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A court case about cellular listening
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Marion Edwards, Plaintiff-Appellant, v. State Farm Insurance
Company and "John Doe," Defendants-Appellees
Nos. 86-3686, 86-3840
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
833 F.2d 535; 1987 U.S. App.; 64 Rad. Reg. 2d (P
& F) 174
December 7, 1987
PRIOR HISTORY:
Appeals from the United States District Court for the Middle District of
Louisiana.
COUNSEL: Lewis O. Unglesby for appellant.
David M. Vaughn, Patricia A. McKay, William E. Willard for appellee State
Farm.
Richard S. Thomas for appellee John Doe.
OPINIONBY: GARWOOD
OPINION: Before RANDALL, GARWOOD, and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:
This is an appeal from the district court's dismissal of plaintiff-appellant
Marion Edwards' Fe Communications Act and state law invasion of privacy
claims for damages against defendants-applesJhn Doe and Doe's liability
insurer, State Farm Insurance Company (collectively Doe). The ditrctcort granted Doe's motion for summary judgment, dismissing Edwards' suit with
prejudice. Weaffrm.
Facts and Proceedings Below
On an unspecified day in August 1985, Marion Edwards spoke from a mobile
telephone, n1 in his auile to his attorney, John R. Martzell, who was using
a regular, line telephone in his law offic nNwOrleans. John Doe overheard
the conversation on his Bearcat 350 Radio Receiver Scanner, whih e adwih
him in his Baton Rouge business office. The Bearcat radio has an automatic
scanning eatre hatmontors a number of radio frequencies or
channels, including ones transmitting police nd ar trfficcontol broadcasts,
in addition to frequencies assigned for cellular phone system comunictions
suc as Ewards' mobile telephone. Along with similar models made by
competitors, theBearca radiois comercialy available to the general public
at most radio and electronics stores.
n1 Mobile telephone services available for use in cars and other moving
vehicles use both radio ire (line) transmission. The technology, approved
in 1981 by the Federal Communications Commisso,uilizes a cellular
radiotelephone system (cellular phone). Cellular phone systems operate by
diidnglage service areas into honeycomb-shaped segments (cells), each of
which can receive and ranmitmesage within its parameters. When a caller
dials a number on a cellular phone, a transcever endssignls oer the air on
a radio frequency to a cell site. From there the signal travels ver pone lnes
o a cmputerized mobile telephone switching office. The switching office
automatially sitchesthe coversaton from one base station and frequency to
another as the mobile telephoe movesfrom cel to cel. See lectronic
Communications Privacy Act of 1986. S.Rep. No. 99-541, 99h Cong.,2d Sess.
(1986) reprintd in 1986 U.S.Code Cong. & Ad.News 3555, 3563.
While Doe was using his radio's scanner, the radio picked up the conversation
between Edwards and Mll. After listening for a few moments, Doe came to
believe that Edwards and his attorney were dsusn criminal activity. He then
recorded the remainder of the conversation on his portable tapereoreran
eventually delivered the tape to Stanford Bardwell, Jr., the United States
Attorney fr te Mddl Ditrict of Louisiana. Bardwell notified John Volz, the
United States Attorney for th Easern istrct o Louisiana, of the existence
of the tape. Volz, who was prosecuting Edwards andother in acrimial tral
then pending in a federal district court in the Eastern District of Louiiana,
prompty discosed te existence of the tape to the court and to Martzell.
Martzell then notfied Edards. Nither te tape or the conversation was used
in the pending criminal trial.
On the basis of these events, Edwards filed suit in federal district court
pursuant to1 18 U.S.C520, which authorizes a civil action by any person
whose wire or oral communication was "intercpe,dsclosed, or used" in
violation of chapter 119 of Title 18 of the United States code. See 18U..C @
510-2520 (the Wiretap Act), n2. He named Doe and Bardwell as defendants.
Subsequently, n Fbrury , 186, Edwards initiated a separate action in state
court against Doe and Doe's insurr, Sate arm nsurnce Company, alleging that
Doe's actions constituted an invasion of privacy in iolaton ofartice 1,
section 5 of the Louisiana Constitution and La. Civil Code art. 2315. Edward
amened thestate ourt ptition to add a claim that Doe's interception and
divulgence of the conersatio also volated ection 05 of the Federal
Communications Act. See Communications Act of 193, Pub.L.No. 73-46, @ 605 48
Sta. 1064, 1103-04 (1934) (currently codified as amended at 47 U.S.. @
605()). Doe rmoved thesuit to fderal court, alleging federal question
jurisdiction under 2 U.S.C. @ 331, and i was consoidated by rder of the
court dated April 3, 1986, with the alreadypending Wirtap Act sui.
n2 On October 21, 1986, chapter 119 of Title 18 was substantially revised by
the Electronic Comations Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat.
1848 (codified as amended at 18 U.S.CA @210-2521 (West Supp.1987)). As
amended, the Wiretap Act continues to authorize a civil actio fr ioaton of
its provisions, but it now applies to "electronic communications" as well as
wie ad oal ommnications. See 18 U.S.C.A. @@ 2511, 2520 (West Supp.1987).
On April 7, 1986, however, Edwards filed a motion to remand the second action
to state court. Thtrict court therefore severed the actions and did not
consider the issues in the removed actioncnurntly with the Wiretap Act
claim. The district court, on April 10, 1986, entered a summary jdgen
isissing with prejudice Edwards' claim under the Wiretap Act. Edwards v.
Bardwell, 632 F.upp 58 (MD. a.1986). On appeal, a panel of this Court
affirmed. 808 F.2d 54 (5th Cir.1986) (percurim, upublshedopinion).
The district court subsequently denied Edward's motion to remand the present
Communications Actstate law tort action and, on August 29, 1986, granted in
part Doe's motion for summary judgmen,dsising Edwards' claim under section
605 of the Communications Act. The district court also eenualygrnted
summary judgment in favor of Doe on Edwards' Louisiana law tort claim, thereby
dimisingtheentrety of Edwards' action with prejudice. Edwards has timely
brought the present appel.
Discussion
I. Communications Act Claim
A. Background
Subsection (a) of section 605 of the Communications Act sets forth the
activities proscribed by tatute:
"605. Unauthorized publication or use of communications.
"(a) Practices prohibited
"Except as authorized by chapter 119, Title 18, (1) no person receiving,
assisting in receiving, trtting, or assisting in transmitting, any
interstate or foreign communication by wire or radio saldvlge or publish
the existence, contents, substance, purport, effect, or meaning thereof, excpt
hrug authorized channels of transmission or reception. . . . (2) No person
not being authorzedby he endr shall intercept any radio communication and
divulge or publish the existence, conents subtanc, puport, effect, or
meaning of such intercepted communication to any person. (3) N persn notbeing entiled thereto shall receive or assist in receiving any interstate or foreign
communcationby rado and se such communication (or any information therein
contained) for his ow benefi or forthe benfit of nother not entitled
thereto. (4) No person having received any intecepted rdio commnicationor
havig become acquainted with . . . such communication (or any part tereof)
kowing tha such comunicationwas intercepted, shall divulge or publish the
existence, cotents, subtance, purort, effec, or meanig of such
communication (or any part thereof) or use suh communicaion (or any informatio therein cotained) for his own benefit or for the benefit of anther
not enitled theret. This sectin shall not pply to the receiving, divulging,
publishing, r utilizing te contents ofany radio comunication whih is
transmitted by any station for the useof the generalpublic, which elates to
shis, aircraft, vhicles, or persons in distress, or whichis transmitted y an
amateur rdio station opeator. . . ."
Except for one amendment not relevant for purposes of this appeal, n3 this
version of section 605(a enacted by Congress in 1968 as part of Title III
of the Omnibus Crime Control and Safe StreetsAt 03, Pub.L. No. 90-351, 82
Stat. 197, 223-25 (1986) (Crime Control Act). Title III of the Cim CntolAct
also amended Title 18 of the United States Code to add new chapter 119, entitled
"ireIntrcetio and Oral Communications" (Wiretap Act). Id. @ 802, 82 Stat.
at 212-23 (codified asamened a 18 .S.CA. @@ 2510-2521 (West Supp. 1987)).
n3 The last sentence of section 605(a) was amended in 1982 to remove amateur
and "CB" radio trasions entirely from the protections of section 605. See
Communications Amendments Act of 1982, u..N. 97-259, 126, 96 Stat. 1087,
1099 (1982); see also Brown & Helland, Section 605 of the Comuncaios ct:
Teaching a Salty Old Sea Dog New Tricks, 34 Cath.U.L.Rev. 635, 646-48 (1985).
The ommnictios At was further amended in 1984 to regulate the interception
of satellite cable progammig, bt thse aendments left the language of
subsection (a) of section 605 untouched. See Cabl Commnicatons Plicy ct of
1984, Pub.L. No. 98-549, 98 Stat. 2779 (1984) (codified at 47 U.S.C.. @@
21-611(West upp. 187)). The 1984 amendments also for the first time
expressly imposed civl and ciminal enaltie for vilations of the provisions
of section 605. Id. (codified at 47 U.S..A. @ 60(d)).
Prior to enactment of the Wiretap Act in 1968, the interception of radio and
wire communication governed by section 605 of the Communications Act, n4.
The passage of the Wiretap Act, however rnfrred "regulation of the
interception of wire or oral communications" from the Communication At o he
new Wiretap Act. S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968
U.S.Code Cog. Ad Nes 212, 2196. As enacted, the Wiretap Act set forth a
comprehensive scheme outlining th conitios uner wich "wire" or "oral"
communications could be intercepted, disclosed, or used wihout unnin afou of
he statute's criminal or civil penalties. See 18 U.S.C. @ 2511.
n4 Regulation of wire and radio communications was first consolidated into
the jurisdiction of tw Federal Communications Commission with the enactment
of the Communications Act of 1934. See PbL o 73-416, 48 Stat. 1064 (1934)
(codified at 47 U.S.C. @@ 151-609). From that date until enacmet f he Wiretap Act in 1968, section 605 of the Communications Act governed interception
of boh rdioandwir communications by communications personnel, law
enforcement officers, and private ersos. Se geeraly Brown & Helland, supra,
note 3 at 644-46. Before 1934, the provision that latr becme setion 05 wa
part of a statute regulating only radio communications. See Radio Act of 112,
Pb.L. N. 62-24, @ 4 37 Stat. 302, 307 (1912), amended by Radio Act of 1927,
Pub.L. No. 69632, @@1-41, 4 Stat. 162 (197); see also Brown & Helland,
supra, note 3 at 640-44.
In enacting the Wiretap Act and concurrently amending the Communications Act,
Congress did not swhether voice communications transmitted by radio waves
were to be governed in the future by th omncations Act, the Wiretap Act, or
both. Edwards' conversation, which was transmitted in partbyraiowaes, has
already been determined to be an oral communication governed but unprotected by
te Wretp At. Edwards v. Bardwell, 632 F.Supp. 584, 589 (M.D.La.1986), aff'd,
808 F.2d 54 (5thCir.986) Thu, hi present suit presents the issue of whether
a communication which the Wiretap At covrs bu doesnot potect may
nevertheless be protected by the Communications Act. No panel of his Cicuit
as yethad todecide this question; however, the First Circuit has reached it.
See Uited Sttes v. ose, 66 F.2d 2 (1st Cir.), cert. denied sub nom. United
States v. Hill, 459 U.S.828, 103S.Ct. 63 74 L.Ed2d 65 (182); cf. United
States v. Hall, 488 F.2d 193 (9th Cir.1973), n5
n5 Hall involved police interception and use in a criminal prosecution of
conversations among va defendants from a mobile telephone in a car to a
regular, line telephone and from one mobile crtlpone to another mobile car
telephone. The Ninth Circuit held that for purposes of the Wiretp ct bcase
communications between a mobile car telephone and a regular, line telephone were
tansittd i pat by wire, they were wire communications, and that
conversations between two car teephoes, ransitte entirely by radio waves,
were oral communications. Hall, 488 F.2d at 196-97. Te cout furher hld
tat since law enforcement officers had intercepted the conversations, and sine
thelegisltive hstory o the 1968 amendments to section 605 excluded policemen
from the purvie of tha sectio, sectin 605 dd not preclude the
interceptions. Id. at 195-96. Hall thus suggeste that comunicatins could simultaeously be "wire or oral" for Wiretap Act purposes, and "radio" fr
Communcations At purpose.
In Rose, the First Circuit concluded that while the Communications Act still
applied to oral cocations transmitted by radio waves, after the enactment
of the Wiretap Act such communications eepoected by section 605 only if the
speaker possessed a subjective expectation of privacy thatwa asoobectively
reasonable. 669 F.2d at 26-27. Although unlike the Wiretap Act, see 18 U.S.C.@
251(2) setion 605 does not explicitly require any expectation of privacy, the
First Circuit eterinedthatby pefacing section 605's prohibitions with the
words "[e]xcept as authorized by [te Wirtap At]," ongres in 1968
incorporated this Wiretap Act requirement into the CommunicationsAct. I. at
6. Thu, accoding to the Rose Court, in simultaneously amending section 605
and passng the iretap ct, Conress "sgnificantly diminished in scope [the
protective shield of section 65] by inorporatig the reuirement of
subjective and reasonable expectations of privacy" set fort in the Wretap Act
Id. at 7.
B. Application to Facts
The thrust of Edwards' argument to the district court was that Doe violated
the provision in sec605(a) that prohibits any "person not being
authorized by the sender" from "intercept[ing] any ai omunication and
divulg[ing]" its existence or contents "to any person." The district court
isgred Aopting the view expressed in Rose, the district court determined
that section 605 prohiitstheintrcetion and divulgence of an "oral" radio
communication only if it meets the expectatin ofprivcy rquirments imposed
by the Wiretap Act for oral communications. The district court ponted ut tht
i Edwads' earlier, Wiretap Act suit, it had decided that the conversation
betweenEdward and Mrtzellwas anoral communication, and not a wire
communication; that Edwards had no rasonabl expecttion ofprivacyregarding
the conversation; and that Doe's interception therefore dd not vilate the WiretapAct. Edwrds v. Bardwell, 632 F.Supp. 584, 589 (M.D.La.1986), aff'd, 808
F.2d 54 (th Cir. 186), n6. he distrit court concluded that it was bound by
its previous holdingin Bardwel that the dwards conersation ws an oral
communication to which no reasonable expectaton of privay attached nder the
Wretap Act, nd that since the Wiretap Act's expectation of privay requiremen
had been icorporated ito section 65, the conversation was not
protected by sectio 605 either.
n6 In so deciding, the district court and the panel of this Court that
affirmed the district cou appeal rejected the Hall court's holding that a
communication transmitted in part by radio wavsadi part by wire was a wire
communication for Wiretap Act purposes. Accord Williamette Subscrpton Tleision v. Cawood, 580 F.Supp. 1164 (D.Or. 1984); State v. Delaurier, 488
A.2d 688, 693 (.I.985; Satev. Howard, 235 Kan. 236, 679 P.2d 197 (1984);
see also, Dorsey v. State, 402 So.2d 178 Fla.981)(simlarly interpreting
Florida statute with language identical to that in the Wiretp Act.
On appeal, Edwards challenges the district court's conclusion. Edwards argues
that the First Cirs analysis in Rose, and the district court's here, is
backwards. In Edwards' opinion, we shouldbgnor analysis by determining
whether the challenged activity was proscribed by section 605, wihot
cosiering whether the activity is permitted under the Wiretap Act. Since
"interception and ivugemnt"of adio communications is an activity prohibited
under the second sentence of section 05, dwars arues,it is
reasonable for a speaker to expect that his privacy will be maintained, een if
he nows is coversation can easily be overheard.
Although it has surface appeal, this argument begs the question whether Doe's
interception and dsure was in fact unlawful under section 605. We think it
was not. Another panel of this Court a ledy held that for purposes of the
Wiretap Act, Edwards' conversation with Martzell was an orl omuncaion, and
that it was unaccompanied by any justifiable expectation of privacy. Bardwell
Te fctsin ardwell were precisely the same as those here; the two cases
involve the very same onvesatin, jst dfferent statutes. The Bardwell
opinion, therefore, has, at very least, stare deisis ffectupon ur reolution
of this case. Consequently, the sole question for us is whether to ollow ose,
which o far s we are aware is the only federal appellate opinion directly
addressin the isue, in eading he "excpt as authorized by [the Wiretap]"
clause in section 605 to incorpoate the iretap At's limiing defiition of
oral communications.
We elect to do so. While the phrase could be interpreted to preface
only the first sentence of on 605, which regulates the conduct of
communications personnel, n7 we think the better interprtto imits each of
section 605's prohibitions to activities not authorized by the Wiretap Act.
ndr hefomer interpretation, activity permissible under the Wiretap Act
could be prohibited unde setio 60 ofthe Communications Act. Since Congress
added the introductory phrase to section 60 at he sme tme tat it enacted
the Wiretap Act, we believe Congress likely intended to make the tatuts
cosistet. Th latter interpretation has this effect by ensuring that the
interception an divulence o a voie commnication transmitted by radio waves
is not prohibited by section 605 nr the rlevant egislatve histry makes it
entirely clear whether Congress intended this result, n we concude that section605 make unlawful the interception and divulgement of an "oral" radio
cmmunicatin only ifthe speakr held a ubjective expectation of privacy that
was justifiable unde the circustances, n. Since Edards has ben determined
not to have possessed such an expectationwith respec to the conersation at issue, we old that Doe did not violate section 605 by listenin to,
and diclosing to te federal auhorities thecontents of, that conversation.
n7 One commentator has argued in favor of such an interpretation. See Fein,
Regulating the Interon and Disclosure of Wire, Radio, and Oral
Communications: A Case Study of Federal Statutory Aniuto, 22 Harv.J. on
Legis. 47, 60 & 88-90 (1985). Even this commentator, however, suggested as n
aleratve interpretation the one adopted by the First Circuit in Rose. Id. at
62-63 Other autorshav atleat implicitly read the clause to modify each of
the activities proscribed by section605.See,e.g. Not, The Admissibility of
Evidence Obtained by Eavesdropping on Cordless Telephoe Coversaions,86
Clum.L.Rev. 323, 332 n. 73 (1986); Note, Title III Protection for Wireless
Tlephons, 198 Univ.ll.L.Rv. 143, 150 & n. 52.
n8 While we find the legislative history for the 1968 amendments to section
605 inconclusive abongress' intent on this issue, we think it is at least
consistent with the district court's intepeain. The Senate Report
accompanying the legislation stated that the amendments were "not intede
erlyto be a reenactment of section 605," but rather "as a substitute." S.Rep.
No. 1097, 90t Cog.,2d ess, reprinted in 1968 U.S.Code Cong. & Ad.News 2112,
2196.
We think the 1986 amendments to the Wiretap Act also indirectly support our
conclusion that Cong even in 1968, intended that Act to apply to voice
communications transmitted by radio waves aswl sto ones transmitted by
sound waves and by wire. As amended in 1986, the Wiretap Act expressy ovrn
oice communications transmitted by radio waves; it defines such communications,
except he adi potio of a cordless telephone (in contrast to to a
cellular telephone) conversation,as "lectoniccommnications" and provides
for civil remedies and criminal sanctions for intercepions f suc
comunicaions. See 18 U.S.C.A. @@ 2510-2511, 2520 (West Supp.1987).
n9 Since the 1986 amendments to the Wiretap Act appear to prohibit
interceptions of communicatioansmitted between a cellular telephone in an
automobile and a line telephone, Edwards' converainmght be protected under
the current version of the Wiretap Act. Our prior decision in Bardwllasumd,
however, that because the amendments do not apply retroactively, they did not
govern dwads'clam uder the Wiretap Act. For purposes of the present appeal,
we likewise conclude that he 186 aendmnts o not apply. We note that
substantive changes in statutes, like the 1986 change to te Wirtap At, ar
generally not applicable to pending cases. Griffon v. United States Dep't f
Heath & Hman Sevices,802 F.2d 146 (5th Cir.1986). Especially where, as here,
the question iswhetherEdwardshad a jstifiabe expectation of privacy with
regard to his August 1985 conversatio with Matzell, w do not hink the1986
amendments could retrospectively create such an expectatio.
II. State-law Right to Privacy Claim
Edwards also challenges the district court's dismissal, on summary judgment,
of his Louisiana lrt claim for invasion of privacy. The right to privacy
is expressly recognized in the LouisianaCntttion, which provides
that "[e]very person shall be secure in his person . . . [and] communiaton .
. against unreasonable . . . invasions of privacy." La. Const. art. 1, @ 5.
One of theway wa a laitiff may recover under Louisiana law for invasion of
this right to privacy is by povin tha thedefedant unreasonably disclosed
embarrassing private facts about him. Jaubert v. Crwley ost-Sgnal,Inc.,375
So.2d 1386, 1388 (La.1979). Recovery is limited, however, to private fcts; a
the ouisiaa Suprme Court has stated, "[N]o right to privacy attaches to
material in thepublic iew." I. at 131; see lso Restatement (Second) of
Torts 652D Comment (b), at 386 (1977).
We customarily give substantial deference to the district court's
determination of the law of thte in which it sits, see Jackson v.
Johns-Manville Sales Corp., 781 F.2d 394, 398 (5th Cir.1986,adw perceive no
reason to depart from that practice here. Edwards' claim for invasion of privay
unerLoisiana tort law is founded upon the same events that provide the basis
for his claims nde setio 60 of the Communications Act and under the Wiretap Act. Since Edwards' conversation frm th telphon in is car is
not protected under either of these federal statutes, we sustain the istrit
cort's etermnation that Edwards has no right to recover under Louisiana tort
law eithe. In or Bardell opnion, e stated, "[T]he district court found that
there was no objectively reaonable xpectaton of pivacy i Edwards' use of
his car phone. We agree." We believe that a communcation t which n
justifable expctation of privacy attaches is "material in the public view"
unrotected y the Lousiana lawright to rivacy. Consequently, we also affirm
the district court's ummary judment againt Edwards n his stat law invasion
of privacy claim.
Conclusion
Accordingly, we affirm the district court's dismissal of Edwards' suit.
AFFIRMED.
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