 2702(b)(6) to

divulge to law enforcement the defendant’s apparently incriminating e-mail inadvertently

obtained by the Air Force while conducting maintenance of its e-mail system. U.S. v. Monroe,

2000 WL 276509 (U.S. Armed Forces).

"MUD" Use by Service Provider

Ameritech used its records (message unit detail (MUD)) of an employee's telephone calls made

from a calling card and from his home telephone to catch the employee violating the rules of his

disability leave. The court dismissed all claims with prejudice. "One final difficulty with the

'use' claim is federal law which expressly permits telephone company employees to 'intercept,

disclose or use [telephone communications] in the normal course of . . . employment while

engaged in any activity which is a necessary incident to . . . the protection of the rights and

property of [the telephone company].' 18 U.S.C. 2511(2)(a)(i). I do not think Illinois law would

found a tort on the legally authorized conduct of defendants in the circumstances alleged here."

Schmidt v. Ameritech Corporation, 1996 WL 153888 (N.D. Ill. 4/1/96).

Telephonic "Ordinary Course of Business" Exception

When an employee's supervisor has particular suspicions about confidential information being

disclosed to a business competitor, has warned the employee not to disclose such information,

has reason to believe that the employee is continuing to disclose the information, and knows that

a particular phone call is with an agent of the competitor, it is within the ordinary course of

business to listen in on an extension phone for at least so long as the call involves the type of

information he fears is being disclosed. The court did not decide whether interception of a

personal call on a business extension telephone is authorized by 2510(5)(a) (see footnote 8); at

what point continued monitoring would violate Title III had the conversation turned to personal

matters; or whether a general practice of random monitoring of employee calls can ever be

justified under 2510(5)(a) (see footnote 10 citing James v. Newspaper Agency Corp., 591 F.2d

579 (10th Cir. 1979) which held that the monitoring of employee phone calls by supervisory

personnel fell within the extension telephone exception where the monitoring device had been

installed by the Bell system and all affected personnel had been notified in writing about the

monitoring device). Briggs v. American Air Filter Co., Inc., 630 F.2d 414 (5th Cir. 1980).

A telephone extension used without authorization or consent to surreptitiously record a private

telephone conversation is not used in the ordinary course of business. U.S. v. Harpel, 493 F.2d

346 (10th Cir. 1974).

Consent cannot be implied from the mere fact that the Corporation's multi-line phone system

permitted defendant to eavesdrop unless the privacy option was activated. See Watkins v. L.M.

Berry & Co., 704 F.2d 577, 581 (11th Cir. 1983) ("knowledge of the capability of monitoring

alone cannot be considered implied consent"). Sheinbrot, M.D. v. Pfeffer, M.D., 1995 WL

432608 (E.D.N.Y. 7/12/95).

Because plaintiff acted to protect her interests rather than those of the Corporation, her actions

cannot be viewed as being conducted in the "ordinary course of business" of the Corporation.

Sheinbrot, M.D. v. Pfeffer, M.D., 1995 WL 432608 (E.D.N.Y. 7/12/95).

"The ordinary course of business exception to Title III is a technical doctrine that lives and dies

by the secretive nature of the interception." George v. Carusone, 849 F. Supp. 159 (D. Conn.

1994) (citing Harpel and Sababu); cf. Amati v. City of Woodstock, 176 F.3d 952 (7th Cir. 1999)

(notion that ordinary-course defense does not extend to surreptitious taping is potentially

misleading and should be avoided).

To construe the "ordinary course" provision (2510(5)(a)) as applying only where one of the

parties to the intercepted conversation consented would render the exemption meaningless, since

interceptions which have the consent of one of the parties to the conversation are already

explicitly exempted under 2511(2)(c) and (d). Anonymous v. Anonymous, 558 F.2d 677 (2d

Cir. 1997); Amati v. City of Woodstock, 176 F.3d 952 (7th Cir. 1999).

Central alarm service's covert monitoring of all incoming and outgoing telephone calls qualified

under the "ordinary course of business" exemption. Arias v. Mutual Central Alarm Service, Inc.,

202 F.3d 553 (2d Cir. 2000).

The evidence did not establish a business justification for the drastic measure of secret 24-hour a

day, seven-day a week monitoring of a corporation's telephone lines because of a stated fear of

bomb threats. Sanders v. Robert Bosch Corporation, 38 F.3d 736 (4th Cir. 1994).

If covert monitoring is to take place, it must itself be justified by a valid business purpose. Berry

v. Funk, 146 F.3d 1003 (D.C. Cir. 1998).

A personal call may not be intercepted in the ordinary course of business under the exemption in

section 2510(5)(a)(i), except to the extent necessary to guard against unauthorized use of the

telephone or to determine whether a call is personal or not. Watkins v. L.M. Berry & Co., 704

F.2d 577 (11th Cir. 1983). See also Fischer v. Mt. Olive Lutheran Church, Inc., 207 F. Supp.2d

914 (W.D. Wis. 2002)(citing Watkins); U.S. v. Devers, 2002 WL 75803 (M.D. Ala.) (citing

Watkins); Rassoull v. Maximus, Inc., 2002 U.S. Dist. LEXIS 21866 (D. Md.) (citing Watkins);

Anderson v. City of Columbus, Georgia, 374 F. Supp.2d 1240 (M.D. Ga 2005)(distinguishing

Watkins).

The recording of a telephone conversation during office hours, between co-employees, over a

specialized extension which connected the principal office to a substation, concerning scurrilous

remarks about supervisory employees in their capacities as supervisors, was a matter in which

the employer had a legal interest, and therefore fell within the "telephone extension exception."

Epps v. St. Mary's Hosp. of Athens, Inc., 802 F.2d 412 (11th Cir. 1986); Anderson v. City of

Columbus, Georgia, 374 F. Supp.2d 1240 (M.D. Ga 2005)(distinguishing Epps).

Monitoring of a business or business-related call through use of a speaker phone qualifies as the

use of "telephone equipment" in the "ordinary course of business" and is therefore excepted

under section 2510(5)(a). T.B. Proprietary Corp. v. Sposato Builders, Inc., 1996 WL 290036

(E.D. Pa. 5/31/96)

In Williams v. Poulos, 11 F.3d 271 (1st Cir. 1993) (followed in Sanders v. Robert Bosch

Corporation, 38 F.3d 736 (4th Cir. 1994), the court did not accept a monitoring system

consisting of alligator clips attached to a microphone cable at one end and an interface

connecting a microphone cable to a VCR and a video camera on the other, as a "telephone or

telegraph instrument, equipment or facility, or any component thereof." The court noted that this

monitoring system is factually remote from the telephonic and telegraphic equipment courts

have recognized as falling within the exception at 18 U.S.C. § 2510(5)(a). The court cited as

examples, Epps (dispatch console installed by telephone company considered telephone

equipment); Watkins (standard extension telephone implicitly considered telephone equipment);

Briggs (same); and James (monitoring device installed by telephone company implicitly

considered telephone equipment).

ISPs are included in Section 2510(5)(a)’s ordinary course of business exception. Hall v.

Earthlink Network, Inc., 396 F.3d 500 (2d Cir. 2005).

Wife's secret, systematic recording of husband's telephonic communications by attaching

automatic recorders to extension telephone lines in home next to business owned and operated

by her and her husband was not activity exempted from Title III under 18 U.S.C. 2510(5)(a)(i)

(use of extension telephone in ordinary course of business). The interception devices were the

recording machines she attached to the telephone extensions, and the interceptions were not in

the ordinary course of business. U.S. v. Murdock, 63 F.3d 1391 (6th Cir. 1995), cert. denied

5/13/96.

Unrecorded eavesdropping on home extension telephone by family member concerned about the

safety of her sister was not an "intercept" under Title III or Massachusetts law because such

telephone extension use, in the residential context, qualifies as use within the ordinary course of

business under 18 U.S.C. 2510(5)(a)(i). Commonwealth v. Vieux, 671 N.E.2d 989 (Mass. App.

Ct. 1996) (comprehensive review of case law concerning residential telephone interceptions).

[Affirming the federal district court’s rejection of a habeas petition, the First Circuit held that the

Massachusetts Appeals Court holding in Vieux was not “contrary to” or “an unreasonable

application” of federal law in light of a healthy debate among a number of courts. Vieux v.

Pepe, 184 F.3d 59 (1st Cir. 1999)]

A personal call may not be intercepted in the ordinary course of business under the exemption in

2510(5)(a)(i), except to the extent necessary to guard against unauthorized use of the telephone

or to determine whether a call is personal or not. The "ordinary course of business" exemption

applied here because the installation of recording equipment on extension phone was not

surreptitious, but with advance knowledge on the part of both management and its employees,

and was for a legitimate business purpose. Ali v. Douglas Cable Communications, 929 F. Supp.

1362 (D. Kan. 1996) (thorough analysis of case law on 2510(5)(a)).

Telephonic “Ordinary Course” of Law Enforcement Duties Exception

Police department’s cloning and monitoring of alphanumeric pager issued to police officer

(pager was provided to city by telephone company) for 10-14 days to confirm or disprove

suspicions that officer was disclosing confidential investigative information to drug traffickers is

not covered by the “ordinary course of business” and “law enforcement” exemptions provided

by 18 U.S.C. 2510(5)(a). The court did not analyze the “business use” and “law enforcement”

exemptions separately. “Although we do not find that the statute requires actual consent for the

exception to apply, we do hold that monitoring in the ordinary course of business requires notice

to the person or persons being monitored. Because it is undisputed here that plaintiff was not

given any notice that his pager was being monitored, the exceptions cannot apply.” The court

also stated that the business use and law enforcement exceptions both require that the equipment

used be provided by a communications carrier as part of the communications network. (A

careful reading of 18 U.S.C. 2510 would not yield such a requirement for the law enforcement

exception under 2510(5)(a)(ii)). The dissenting opinion noted this fact and also criticized the

majority’s holding that notice is a requirement of the ordinary course of business exception.)

Adams v. City of Battle Creek, 250 F.3d 980 (6th Cir. 2001). See also U.S. v. Friedman, 300

F.3d 111 (2d Cir. 2002)(agreeing with Adams that notice sufficient to support a finding of

implied consent under 2511(2)(c) is not required for a recording to fall within the “ordinary

course” exception, and assuming arguendo that some notice is required, holding that the

defendant’s jailhouse notice was sufficient for the application of the “ordinary course” exception

and to dispose of Fourth Amendment claims related to his taped calls).

To record all calls to and from a police department is a routine police practice. If "ordinary

course" of law enforcement includes anything, it includes that. Jandak v. Village of Brookfield,

520 F. Supp. 815 (N.D. Ill. 1981); cf. U.S. v. Daniels, 902 F.2d 1238 (7th Cir. 1990); See also,

Norwood v. City of Hammond, 2000 WL 158455 (E.D. La.). What would not be routine would

be if the police, in order to trick people into making damaging admissions over the phone,

announced that calls to and from the police department were not being recorded, and then

recorded them anyway. Such a scheme would not be in the "ordinary" course of law

enforcement. The boundary is between routine noninvestigative uses of electronic eavesdropping

and its use either as a tool of investigation (which requires a warrant) or as a device for

intimidation, suppression of criticism, blackmail, embarrassment, or other improper purposes.

See U.S. v. Harpel, 493 F.2d 346, (10th Cir. 1974).

If all the lines are taped, as is the ordinary practice of police departments, then the recording of

personal as well as official calls is within the ordinary course. Amati v. City of Woodstock, 176

F.3d 952 (7th Cir. 1999).

County Detention Center’s telephone monitoring system (attached to a single trunk line that

included the telephones that served the Judicial Corridor of the detention center) recorded the

telephone conversations of judges using the offices and courtroom facilities located in a separate

section of the detention facility. The County never notified the judges that their calls were being

recorded until it was confirmed by the jail administrator four years later when a judge began to

suspect such interception. The ordinary course of law enforcement’s duties does not include

recording the conversations of state judicial officers. The County’s conduct therefore was not

excused by the “law enforcement exception” of 18 U.S.C. § 2510(5)(a)(ii). Abraham v. County

of Greenville, South Carolina, 237 F.3d 386 (4th Cir. 2001)(citing Amati).

The government's jailhouse nonconsensual taping of a prisoner's "confession" to a priest was a

violation of the Religious Freedom Restoration Act (RFRA) (held unconstitutional by Supreme

Court on 6/25/97) and the Fourth Amendment. Since the taping was done in the ordinary course

of duty of the law enforcement officer (jailor) (18 U.S.C. 2510(5)(a)), the mens rea required for

a violation of 2511 was not present and therefore the prosecutor's retention of the intercepted

confession was not a violation of 2511. This case was remanded for appropriate injunctive relief

barring any future interception of confidential communications between a prisoner and a

member of the clergy in the member's professional capacity. Mockaitis v. Harcleroad, 104 F.3d

1522 (9th Cir. 1997).

The law enforcement exception does not exempt from liability the recording of private or

privileged conversations where neither caller consented to the recording. In re State Police

Litigation, 888 F. Supp. 1235 (D. Conn. 1995).

Routine, nonsurreptitious recording of a police investigative line which results in the recording

of a conversation of an officer misusing the line for private purposes, where the officer should

have known that the line was monitored, was in the ordinary course of the police chief's duties as

a law enforcement officer, and is exempted from the statute by Section 2510(5)(a)(ii). Jandak v.

Village of Brookfield, 520 F. Supp. 815 (N.D. Ill. 1981).

It should be noted that unlike the business extension exception contained in 18 U.S.C. §

2510(5)(a)(i), which requires both that the equipment be used in the ordinary course of business

and that the equipment be furnished by, or connected to the facilities of, a provider of wire or

electronic services, the law enforcement exception contained in § 2510(5)(a)(ii) requires only

that the equipment be used in the ordinary course of law enforcement duties. The pertinent

question under the Act is whether the equipment itself is being used in the ordinary course of the

law enforcement agency's duties; not whether the conversation recorded by the equipment relates

to the law enforcement agency's duties. First v. Stark County Board of Commissioners, 2000

WL 1478389 (6th Cir. 10/4/00)(unpublished).

Prison authorities did not "intercept," consensually or otherwise, any communication within

meaning of Title III when they routinely monitored and recorded inmate's conversation with his

attorney, in case in which inmate chose not to use available unmonitored line. The

communications were obtained by “law enforcement officers” who “used,” “in the ordinary

course of [their] duties,” some telephone “instrument, equipment or facility, or [a] component

thereof,” and therefore, under the provisions of 18 U.S.C. 2510(5)(a)(ii), the recordings were

excluded entirely from the coverage of the statute. Exclusion from coverage of Title III of

communications so obtained by “law enforcement officers” is not limited to use of a telephone to

listen, as opposed to use of a tape recorder to record. 18 U.S.C. 2510(5)(a)(ii). Smith v. U.S.

Department of Justice, 251 F.3d 1047 (D.C. Cir. 2001); U.S. v. Lewis, 406 F.3d 11 (1st Cir.

2005) (citing Smith, and footnoting to In re High Fructose, 216 F.3d 621 (7th Cir. 2000) and

U.S. v. Hammond, 286 F.3d 189 (4th Cir. 2002)).

The ordinary course of the Police Department's business is law enforcement, and, in the

circumstances here, the detective’s use of the extension phone to listen in on the conversation of

a suspect who could not have reasonably expected privacy was not inconsistent with the ordinary

course of the Police Department's business. 18 U.S.C. 2510(5)(a)(i). Kirby v. Senkowski, 141 F.

Supp.2d 383 (S.D.N.Y. 2001).

Police chief's secret taping of police telephone line used for personal calls was not protected by

ordinary course of business exception of 2510(5)(a)(ii). Abbott v. The Village of Winthrop

Harbor, 1998 U.S. Dist. LEXIS 11897 (N.D. Ill. 7/29/98).

Workplace Searches

College's warrantless use of CCTV to monitor locker area of storage room for thefts and

weapons was constitutional. There was no reasonable expectation of privacy in an unenclosed

locker area located on a storage room wall within view of numerous persons who had unfettered

access to the unlocked storage room. Even if there was a reasonable expectation of privacy, the

warrantless video surveillance was reasonable under the Fourth Amendment because employer

was investigating work-related misconduct. Citing O'Connor v. Ortega, 480 U.S. 709 (1987)

(balancing test for reasonableness of searches conducted to investigate work-related misconduct;

whether an employee has a reasonable expectation of privacy must be addressed on a case-by-

case basis) and U.S. v. Taketa, 923 F.2d 665 (9th Cir. 1991) (warrant required to conduct

criminal investigation through video surveillance of office reserved for employee's exclusive

use). Thompson v. Johnson County Community College, 930 F. Supp. 501 (D. Kan. 1996). See

also Gross v. Taylor, 1997 WL 535872 (E.D. Pa. 8/5/97) (police officers on duty in patrol car do

not have reasonable expectation of privacy or non-interception). See also U.S. v. Simons, 206

F.3d 392 (4th Cir. 2000) (warrantless search of CIA computer network for Internet use in

violation of office policy) (quoting O’Connor: “Ordinarily, a search of an employee’s office by a

supervisor will be justified at its inception when there are reasonable grounds for suspecting that

the search will turn up evidence that the employee is guilty of work-related misconduct”); see

also U.S. v. Slanina, 283 F.3d 670 (5th Cir. 2002)(applying O’Connor to uphold warrantless

search of government employee’s computer equipment for work-related misconduct even though

the search might also yield evidence of criminal acts and the supervisor conducting the search is

a law enforcement officer; Simons and Taketa distinguished); see also Haynes v. Office of the

Attorney General, 298 F. Supp. 2d 1154 (D. Kan. 2003)(preliminary injunction issued to protect

former assistant attorney general’s private information on office computer).

Marine corporal whose e-mails sent and received over a Government computer network were

seized with the aid of the network administrator (not pursuant to authorized system monitoring

activity) acting solely at the behest of law enforcement officials, without a warrant, had a limited

expectation of privacy in her e-mail communications via the Government network server.

“Specifically, while the e-mails [of Marine corporal] may have been monitored for purposes of

maintaining and protecting the system from malfunction or abuse, they were subject to seizure

by law enforcement personnel only by disclosure as a result of monitoring or when a search was

conducted in accordance with the principles enunciated in the 4th Amendment. Under the

circumstances presented in this case, the appellant had a subjective expectation of privacy in the

e-mails sent and received on her Government computer vis-à-vis law enforcement and this

expectation of privacy was reasonable.” U.S. v. Long, 61 M.J. 539 (N.M.Ct.Crim.App. 2005)

(citing O’Connor, Simons, Slanina (see above)).

In the present case, the frank nature of the employees' conversations makes it obvious that they

had a subjective expectation of privacy. After all, no reasonable employee would harshly

criticize the boss if the employee thought that the boss was listening. The essential question,

therefore, is whether this expectation of privacy was objectively reasonable. We believe that the

facts of this case make clear that it was. The conversations took place only when no one else was

present, and stopped when the telephone was being used or anyone turned onto the gravel road

that was the only entrance to the office. The record thus indicates that the employees took great

care to ensure that their conversations remained private. Moreover, the office was a small,

relatively isolated space. The employees could be sure that no one was in the building without

their knowledge. The Abshers rely on Kemp v. Block, 607 F. Supp. 1262 (D. Nev. 1985), a case

in which the employee-plaintiffs, who worked in a single room, were found to have had no

reasonable expectation of privacy. In that case, however, the single room was part of a larger

office complex, meaning that others could easily overhear their conversations. In contrast, the

entire office in the present case consisted of a single room that could not be accessed without the

employees' knowledge. We therefore conclude that the employees had a reasonable expectation

of privacy in their workplace. Dorris v. Absher, 179 F.3d 420 (6th Cir. 1999).

Consensual Monitoring

USAM 9-7.300

18 U.S.C. 2511(2)(c) and (d)

If by virtue of sections 2511(2)(c) or (d) an interception is not prohibited by Title III, there are

no Title III restrictions on its use. Section 2517(3) does not come into play and such questions as

whether the section authorizes disclosure only in government proceedings and only at trial drop

out; the meaning of "oral communications" also becomes moot. In re High Fructose Corn Syrup

Antitrust Litigation, 216 F.3d 621 (7th Cir. 2000)(Judge Posner provides a clarifying and

insightful analysis of the structure of Title III). See also U.S. v. Hammond, 286 F.3d 189 (4th

Cir. 2002)(followed Seventh Circuit’s reasoning in In re High Fructose and extended the

rationale to the “law enforcement” exception (2510(5)(a)(ii)) as well as the “consent” exception).

With regard to the language of 18 U.S.C. 2511(2)(c) and (d), Judge Posner noted in In re High

Fructose Corn Syrup Antitrust Litigation, 216 F.3d 621 (7th Cir. 2000) that:

One might wonder why, if the statute tracks the Fourth Amendment, the statute's drafters bothered

to carve an express exception for oral communications intercepted by one of the parties to the

communication, given that such interceptions do not violate the Fourth Amendment. Some cases in

other circuits suggest, in conformity with the statutory language, that there can be a reasonable

expectation that one's conversations even if not private will not be intercepted electronically. See,

e.g., Angel v. Williams, 12 F.3d 786, 790 n. 6 (8th Cir. 1993); Walker v. Darby, 911 F.2d 1573,

1578-79 (11th Cir. 1990); Boddie v. American Broadcasting Companies, Inc., 731 F.2d 333,

338-39 and n. 5 (6th Cir. 1984). None of the cases, however, involves recording one's own

conversations, as in this case.

To subject interceptions made lawful by sections 2511(2)(c) and (d) to section 2517(3) would

have absurd consequences. It would mean that Whitacre had violated the statute by turning his

recordings over to the FBI, since on the district court's reading of that section the only

permissible disclosure of the contents of an interception made lawful by sections 2511(2)(c) or

(d) is to play a tape of, or testify to, those contents in court. Section 2517(3) reflects a traditional

sensitivity about wiretapping and related methods of electronically eavesdropping on other

people's conversations. As is implicit (and sometimes explicit) in the cases that hold that such

eavesdropping violates the Fourth Amendment but that recording your own conversations does

not, there just is not the same sensitivity about the latter practice. Title III does not require a

warrant for such recording or regulate its use in any way. The matter has been left to the states,

except for the flat prohibition of consensual recording for improper purposes. If FBI informant’s

recordings were made lawful by either 2511(2)(c) or (d), Title III does not restrict their use by

the plaintiffs in private civil litigation. Informant would not be within the exception under

2511(2)(d) for recording for a criminal or tortious purpose, because a purpose of gathering

evidence of a violation of law is not criminal or tortious. “True, his motive in making the

recordings may have been criminal or tortious (or more likely both)--to elude detection of his

fraud against ADM by becoming a valued FBI informant and good-guy whistleblower. But when

the law speaks of recording conversations with a criminal or tortious purpose, it has, we think,

regard for the intended use of the recordings.” The intent was to collect evidence of antitrust

violations, not evidence that might be used for an improper purpose. “The recordings were no

more unlawful than an arrest would be by a police officer who wanted to demonstrate zeal in the

performance of his duties in the hope that it would shield him from prosecution for embezzling

funds of the police department.” In re High Fructose Corn Syrup Antitrust Litigation, 216 F.3d

621 (7th Cir. 2000).

Plaintiff’s tape recording of conversation and events surrounding his arrest is, by virtue of

2511(2)(d), not prohibited by Title III and therefore there are no Title III restrictions on its use

and it is admissible with respect to the federal claims against the defendant. A purpose of

gathering evidence of a violation of law is not criminal or tortious. Even if the act of recording

the conversation was a violation of the Illinois law, this does not constitute a criminal or tortious

purpose for its use. Glinski v. City of Chicago, 2002 WL 113884 (N.D. Ill.)(citing High

Fructose (see above), Sussman and Roberts (see below)).

Title III does not apply to the use of body wires because the informant who wears the wire is a

party to the communication and consents to its interception. 18 U.S.C. § 2511(2)(c). Martinez

v. U.S., 2001 U.S. Dist. LEXIS 2457 (S.D.N.Y.).

Consent under Title III need not be explicit; instead, it can be implied. Gilday v. Dubois, 124

F.3d 277 (1st Cir. 1997) (prisoner had to consent in writing before using monitored prison

telephone system and parties were not connected unless call recipient responded appropriately to

automatic recorded message advising that call would be recorded). Williams v. Poulos, 11 F.3d

271 (1st Cir. 1993) (subject was not told of the manner in which the monitoring was conducted

and that he himself would be monitored.); Griggs-Ryan v. Smith, 904 F.2d 112, 116 (1st Cir.

1990) (defendant was informed that all incoming calls on a particular line would be recorded);

Laughlin v. Maust, 1997 WL 436224 (N.D. Ill. 8/1/97) (restaurant manager was told that main

telephone line at restaurant would be monitored); Rassoull v. Maximus, Inc., 2002 U.S. Dist.

LEXIS 21866 (D. Md.) (citing Griggs-Ryan). (See PRISONER MONITORING)

Record amply supported the court's determination that woman voluntarily consented to the

government's recording of her conversations with defendants. U.S. v. Cruz, 1997 WL 196035

(4th Cir. 4/23/97).

Recorded telephone call to defendant was suppressed because Government failed to prove by a

preponderance of the evidence that pregnant common law wife of co-defendant voluntarily

consented to police recording her telephone call with defendant. A reasonable person in the

woman’s position, subjected to the coercive effect of police conduct, may well have had her free

will overborne and believed that she could not refuse to participate in the telephone call to the

defendant. U.S. v. Moore, 96 F. Supp.2d 1154 (D. Col. 2000).

Consent can be shown where one of the parties knew that the call would be monitored. U.S. v.

Davis, 799 F.2d 1490 (11th Cir. 1986); O'Ferrell v. U.S., 968 F. Supp. 1519 (M.D. Ala. 1997).

Suspect implicitly consented to the monitoring of his telephone conversations conducted on an

extension telephone at the police station after a detective first dialed the number from another

extension and told the person answering the phone that the suspect was on the line. In view of

the circumstances, he could not have expected the calls to be private or confidential. More

importantly, he believed that the detective was listening and even addressed the detective

directly, mocking him. He chose to speak to his mother and girlfriend nonetheless. Kirby v.

Senkowski, 141 F. Supp.2d 383 (S.D.N.Y. 2001).

Warrantless audio and video monitoring of bribe transactions in hotel suite with the consent of a

participating informant did not violate the Constitution or statutory law. The opinion includes a

good review of the Supreme Court’s jurisprudence in Hoffa, White and Caceres regarding

consensual monitoring. The Supreme Court has not drawn any distinction between audio and

video surveillance, and similarly the court in the instant case does not see any constitutionally

relevant distinction between the two types of evidence. The court rejects the First Circuit’s

decision in U.S. v. Padilla, 520 F.2d 526 (1st Cir. 1975) (a quarter century old and not followed

in any other circuit) suppressing, based on a fear of potential law enforcement abuse, consensual

recordings made on a device placed in the room rather than on the person of the consenting

party. The Court favorably cites the Second and Eleventh Circuit cases of U.S. v. Myers, 692

F.2d 823 (2d Cir. 1982) (surveillance of congressman’s meeting with undercover agents at

townhouse maintained by FBI), and U.S. v. Yonn, 702 F.2d 1341 (11th Cir. 1983) (motel room

consensual monitoring; also specifically rejected Padilla reasoning). The monitoring devices in

the instant case were installed at a time when the defendant had no expectation of privacy in the

hotel suite. U.S. v. Lee, 359 F.3d 194 (3d Cir. 2004).

“The government met its burden to demonstrate consent when it established that [informant]

knew what the government agents were about when they set up the recording equipment and

provided him with a body wire.” U.S. v. Bates, 2005 WL 3050278 (N.D. Ind.).

Consensual video and audio recordings in hotel room do not have to be suppressed in their

entirety because they contain brief periods when the consenting party was not in the room. The

record established that the technicians taping the meeting were expressly instructed to tape only

while the consenting party was in the room. The technicians erred. The record established that

the prosecutors learned of this error and, without reviewing the tape, arranged for the

unauthorized time periods to be redacted. The unredacted version was made available to the

Defendants, but nothing from the unauthorized time period was ever utilized in the prosecution.

Further, the district court, after an evidentiary hearing, concluded that the Government had not

acted in bad faith. U.S. v. Yang, 281 F.3d 534 (6th Cir. 2002).

District court suppressed consensual audio and video recordings because the interception devices

were hidden in a hotel room obtained by the consenting informant as a temporary home for the

subject woman and her minor child. The court determined that the woman had a justifiable

expectation of privacy in her surroundings. Following the reasoning in U.S. v. Padilla, 520 F.2d

526 (1st Cir. 1975), the court suppressed the recordings notwithstanding the fact that the

government remotely controlled the recording devices so that monitoring occurred only when

the consenting informant was in the room. The court found that the informant had no right to

consent to placement of recording devices in the subject's hotel room, and that the government's

placement of the recording devices in the defendant's room without a warrant or judicial

supervision was an intrusion so massive as to be fatal under the Fourth Amendment. The

government opposed suppression, citing U.S. v. Yonn, 702 F.2d 1341 (11th Cir. 1983) (rejecting

Padilla analysis), U.S. v. Laetividal-Gonzalez, 939 F.2d 1455 (11th Cir. 1991), and U.S. v. Cox,

836 F. Supp. 1189 (D. Md. 1993). U.S. v. Shabazz, 883 F. Supp. 422 (D. Minn. 1995).

A judge in the Eastern District of New York followed the analysis in U.S. v. Yonn, 702 F.2d

1341 (11th Cir. 1983) to hold that defendants had no constitutional right to exclude recordings of

conversations they had with a cooperating witness. To conduct the consensual interceptions the

government activated a Title III room "bug" awaiting renewal of its Title III authorization. The

cooperating witness did not know about the room "bug." The ineffectiveness of a microphone

on the body of the cooperating witness caused the government to resort to the Title III

microphone to accomplish the consensual recordings. U.S. v. Yeung, 1996 WL 31235

(E.D.N.Y.).

As long as a guardian has a good faith, objectively reasonable belief that it is necessary to

consent on behalf of his or her minor child to the taping of telephone conversations, the guardian

may vicariously consent on behalf of the child to the recording. Pollock v. Pollock, 154 F.3d

601 (6th Cir. 1998) (child aged fourteen); Thompson v. Dulaney, 838 F. Supp. 1535 (D. Utah

1993) (children aged three and five); Wagner v. Wagner, 64 F. Supp.2d 895 (D. Minn. 1999).

Courts have repeatedly held that informants who tape-record private conversations at the

direction of government investigators are "acting under color of law" within the meaning of

subsection 2511(2)(c). Obron Atlantic Corporation v. Barr, 990 F.2d 861 (6th Cir. 1993)

(continuous but irregular contact with DOJ attorneys following their request for assistance and

their instructions on how to conduct the calls); U.S. v. Haimowitz, 725 F.2d 1561 (11th Cir.

1984) (FBI "supervised" taping); U.S. v. Shields, 675 F.2d 1152 (11th Cir. 1982) (cooperating

detective controlled the recording process); U.S. v. Tousant, 619 F.2d 810 (9th Cir. 1980); U.S.

v. McKneely, 69 F.3d 1067 (10th Cir. 1995) (cooperating defendant consented to audio and

video surveillance of her hotel room); U.S. v. Andreas, 216 F.3d 645 (7th Cir. 2000) (CW’s

taping of coconspirators was very loosely supervised by FBI); U.S. v. Schulze, 2005 WL

3150267 (9th Cir.)(unpublished)(FBI supplied informant with equipment to record his

conversations); U.S. v. Cowhig, 2004 WL 3088652 (D. Mass.)(that CW may have made the

recordings when the FBI was not present, had ulterior motives for cooperating with the federal

investigation, or exercised discretion in deciding which conversations to record neither

undermines nor alters the fact that CW made the audio tapes under the direction of a federal

investigation); U.S. v. Cannon, 2003 WL 21406180 (E.D. La.); U.S. v. Cox, 836 F. Supp. 1189

(D. Md. 1993) (cooperating defendant consented to audio and video surveillance of his motel

room); Debose-Parent v. Hyatt, 2001 WL 709291 (E.D. La.)(applying Obron; state bar counsel

was acting under color of law (2511(2)(c)) when he advised lawyer there would be no ethics

violation if the lawyer, with his client’s consent, recorded opposing counsel’s attempted ex parte

communication with the lawyer’s client; the lawyer and his client were not acting under color of

law because they were not acting at the behest of the state or under its direction, but the lawyer

and client were protected under the consensual interception exception found in 2511(2)(d)

because the plaintiff failed to allege that they recorded the conversation with the intent to

commit a criminal or tortious act).

The FBI's failure to comply with its own internal guidelines, or failure to record every

conversation between alleged conspirators, is not grounds for a constitutional challenge to the

admissibility of evidence. U.S. v. Caceres, 440 U.S. 741 (1979); U.S. v. Feekes, 879 F.2d 1562

(7th Cir. 1989) (stating that failure to record conversations is a credibility issue to be determined

by the jury). U.S. v. Andreas, 216 F.3d 645 (7th Cir. 2000). See also U.S. v. Loehr, 2003 U.S.

Dist. LEXIS 24934 (N.D. Ill.)(citing Andreas).

Media employees' interception, for broadcast, of federal agent's conversation with owner of

premises being searched pursuant to warrant was protected under 2511(2)(c). Berger v. Hanlon,

129 F.3d 505 (9th Cir. 1997).

An Ohio Arts Council representative tape recorded a meeting the representative held with a grant

applicant to discuss his claim of racial discrimination in the denial of his application. The

district court properly dismissed the applicant’s civil suit alleging that the recording of his

meeting violated his civil rights. Both Ohio and federal law provide exceptions for one party

consensual monitoring of communications. Paasewe v. Ohio Arts Council, 2003 U.S. App.

LEXIS 17934 (6th Cir.)(unpublished).

Assistant basketball coach who recorded telephone conversation with potential recruit was

protected under the "consent" provisions of 2511(2)(d). Thomas v. Pearl, 998 F.2d 447 (7th Cir.

1993).

"Because the party tape recording the meeting was present, nothing illegal occurred." 18 U.S.C.

2511(2)(d). U.S. v. McAfee, 8 F.3d 1010 (5th cir. 1993).

The person receiving a fax is a party to the communication for purposes of consent under

2511(2)(d). Before he received the fax, the recipient of the fax had already completed the

fraudulent act of impersonating the plaintiff and therefore the fax transmission was not

undertaken for the purpose of committing fraud. The conduct may be a violation of other statutes

or common law, but it is not a violation of the ECPA. Clemons v. Waller, 2003 U.S. App.

LEXIS 23547 (6th Cir.) (unpublished).

A defendant seeking to suppress a consensual tape recording bears the burden of proving by a

preponderance of the evidence, either (1) that the primary motivation, or (2) that a determinative

factor in the actor's motivation for intercepting the conversation was to commit a criminal,

tortious, or other injurious act. U.S. v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (citing U.S. v. Vest,

639 F. Supp. 899 (D. Mass. 1986)); U.S. v. Zarnes, 33 F.3d 1454 (7th Cir. 1994) (husband did

not prove that wife made tape to blackmail him); U.S. v. Farrah, 2000 WL 92349 (D.

Conn.)(consensual taping by fraud victim); U.S. v. Kovolas, 1998 U.S. Dist. LEXIS 12044 (D.

Mass.)(consensual taping of arsonist); CFTC v. Rosenberg, 85 F. Supp.2d 424 (D. N.J. 2000)

(consensual taping by victim of broker fraud).

Magistrate judge allowed defendant to have an evidentiary hearing on suppression motion

raising the issue of whether, under 2511(2)(d), consensually intercepted conversation was

intercepted "for the purpose of committing any criminal or tortious act." U.S. v. Mavroules, 813

F. Supp. 115 (D. Mass. 1993).

In suit brought under Section 2520, a genuine issue of fact existed as to whether defendant ex-

husband's recording of certain telephone conversations with plaintiff wife (Wayne County

Circuit Judge) was done for the purpose of committing a crime (blackmail of wife) and therefore

not protected under 2511(2)(d). Ferrara v. Detroit Free Press, Inc., 1998 U.S. Dist. LEXIS 8635

(E.D. Mich.). [Jury later rendered a verdict in defendant’s favor]

Plaintiff sued radio station and its reporter because they taped a telephone interview with

plaintiff for later radio broadcast, without plaintiff’s knowledge. Defendants’ summary judgment

motion was granted because plaintiff did not establish that recording was made for any reason

other than to gain information for the radio broadcast. Plaintiff failed to establish that the

defendants taped the conversation for the purpose of committing a crime or a tort. 18 U.S.C.

2511(2)(d). Vazquez-Santos v. El Mundo Broadcasting Corporation, 283 F. Supp.2d 561 (D.

P.R. 2003).

Tape recordings made by Cisneros’ former mistress (Medlar) were lawful under 18 U.S.C.

2511(2)(d).(See Dale infra). The defendant failed to produce any evidence to rebut Medlar’s

testimony that her purposes in recording the conversations were to preserve a record of the

financial agreement between herself and Cisneros and to maintain a record of his statements to

her in the event she needed to correct inaccurate public accounts of their relationship. Neither of

these interception purposes qualifies as criminal or tortious and therefore the consensual

recordings are not prohibited by Title III. The use of the tapes is not the critical factor for Title

III purposes. Rather, it is the party’s intent in making the recording that is determinative. U.S.

v. Cisneros, 59 F. Supp.2d 58 (D. D.C. 1999).

Husband’s recording of his telephone conversation with his wife was legal under 18 U.S.C.

2511(2)(c) or (d), and therefore the submission and use of the transcript of the conversation in

Delaware Family Court was authorized under 18 U.S.C. 2517(3). Goode v. Goode, 2000 WL

291541 (D. Del.). See also Hurst v. Phillips, 2005 WL 2436712 (W.D. Tenn.).

Saving of an AOL Instant Messenger conversation on a computer by a party to the conversation

was lawful under 18 U.S.C. 2511(2)(d) and therefore use of the transcript of the conversation by

the defendants was lawful. S.L. v. Friends Central School, 2000 WL 352367 (E.D. Pa.).

U.S. v. Dale, 991 F.2d 819 (D.C. Cir. 1993) upheld district court's refusal to suppress tape

recorded calls. District court found that section 2511(2)(d) was not violated when a recording

party who was originally a willing participant in criminal scheme began taping conversations to

protect his interests, and another party recorded conversations to keep a record of his

employment dispute and not for purposes of extortion. The defendants did not meet their burden

of proving that the tape recordings were done for criminal or tortious purposes. Taping phone

calls to make an accurate record of a conversation to prevent future distortions by a participant is

not illegal, see U.S. v. Underhill, 813 F.2d 105 (6th Cir. 1987), U.S. v. Miller, 1996 WL 426135

(6th Cir.); even when the recording is made in the hopes of producing evidence of an illegal

conspiracy, see By-Prod. Corp. v. Armen-Berry Co., 668 F.2d 956 (7th Cir. 1982). A person

may even tape confederates in the hope of obtaining evidence to reduce his own sentence. See

U.S. v. Ruppel, 666 F.2d 261 (5th Cir. 1982).

The fact that the consenting party may have violated Massachusetts' law requiring consent by all

parties does not by itself establish that the consenting party intercepted the conversations for the

purpose of committing any criminal or tortious act in violation of the state law. U.S. v. DiFelice,

837 F. Supp. 81 (S.D.N.Y. 1993).

Federal court need not decide whether one party consensual recording (lawful under 18 U.S.C.

2511(2)(d)) of defendant's call violated California law because federal law governs the

admissibility of evidence in a federal criminal trial. "Evidence admissible under federal law

cannot be excluded because it would be inadmissible under state law." U.S. v. Pforzheimer, 826

F.2d 200 (2d Cir. 1987) (quoting U.S. v. Quinones, 758 F.2d 40 (1st Cir. 1985); U.S. v. Adams,

694 F.2d 200 (9th Cir. 1982). U.S. v. Morrison, 153 F.3d 34 (2d Cir. 1998); Manning v. Buchan,

357 F. Supp.2d 1036 (N.D. Ill. 2004)(Illinois statute requiring all party consent does not control

admissibility in federal court, at least as to claims made under law).

On Indian reservation in the State of Washington, the federal law at 18 U.S.C. 2511(2)(d),

protecting one-party consensual monitoring, cannot be overridden by assimilation, under the

ACA, of the state law that requires all-party consent. U.S. v. Aripa, 1997 WL 787487 (9th Cir.

12/22/97) (unpublished).

"Thus, the focus is not upon whether the interception itself violated another law; it is upon

whether the purpose for the interception--its intended use-was criminal or tortious. To hold

otherwise would result in the imposition of liability under the federal statute for something that

is not prohibited by the federal statute (i.e., recording a conversation with the consent of only

one party), simply because the same act is prohibited by a state statute. Surely this is not the

result intended by Congress." Payne v. Norwest Corporation, 911 F. Supp. 1299 (D. Mont.

1995). See also Sussman v. American Broadcasting Company, Inc., 186 F.3d 1200 (9th Cir.

1999); Glinski v. City of Chicago, 2002 WL 113884 (N.D. Ill.)(citing Sussman).

Plaintiff in federal sexual harassment suit had secretly recorded her oral communications with

her supervisor and others. Although plaintiff's secret recordings probably violated California

state law, federal courts have applied federal law on conversation recording to the exclusion of

state law when the issue of tape recording impropriety has been raised in actions based on

federal law. Thus, the 'tortious purpose' referenced by 2511(2)(d) must be a tortious purpose

other than the mere intent to surreptitiously record an oral conversation. The Ninth Circuit has

consistently held that such evidence is admissible in federal court proceedings when obtained in

conformance with federal law and without regard to state law. This holding is applicable to civil

as well as criminal proceedings. Roberts v. Americable Intern. Inc., 883 F. Supp. 499 (E.D. Cal.

1995); Glinski v. City of Chicago, 2002 WL 113884 (N.D. Ill.)(citing Roberts). See also U.S. v.

Kovolas, 1998 U.S. Dist. LEXIS 12044 (D. Mass.) (private party taped conversation with

arsonist for her own protection).

California statute criminalizing the taping of a confidential conversation and limiting the

admissibility of illegally intercepted conversations, is an exception to the general rule that the

Federal Rules govern the admissibility of evidence in diversity cases. The statute embodies a

state substantive interest in the privacy of California citizens from exposure of their confidential

conversations to third parties. The California Constitution expressly guarantees a right to

privacy. Penal Code § 632 is an integral component of California's substantive state policy of

protecting the privacy of its citizens, and is properly characterized as substantive law within the

meaning of Erie R.R. v. Tompkins, 304 U.S. 64 (1938). Feldman v. Allstate Insurance

Company, 322 F.3d 660 (9th Cir. 2003). See also Zhou v. Pittsburg State University, 252 F.

Supp.2d 1194 (D. Kan. 2003)(noting Feldman diversity case but holding that in employment

discrimination action based on federal question, tape recorded conversation between employee

and employer's counsel was admissible, although tape was likely made in contravention of

California statute).

". . . consent cannot be implied from the mere fact that the Corporation's multi-line phone system

permitted defendant to eavesdrop unless the privacy option were activated. See Watkins v. L.M.

Berry & Co., 704 F.2d 577, 581 (11th Cir. 1983) ("knowledge of the capability of monitoring

alone cannot be considered implied consent" (emphasis in original)). Sheinbrot, M.D. v.

Pfeffer, M.D., 1995 WL 432608 (E.D.N.Y. 7/12/95).

Title III prohibits monitoring cloned cellphones without a court order. Foreseeability of

monitoring is insufficient to infer consent. Rather, the circumstances must indicate that a party to

the communication knew that interception was likely and agreed to the monitoring. U.S. v.

Staves, 383 F.3d 977 (9th Cir. 2004).

Tapes of telephone calls are admissible under the consent exception of Title III (2511(2)(d))

where defendant knew the telephone lines in the securities lending area were continuously taped

and the company reserved the right to listen to those tapes, and the employee handbooks made it

clear that the company had the right to review the recordings. Despite those warnings, defendant

chose to continue to use those phones. U.S. v. Rittweger, 258 F. Supp.2d 345 (S.D.N.Y. 2003).

See also U.S. v. Capriotti, 2004 U.S. Dist. LEXIS 5666 (N.D. Ill.)(calls recorded on corporate

telephone monitoring system had a consenting party per the 2511(2)(d) exception).

Section 2511(2)(d) protects ABC's undercover consensual recordings because the recordings

were not made for the purpose of committing a crime or tortious act. Desnick v. American

Broadcasting Companies, Inc., 44 F.3d 1345 (7th Cir. 1995) (eye clinic examinations). See also

Deteresa v. American Broadcasting Companies, Inc., 121 F.3d 460 (9th Cir. 1997) (airline

stewardess who worked O.J. Simpson's Chicago flight); Sussman v. American Broadcasting

Companies, Inc., 186 F.3d 1200 (9th Cir. 1999) ("Prime Time Live" investigation of company

providing psychic advice by telephone); Medical Laboratory Management Consultants v.

American Broadcasting Companies, Inc., 30 F. Supp.2d 1182 (D. Az. 1998).

An Internet website was a party to communications with plaintiffs, consented to third party

monitoring of such communications, and was not shown to have had a criminal or tortious

purpose, and therefore is within the exemption provided by 18 U.S.C. 2511(2)(d). In re

DoubleClick Inc. Privacy Litigation, 154 F. Supp.2d 497 (S.D.N.Y. 2001). See also: Chance v.

Avenue A, Inc., 165 F. Supp.2d 1153 (W.D. Wash. 2001); Crowley v. Cybersource Corporation,

166 F. Supp.2d 1263 (N.D. Cal. 2001); In re Toys R US, Inc., Privacy Litigation, 2001 U.S. Dist.

LEXIS 16947 (N.D. Cal.).

Conflicting State Laws

The state law cannot preempt the federal unless the federal act itself sanctions the application of

state standards. Warrantless interceptions where one party consents are specifically permitted

under 18 U.S.C. 2511(2)(c) and (d). Where one party consented and no state court order or

warrant was obtained, the requirement of 18 U.S.C. 2516(2) that the applicable state law must be

complied with, does not come into play. It is only wiretapping by state officers under § 2516(2)

which requires further authorization by state statute. State law is simply irrelevant in a federal

prosecution if the investigating officers, even state officers acting alone, are not acting under the

authorization of a state court. The legislative intent that federal law is to prevail in case of

conflict is further indicated by 18 U.S.C. 2520, which provides that a good faith reliance on a

court order or legislative authorization shall constitute a complete defense to any civil or

criminal action brought under Chapter 119 "or under any other law." U.S. v. Glasco, 917 F.2d

797 (4th Cir. 1990); U.S. v. Masko, 2000 U.S. App. LEXIS 19057 (4th

Cir.)(unpublished)(following Glasco); U.S. v. D'Antoni, 874 F.2d 1214 (7th Cir. 1989); U.S. v.

McNulty, 729 F.2d 1243 (10th Cir. 1984) (en banc); U.S. v. Nelligan, 573 F.2d 251 (5th Cir.

1978); U.S. v. Workman, 80 F.3d 688 (2d Cir. 1996); U.S. v. Mathis, 96 F.3d 1577 (11th Cir.

1996).

Plaintiff may use one-party consensual recording to advance its federal law claim even though

the recording violated Illinois state law. Century Consultants, Ltd. v. Miller Group, Inc., 2005

WL 3108455 (C.D. Ill.) (unpublished).

If in the course of assisting undercover federal operations private parties acted in good faith by

reasonably relying upon the authority of government agents, state law claims against the private

parties are barred by the supremacy clause. Brown v. Nationsbank Corporation, 188 F.3d 579

(5th Cir. 1999).

"Party to the Communication" under 18 U.S.C. 2511(2)(c) and (d)

A “party to the communication” under 2511(2)(d) is one who is present when the oral

communication is uttered and need not directly participate in the conversation. Inside Edition

producer, working undercover as a sales agent for a magazine sales company, wore a hidden

camera and microphone and recorded the day to day activities of the company that he observed

first hand. Pitts Sales, Inc. v. King World Productions, Inc., 383 F. Supp.2d 1354 (S.D. Fla

2005).

"The courts that have addressed the issue have held that a defendant has no reasonable

expectation of privacy in statements made in the presence of a government agent, even though

the agent was not participating in the conversation. See U.S. v. Coven, 662 F.2d 162 (2d Cir.

1981), cert. denied, 456 U.S. 916 (1982). The court finds that a conversation conducted in

Spanish in the presence of a third person does not carry any expectation of privacy 'that society

is prepared to recognize as 'reasonable,'' Katz v. U.S., 389 U.S. 347 (1967). Such a holding

would imply that someone speaking Spanish is entitled to a greater expectation of privacy than

someone who only speaks English." U.S. v. Torres, 983 F. Supp. 1346 (D. Kan. 1997).

American Airlines, as one of the parties to the communication (as the employer of the security

representative who monitored defendants' apparent misuse of American's computerized

reservation system) had consented to the monitoring. See 18 U.S.C. 2511(2)(d). U.S. v.

Mullins, 992 F.2d 1472 (9th Cir. 1993).

DEA agent who answered two calls to a cellular telephone more than two days after the

government seized it pursuant to federal forfeiture law (not for any investigatory purpose), was

not a party to the communications for the purposes of consent under 2511(2)(c) and therefore the

calls must be suppressed. U.S. v. Kim, 803 F. Supp. 352 (D. Hawaii 1992).

Where an accomplice who, in cooperation with police, recorded three-way conference call was

known by codefendant to be listening in on his conversation with defendant, and defendant was

told that the codefendant had the accomplice "on the line," the recording of the phone

conversation violated neither Fourth Amendment nor federal eavesdropping law. U.S. v. Miller,

720 F.2d 227 (1st Cir. 1983). See also U.S. v. Moncivais, 401 F.3d 751 (6th Cir. 2005)(citing

Miller).

In U.S. v. Foundas, 610 F.2d 298 (5th Cir. 1980), the defendant claimed that some of the

conversation in the agent's hotel room was not directed at the agent and, therefore, the agent (and

the hidden microphone) could not testify regarding those portions of the conversation. There

was no indication in the stipulated facts or the transcript that there were sotto voce remarks or

whispered asides. At any rate, the court said that if secret conversations were recorded, the

burden of proof was on the party seeking to suppress the tapes. Id. at footnote 2.

"A conversation belongs equally to all participants . . . no one can have an expectation of privacy

about the use of a conversation by a participant." U.S. v. Baldwin, 632 F.2d 1, 3 (6th Cir. 1980)

(Jones, J., dissenting from denial of petition for rehearing).

The Supreme Court has always sanctioned a certain degree of deception or subterfuge on the part

of law enforcement authorities as a necessary incident to the investigation of unlawful activities,

which are, by their nature, covert and secretive. U.S. v. Passarella, 788 F.2d 377 (6th Cir. 1986)

(agent answered telephone call to house where he was executing a search warrant, but did not

identify himself to defendant caller) (citing Lewis v. U.S., 385 U.S. 206 (1966); On Lee v. U.S.,

343 U.S. 747 (1952); U.S. v. Guidry, 534 F.2d 1220 (6th Cir. 1976)).

"The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to

the identity of one with whom one deals is probably inherent in the conditions of human society.

It is the kind of risk we necessarily assume whenever we speak." Lopez v. U.S., 373 U.S. 427

(1963) (dissenting opinion).

The Fourth Amendment does not protect a wrongdoer's misplaced belief that a person to whom

he voluntarily confides his wrongdoing will not reveal it. Hoffa v. U.S., 385 U.S. 293 (1966).

The Government's use of agents who themselves may reveal the contents of conversations with

an accused does not violate the Fourth Amendment. U.S. v. White, 401 U.S. 745 (1971). In re

Askin, 47 F.3d 100 (4th Cir. 1995) (endorsing unitary view of an intercepted communication).

Prisoner Monitoring

“[W]e hold that society is not prepared to recognize as legitimate any subjective expectation of

privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth

Amendment proscription against unreasonable searches does not apply within the confines of

the prison cell.” Hudson v. Palmer, 468 U.S. 517 (1984).

Prison officials are "investigative or law enforcement officers" within the meaning of the statute,

and monitoring pursuant to an established and posted prison policy is in the officers' "ordinary

course of duty" within the purview of 2510(5)(a)(ii). U.S. v. Lewis, 406 F.3d 11 (1st Cir. 2005)

(Mass. state corrections system inmate telephone system administrator); U.S. v. Gangi, 2003 WL

190822 (10th Cir.); U.S. v. Hammond, 286 F.3d 189 (4th Cir. 2002); Smith v. U.S. Department

of Justice, 251 F.3d 1047 (D.C. Cir. 2001); U.S. v. Van Poyck, 77 F.3d 285 (9th Cir. 1996); U.S.

v. Sababu, 891 F.2d 1308 (7th Cir. 1989); U.S. v. Feekes, 879 F.2d 1562 (7th Cir. 1989); U.S. v.

Paul, 614 F.2d 115 (6th Cir. 1980); U.S. v. Levy, 2005 WL 2179650 (E.D.N.Y.); Jennings v.

U.S., 2003 U.S. Dist. LEXIS 22264 (N.D. Ill.); U.S. v. Rivera, 292 F. Supp.2d 838 (E.D. Va.

2003)(applying Hammond; recognizes the absence of circuit case law squarely addressing

whether private phone contractors who provide telephone monitoring services to the prison

qualify as investigative or law enforcement officers under 2510(7), but finds that the language of

2518 permitting contractors to conduct interceptions under the supervision of an investigative or

law enforcement officer brings the contractually arranged provision of the means and equipment

for recording (no monitoring and no discretion concerning which calls to record; all monitoring

conducted by prison officials) within the law enforcement exception); U.S. v. Noriega, 764 F.

Supp. 1480 (S.D. Fla. 1991); U.S. v. Cheely, 814 F. Supp. 1430 (D. Alaska 1992); U.S. v. Vasta,

649 F. Supp. 974 (S.D.N.Y. 1986); See also U.S. v. Friedman, 300 F.3d 111 (2d Cir.

2002)(agreeing with Adams v. City of Battle Creek, 250 F.3d 980 (6th Cir. 2001) that notice

sufficient to support a finding of implied consent under 2511(2)(c) is not required for a recording

to fall within the “ordinary course” exception, and assuming arguendo that some notice is

required, holding that the defendant’s jailhouse notice was sufficient for the application of the

“ordinary course” exception and to dispose of Fourth Amendment claims related to his taped

calls).

In Campiti v. Walonis, 611 F.2d 387 (1st Cir. 1979), the First Circuit expressly reserved decision

as to whether monitoring in accordance with an established prison policy of which the prisoners

were informed could qualify as part of the ordinary course of business of a law enforcement

officer. "The issue in this circuit was in 1984, and still is, reasonably debatable." Langton v.

Hogan, 71 F.3d 930 (1st Cir. 1995). See also U.S. v. Lanoue, 71 F.3d 966 (1st Cir. 1995).

Employees of a private corporation operating a detention facility in Rhode Island are not

“investigative or law enforcement officers” for purposes of 2510(5)(a)(ii). Huguenin v. Ponte,

29 F. Supp.2d 57 (D. R.I. 1998); U.S. v. Faulkner, 323 F. Supp.2d 1111 (D. Kan. 2004)(citing

Huguenin).

Prison inmates impliedly consent to the interception of their telephone calls when the inmates

are fully informed of the monitoring and recording system, and notices posted above phones

explicitly state that use of the institutional phones constitutes consent to monitoring. U.S. v.

Footman, 215 F.3d 145 (1st Cir. 2000)(prisoners have no per se constitutional right to use a

telephone; there is little reason to believe that Congress was concerned with the privacy interests

of prison inmates); U.S. v. Workman, 80 F.3d 688 (2d Cir. 1996) (prisoner's telephone calls were

recorded on cassette from the start of his incarceration, and sent to law enforcement officials for

use in an ongoing criminal investigation. Between March 1991 and July 1992, prison officials

recorded approximately 1,000 separate conversations.); Gilday v. Dubois, 124 F.3d 277 (1st Cir.

1997) (prisoner had to consent in writing before using monitored prison telephone system and

parties were not connected unless call recipient responded appropriately to automatic recorded

message advising that call would be recorded). U.S. v. Van Poyck, 77 F.3d 285 (9th Cir. 1996);

U.S. v. Jones, 2003 WL 463444 (9th Cir.)(unpublished) (following Van Poyck; pretrial

detainees); U.S. v. Gangi, 2003 WL 190822 (10th Cir.)(following reasoning in Van Poyck); U.S.

v. Willoughby, 860 F.2d 15 (2d Cir. 1988); U.S. v. Amen, 831 F.2d 373 (2d Cir. 1987); U.S. v.

Hammond, 286 F.3d 189 (4th Cir. 2002); U.S. v. Apostolopuos, 2005 WL 2482525 (S.D.N.Y.);

U.S. v. Sutton, 2004 U.S. Dist. LEXIS 27743 (W.D. Ky.); U.S. v. Faulkner, 323 F. Supp.2d 1111

(D. Kan. 2004); U.S. v. Rivera, 292 F. Supp.2d 838 (E.D. Va. 2003) (applying Hammond; not

unreasonable for prison to compel defendant to make the choice between monitoring and no

phone use; the distinction between acquiescence and consent would only be persuasive if

defendant had a right to unmonitored telephone calls); U.S. v. Lombardo, 1999 U.S. Dist. LEXIS

7078 (S.D.N.Y.); U.S. v. Gotti, 42 F. Supp.2d 252 (S.D.N.Y. 1999); U.S. v. Rohlsen, 968 F.

Supp. 1049 (D. V.I. 1997); U.S. v. Perez, 940 F. Supp. 540 (S.D.N.Y. 1996); U.S. v. Escobar,

842 F. Supp. 1519 (E.D.N.Y. 1994); U.S. v. Heatly, 994 F. Supp. 483 (S.D.N.Y. 1998); U.S. v.

Kee, 2000 WL 760098 (S.D.N.Y.); U.S. v. Kaczowski, 114 F. Supp.2d 143 (W.D.N.Y. 2000).

In U.S. v. Horr, 963 F.2d 1124 (8th Cir. 1992), the Eighth Circuit affirmed the district court's

denial of a prisoner defendant's motion to suppress tapes of monitored prison telephone calls.

The district court based its decision on 2510(5)(a)(ii). The appellate court, however, based its

affirmance on implied consent, 2511(2)(c), rather than 2510(5)(a)(ii).

The BOP’s warrantless recording of an inmate’s telephonic communications was permissible

under both the “law enforcement” (2510(5)(a)(ii)) and “consent” (2511(2)(c)) exceptions to Title

III, and the FBI was free to use these intercepted conversations once they were excepted under

the provisions of Title III. The FBI obtained the tapes from the BOP by means of a subpoena.

U.S. v. Hammond, 286 F.3d 189 (4th Cir. 2002)(included “law enforcement” exception as well

as “consent” exception under the Seventh Circuit’s reasoning in In re High Fructose that Title III

exemption is for the entirety of Title III). See also U.S. v. Acklin, 2003 U.S. App. LEXIS 15437

(4th Cir.)(unpublished)(citing Hammond); U.S. v. Rivera, 292 F. Supp.2d 838 (E.D. Va. 2003)

(citing Hammond).

The issue of what constitutes "implied consent" in the context of the prison telephone monitoring

system has not yet been directly addressed by the First Circuit. It may reasonably be argued that

"implied consent" in this sense is not a free and voluntary consent. Langton v. Hogan, 71 F.3d

930 (1st Cir. 1995). See also, U.S. v. Lanoue, 71 F.3d 966 (1st Cir. 1995).

Recordings focused on a particular inmate, made to gather evidence in a criminal investigation

rather to advance prison security; made on separate cassettes, rather than on the reel-to-reel

containing all inmate calls; conducted for more than a year; and sent to the Buffalo Police and

the FBI for use in an ongoing criminal investigation was not monitoring by "a law enforcement

officer in the ordinary course of his duties" under 2510(5)(a)(ii). U.S. v. Green, 842 F. Supp. 68

(W.D.N.Y. 1994) (tapes nevertheless held to be admissible under theory of implied consent;

affirmed on appeal in U.S. v. Workman, 80 F.3d 688 (2d Cir. 1996)). See also U.S. v. Lanoue,

71 F.3d 966 (1st Cir. 1995).