121 S.Ct. 1753

Supreme Court of the United States

Gloria BARTNICKI and Anthony F. Kane, Jr., Petitioners,
v.
Frederick W. VOPPER, aka Fred Williams, et al.

United States, Petitioner,
v.
Frederick W. Vopper, aka Fred Williams, et al.

Nos. 99–1687, 99–1728.

Argued Dec. 5, 2000.
Decided May 21, 2001.

Jeremiah A. Collins, Washington, DC, for petitioners in 99–1687.

Seth P. Waxman, Washington, DC, for petitioner in 99–1728.

Lee Levine, Washington, DC, for respondents Frederick W. Vopper, et al.

Thomas C. Goldstein, Washington, DC, for respondent Jack Yocum.

Justice STEVENS delivered the opinion of the Court.

These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication. That question is both novel and narrow. Despite the fact that federal law has prohibited such disclosures since 1934,[FN1] this is the first time that we have confronted such an issue.

The suit at hand involves the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue. The persons who made the disclosures did not participate in the interception, but they did know—or at least had reason to know—that the interception was unlawful. Accordingly, these cases present a conflict between interests of the highest order—on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech. The Framers of the First Amendment surely did not foresee the advances in science that produced the conversation, the interception, or the conflict that gave rise to this action. It is therefore not surprising that Circuit judges, as well as the Members of this Court, have come to differing conclusions about the First Amendment's application to this issue. Nevertheless, having considered the interests at stake, we are firmly convinced that the disclosures made by respondents in this suit are protected by the First Amendment.

I

During 1992 and most of 1993, the Pennsylvania State Education Association, a union representing the teachers at the Wyoming Valley West High School, engaged in collective-bargaining negotiations with the school board. Petitioner Kane, then the president of the local union, testified that the negotiations were “ ‘contentious' ” and received “a lot of media attention.” App. 79, 92. In May 1993, petitioner Bartnicki, who was acting as the union's “chief negotiator,” used the cellular phone in her car to call Kane and engage in a lengthy conversation about the status of the negotiations. An unidentified person intercepted and recorded that call.

In their conversation, Kane and Bartnicki discussed the timing of a proposed strike, id., at 41–45, difficulties created by public comment on the negotiations, id., at 46, and the need for a dramatic response to the board's intransigence. At one point, Kane said: “ ‘If they're not gonna move for three percent, we're gonna have to go to their, their homes .... To blow off their front porches, we'll have to do some work on some of those guys. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE).’ ” Ibid.

In the early fall of 1993, the parties accepted a nonbinding arbitration proposal that was generally favorable to the teachers. In connection with news reports about the settlement, respondent Vopper, a radio commentator who had been critical of the union in the past, played a tape of the intercepted conversation on his public affairs talk show. Another station also broadcast the tape, and local newspapers published its contents. After filing suit against Vopper and other representatives of the media, Bartnicki and Kane (hereinafter petitioners) learned through discovery that Vopper had obtained the tape from respondent Jack Yocum, the head of a local taxpayers' organization that had opposed the union's demands throughout the negotiations. Yocum, who was added as a defendant, testified that he had found the tape in his mailbox shortly after the interception and recognized the voices of Bartnicki and Kane. Yocum played the tape for some members of the school board, and later delivered the tape itself to Vopper.

II

In their amended complaint, petitioners alleged that their telephone conversation had been surreptitiously intercepted by an unknown person using an electronic device, that Yocum had obtained a tape of that conversation, and that he intentionally disclosed it to Vopper, as well as other individuals and media representatives. Thereafter, Vopper and other members of the media repeatedly published the contents of that conversation. The amended complaint alleged that each of the defendants “knew or had reason to know” that the recording of the private telephone conversation had been obtained by means of an illegal interception. Id., at 27. Relying on both federal and Pennsylvania statutory provisions, petitioners sought actual damages, statutory damages, punitive damages, and attorney's fees and costs.[FN2]

After the parties completed their discovery, they filed cross-motions for summary judgment. Respondents contended that they had not violated the statute because (a) they had nothing to do with the interception, and (b) in any event, their actions were not unlawful since the conversation might have been intercepted inadvertently. Moreover, even if they had violated the statute by disclosing the intercepted conversation, respondents argued, those disclosures were protected by the First Amendment. The District Court rejected the first statutory argument because, under the plain statutory language, an individual violates the federal Act by intentionally disclosing the contents of an electronic communication when he or she “know[s] or ha[s] reason to know that the information was obtained” through an illegal interception.[FN3] App. to Pet. for Cert. in No. 99–1687, pp. 53a–54a (emphasis deleted). Accordingly, actual involvement in the illegal interception is not necessary in order to establish a violation of that statute. With respect to the second statutory argument, the District Court agreed that petitioners had to prove that the interception in question was intentional,[FN4] but concluded that the text of the interception raised a genuine issue of material fact with respect to intent. That issue of fact was also the basis for the District Court's denial of petitioners' motion. Finally, the District Court rejected respondents' First Amendment defense because the statutes were content-neutral laws of general applicability that contained “no indicia of prior restraint or the chilling of free speech.” Id., at 55a–56a.

Thereafter, the District Court granted a motion for an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b). It certified as controlling questions of law: “(1) whether the imposition of liability on the media Defendants under the [wiretapping statutes] solely for broadcasting the newsworthy tape on the Defendant [Vopper's] radio news/public affairs program, when the tape was illegally intercepted and recorded by unknown persons who were not agents of [the] Defendants, violates the First Amendment; and (2) whether imposition of liability under the aforesaid [wiretapping] statutes on Defendant Jack Yocum solely for providing the anonymously intercepted and recorded tape to the media Defendants violates the First Amendment.” App. to Pet. for Cert. in No. 99–1728, p. 76a. The Court of Appeals accepted the appeal, and the United States, also a petitioner, intervened pursuant to 28 U.S.C. § 2403 in order to defend the constitutionality of the federal statute.

All three members of the panel agreed with petitioners and the Government that the federal and Pennsylvania wiretapping statutes are “content-neutral” and therefore subject to “intermediate scrutiny.” 200 F.3d 109, 121 (C.A.3 1999). Applying that standard, the majority concluded that the statutes were invalid because they deterred significantly more speech than necessary to protect the privacy interests at stake. The court remanded the case with instructions to enter summary judgment for respondents. In dissent, Senior Judge Pollak expressed the view that the prohibition against disclosures was necessary in order to remove the incentive for illegal interceptions and to preclude compounding the harm caused by such interceptions through wider dissemination. In so doing, he agreed with the majority opinion in a similar case decided by the Court of Appeals for the District of Columbia, Boehner v. McDermott, 191 F.3d 463 (C.A.D.C.1999). See also Peavy v. WFAA–TV, Inc., 221 F.3d 158 (C.A.5 2000).[FN5] We granted certiorari to resolve the conflict. 530 U.S. 1260, 120 S.Ct. 2716, 147 L.Ed.2d 981 (2000).

III

As we pointed out in Berger v. New York, 388 U.S. 41, 45–49, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), sophisticated (and not so sophisticated) methods of eavesdropping on oral conversations and intercepting telephone calls have been practiced for decades, primarily by law enforcement authorities.[FN6] In Berger, we held that New York's broadly written statute authorizing the police to conduct wiretaps violated the Fourth Amendment. Largely in response to that decision, and to our holding in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that the attachment of a listening and recording device to the outside of a telephone booth constituted a search, “Congress undertook to draft comprehensive legislation both authorizing the use of evidence obtained by electronic surveillance on specified conditions, and prohibiting its use otherwise. S.Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968), U.S.Code Cong. & Admin.News 1968, pp. 2112, 2153.” Gelbard v. United States, 408 U.S. 41, 78, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972) (REHNQUIST, J., dissenting). The ultimate result of those efforts was Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, entitled Wiretapping and Electronic Surveillance.

One of the stated purposes of that title was “to protect effectively the privacy of wire and oral communications.” Ibid. In addition to authorizing and regulating electronic surveillance for law enforcement purposes, Title III also regulated private conduct. One part of those regulations, § 2511(1), defined five offenses punishable by a fine of not more than $10,000, by imprisonment for not more than five years, or by both. Subsection (a) applied to any person who “willfully intercepts ... any wire or oral communication.” Subsection (b) applied to the intentional use of devices designed to intercept oral conversations; subsection (d) applied to the use of the contents of illegally intercepted wire or oral communications; and subsection (e) prohibited the unauthorized disclosure of the contents of interceptions that were authorized for law enforcement purposes. Subsection (c), the original version of the provision most directly at issue in this suit, applied to any person who “willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection.” The oral communications protected by the Act were only those “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” § 2510(2).

As enacted in 1968, Title III did not apply to the monitoring of radio transmissions. In the Electronic Communications Privacy Act of 1986, 100 Stat. 1848, however, Congress enlarged the coverage of Title III to prohibit the interception of “electronic” as well as oral and wire communications. By reason of that amendment, as well as a 1994 amendment which applied to cordless telephone communications, 108 Stat. 4279, Title III now applies to the interception of conversations over both cellular and cordless phones.[FN7] Although a lesser criminal penalty may apply to the interception of such transmissions, the same civil remedies are available whether the communication was “oral,” “wire,” or “electronic,” as defined by 18 U.S.C. § 2510 (1994 ed. and Supp. V).

IV

The constitutional question before us concerns the validity of the statutes as applied to the specific facts of these cases. Because of the procedural posture of these cases, it is appropriate to make certain important assumptions about those facts. We accept petitioners' submission that the interception was intentional, and therefore unlawful, and that, at a minimum, respondents “had reason to know” that it was unlawful. Accordingly, the disclosure of the contents of the intercepted conversation by Yocum to school board members and to representatives of the media, as well as the subsequent disclosures by the media defendants to the public, violated the federal and state statutes. Under the provisions of the federal statute, as well as its Pennsylvania analogue, petitioners are thus entitled to recover damages from each of the respondents. The only question is whether the application of these statutes in such circumstances violates the First Amendment.[FN8]

In answering that question, we accept respondents' submission on three factual matters that serve to distinguish most of the cases that have arisen under § 2511. First, respondents played no part in the illegal interception. Rather, they found out about the interception only after it occurred, and in fact never learned the identity of the person or persons who made the interception. Second, their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else. Cf. Florida Star v. B.J.F., 491 U.S. 524, 536, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (“Even assuming the Constitution permitted a State to proscribe receipt of information, Florida has not taken this step”). Third, the subject matter of the conversation was a matter of public concern. If the statements about the labor negotiations had been made in a public arena—during a bargaining session, for example—they would have been newsworthy. This would also be true if a third party had inadvertently overheard Bartnicki making the same statements to Kane when the two thought they were alone.

V

We agree with petitioners that § 2511(1)(c), as well as its Pennsylvania analog, is in fact a content-neutral law of general applicability. “Deciding whether a particular regulation is content based or content neutral is not always a simple task.... As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642–643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In determining whether a regulation is content based or content neutral, we look to the purpose behind the regulation; typically, “[g]overnment regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech.’ ” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).[FN9]

In this suit, the basic purpose of the statute at issue is to “protec [t] the privacy of wire[, electronic,] and oral communications.” S.Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968), U.S.Code Cong. & Admin.News 1968, pp. 2112, 2153. The statute does not distinguish based on the content of the intercepted conversations, nor is it justified by reference to the content of those conversations. Rather, the communications at issue are singled out by virtue of the fact that they were illegally intercepted—by virtue of the source, rather than the subject matter.

On the other hand, the naked prohibition against disclosures is fairly characterized as a regulation of pure speech. Unlike the prohibition against the “use” of the contents of an illegal interception in § 2511(1)(d),[FN10] subsection (c) is not a regulation of conduct. It is true that the delivery of a tape recording might be regarded as conduct, but given that the purpose of such a delivery is to provide the recipient with the text of recorded statements, it is like the delivery of a handbill or a pamphlet, and as such, it is the kind of “speech” that the First Amendment protects.[FN11] As the majority below put it, “[i]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct.” 200 F.3d, at 120.

VI

As a general matter, “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979). More specifically, this Court has repeatedly held that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need ... of the highest order.” Id., at 103, 99 S.Ct. 2667; see also Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978).

Accordingly, in New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam), the Court upheld the right of the press to publish information of great public concern obtained from documents stolen by a third party. In so doing, that decision resolved a conflict between the basic rule against prior restraints on publication and the interest in preserving the secrecy of information that, if disclosed, might seriously impair the security of the Nation. In resolving that conflict, the attention of every Member of this Court was focused on the character of the stolen documents' contents and the consequences of public disclosure. Although the undisputed fact that the newspaper intended to publish information obtained from stolen documents was noted in Justice Harlan's dissent, id., at 754, 91 S.Ct. 2140, neither the majority nor the dissenters placed any weight on that fact.

However, New York Times v. United States raised, but did not resolve, the question “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well.”[FN12] Florida Star, 491 U.S., at 535, n. 8, 109 S.Ct. 2603. The question here, however, is a narrower version of that still-open question. Simply put, the issue here is this: “Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?” Boehner, 191 F.3d, at 484–485 (Sentelle, J., dissenting).

Our refusal to construe the issue presented more broadly is consistent with this Court's repeated refusal to answer categorically whether truthful publication may ever be punished consistent with the First Amendment. Rather,

“[o]ur cases have carefully eschewed reaching this ultimate question, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily.... We continue to believe that the sensitivity and significance of the interests presented in clashes between [the] First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.”

Florida Star, 491 U.S., at 532–533, 109 S.Ct. 2603. See also Landmark Communications, 435 U.S., at 838, 98 S.Ct. 1535. Accordingly, we consider whether, given the facts of these cases, the interests served by § 2511(1)(c) can justify its restrictions on speech.

The Government identifies two interests served by the statute—first, the interest in removing an incentive for parties to intercept private conversations, and second, the interest in minimizing the harm to persons whose conversations have been illegally intercepted. We assume that those interests adequately justify the prohibition in § 2511(1)(d) against the interceptor's own use of information that he or she acquired by violating § 2511(1)(a), but it by no means follows that punishing disclosures of lawfully obtained information of public interest by one not involved in the initial illegality is an acceptable means of serving those ends.

The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it. If the sanctions that presently attach to a violation of § 2511(1)(a) do not provide sufficient deterrence, perhaps those sanctions should be made more severe. But it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party. Although there are some rare occasions in which a law suppressing one party's speech may be justified by an interest in deterring criminal conduct by another, see, e.g., New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982),[FN13] this is not such a case.

With only a handful of exceptions, the violations of § 2511(1)(a) that have been described in litigated cases have been motivated by either financial gain or domestic disputes.[FN14] In virtually all of those cases, the identity of the person or persons intercepting the communication has been known.[FN15] Moreover, petitioners cite no evidence that Congress viewed the prohibition against disclosures as a response to the difficulty of identifying persons making improper use of scanners and other surveillance devices and accordingly of deterring such conduct,[FN16] and there is no empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions.[FN17]

Although this suit demonstrates that there may be an occasional situation in which an anonymous scanner will risk criminal prosecution by passing on information without any expectation of financial reward or public praise, surely this is the exceptional case. Moreover, there is no basis for assuming that imposing sanctions upon respondents will deter the unidentified scanner from continuing to engage in surreptitious interceptions. Unusual cases fall far short of a showing that there is a “need ... of the highest order” for a rule supplementing the traditional means of deterring antisocial conduct. The justification for any such novel burden on expression must be “far stronger than mere speculation about serious harms.” United States v. Treasury Employees, 513 U.S. 454, 475, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995).[FN18] Accordingly, the Government's first suggested justification for applying § 2511(1)(c) to an otherwise innocent disclosure of public information is plainly insufficient.[FN19]

The Government's second argument, however, is considerably stronger. Privacy of communication is an important interest, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985),[FN20] and Title III's restrictions are intended to protect that interest, thereby “encouraging the uninhibited exchange of ideas and information among private parties....” Brief for United States 27. Moreover, the fear of public disclosure of private conversations might well have a chilling effect on private speech.

“In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.”

President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967).

Accordingly, it seems to us that there are important interests to be considered on both sides of the constitutional calculus. In considering that balance, we acknowledge that some intrusions on privacy are more offensive than others, and that the disclosure of the contents of a private conversation can be an even greater intrusion on privacy than the interception itself. As a result, there is a valid independent justification for prohibiting such disclosures by persons who lawfully obtained access to the contents of an illegally intercepted message, even if that prohibition does not play a significant role in preventing such interceptions from occurring in the first place.

We need not decide whether that interest is strong enough to justify the application of § 2511(c) to disclosures of trade secrets or domestic gossip or other information of purely private concern. Cf. Time, Inc. v. Hill, 385 U.S. 374, 387–388, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) (reserving the question whether truthful publication of private matters unrelated to public affairs can be constitutionally proscribed). In other words, the outcome of these cases does not turn on whether § 2511(1)(c) may be enforced with respect to most violations of the statute without offending the First Amendment. The enforcement of that provision in these cases, however, implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern.

In these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: “The right of privacy does not prohibit any publication of matter which is of public or general interest.” The Right to Privacy, 4 Harv. L.Rev. 193, 214 (1890). One of the costs associated with participation in public affairs is an attendant loss of privacy.

“Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. ‘Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ ”

Time, Inc. v. Hill, 385 U.S., at 388, 87 S.Ct. 534 (quoting Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)).[FN21]

Our opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), reviewed many of the decisions that settled the “general proposition that freedom of expression upon public questions is secured by the First Amendment.” Id., at 269, 84 S.Ct. 710; see Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Those cases all relied on our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times, 376 U.S., at 270, 84 S.Ct. 710; see Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Whitney v. California, 274 U.S. 357, 375–376, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring); see also Roth, 354 U.S., at 484, 77 S.Ct. 1304; Stromberg, 283 U.S., at 369, 51 S.Ct. 532; Bridges, 314 U.S., at 270, 62 S.Ct. 190. It was the overriding importance of that commitment that supported our holding that neither factual error nor defamatory content, nor a combination of the two, sufficed to remove the First Amendment shield from criticism of official conduct. Id., at 273, 62 S.Ct. 190; see also NAACP v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); Pennekamp v. Florida, 328 U.S. 331, 342, 343, n. 5, 345, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); Bridges, 314 U.S., at 270, 62 S.Ct. 190.

We think it clear that parallel reasoning requires the conclusion that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.[FN22] The months of negotiations over the proper level of compensation for teachers at the Wyoming Valley West High School were unquestionably a matter of public concern, and respondents were clearly engaged in debate about that concern. That debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis' classic opinion in Whitney v. California, 274 U.S., at 372, 47 S.Ct. 641, but it is no less worthy of constitutional protection.

The judgment is affirmed. It is so ordered.

Justice BREYER, with whom Justice O'CONNOR joins, concurring.

I join the Court's opinion. I agree with its narrow holding limited to the special circumstances present here: (1) the radio broadcasters acted lawfully (up to the time of final public disclosure); and (2) the information publicized involved a matter of unusual public concern, namely, a threat of potential physical harm to others. I write separately to explain why, in my view, the Court's holding does not imply a significantly broader constitutional immunity for the media.

As the Court recognizes, the question before us—a question of immunity from statutorily imposed civil liability—implicates competing constitutional concerns. Ante, at 1763–1764. The statutes directly interfere with free expression in that they prevent the media from publishing information. At the same time, they help to protect personal privacy—an interest here that includes not only the “right to be let alone,” Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting), but also “the interest ... in fostering private speech,” ante, at 1756. Given these competing interests “on both sides of the equation, the key question becomes one of proper fit.” Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 227, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (BREYER, J., concurring in part). See also Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 402, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (BREYER, J., concurring).

I would ask whether the statutes strike a reasonable balance between their speech-restricting and speech-enhancing consequences. Or do they instead impose restrictions on speech that are disproportionate when measured against their corresponding privacy and speech-related benefits, taking into account the kind, the importance, and the extent of these benefits, as well as the need for the restrictions in order to secure those benefits? What this Court has called “strict scrutiny”—with its strong presumption against constitutionality—is normally out of place where, as here, important competing constitutional interests are implicated. See ante, at 1756 (recognizing “conflict between interests of the highest order”); ante, at 1764 (“important interests to be considered on both sides of the constitutional calculus”); ante, at 1765 (“balanc[ing]” the interest in privacy “against the interest in publishing matters of public importance”); ibid. (privacy interest outweighed in these cases).

The statutory restrictions before us directly enhance private speech. See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (describing “ ‘freedom not to speak publicly’ ” (quoting Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 348, 296 N.Y.S.2d 771, 244 N.E.2d 250, 255 (1968))). The statutes ensure the privacy of telephone conversations much as a trespass statute ensures privacy within the home. That assurance of privacy helps to overcome our natural reluctance to discuss private matters when we fear that our private conversations may become public. And the statutory restrictions consequently encourage conversations that otherwise might not take place.

At the same time, these statutes restrict public speech directly, deliberately, and of necessity. They include media publication within their scope not simply as a means, say, to deter interception, but also as an end. Media dissemination of an intimate conversation to an entire community will often cause the speakers serious harm over and above the harm caused by an initial disclosure to the person who intercepted the phone call. See Gelbard v. United States, 408 U.S. 41, 51–52, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). And the threat of that widespread dissemination can create a far more powerful disincentive to speak privately than the comparatively minor threat of disclosure to an interceptor and perhaps to a handful of others. Insofar as these statutes protect private communications against that widespread dissemination, they resemble laws that would award damages caused through publication of information obtained by theft from a private bedroom. See generally Warren & Brandeis, The Right to Privacy, 4 Harv. L.Rev. 193 (1890) (hereinafter Warren & Brandeis). See also Restatement (Second) of Torts § 652D (1977).

As a general matter, despite the statutes' direct restrictions on speech, the Federal Constitution must tolerate laws of this kind because of the importance of these privacy and speech-related objectives. See Warren & Brandeis 196 (arguing for state-law protection of the right to privacy). Cf. Katz v. United States, 389 U.S. 347, 350–351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (“[T]he protection of a person's general right to privacy—his right to be let alone by other people—is, like the protection of his property and of his very life, left largely to the law of the individual States”); ante, at 1756 (protecting privacy and promoting speech are “interests of the highest order”). Rather than broadly forbid this kind of legislative enactment, the Constitution demands legislative efforts to tailor the laws in order reasonably to reconcile media freedom with personal, speech-related privacy.

Nonetheless, looked at more specifically, the statutes, as applied in these circumstances, do not reasonably reconcile the competing constitutional objectives. Rather, they disproportionately interfere with media freedom. For one thing, the broadcasters here engaged in no unlawful activity other than the ultimate publication of the information another had previously obtained. They “neither encouraged nor participated directly or indirectly in the interception.” App. to Pet. for Cert. in No. 99–1687, p. 33a. See also ante, at 1760. No one claims that they ordered, counseled, encouraged, or otherwise aided or abetted the interception, the later delivery of the tape by the interceptor to an intermediary, or the tape's still later delivery by the intermediary to the media. Cf. 18 U.S.C. § 2 (criminalizing aiding and abetting any federal offense); 2 W. LaFave & A. Scott, Substantive Criminal Law §§ 6.6(b)-(c), pp. 128–129 (1986) (describing criminal liability for aiding and abetting). And, as the Court points out, the statutes do not forbid the receipt of the tape itself. Ante, at 1760. The Court adds that its holding “does not apply to punishing parties for obtaining the relevant information unlawfully.” Ante, at 1764, n. 19 (emphasis added).

For another thing, the speakers had little or no legitimate interest in maintaining the privacy of the particular conversation. That conversation involved a suggestion about “blow[ing] off ... front porches” and “do[ing] some work on some of those guys,” App. 46, thereby raising a significant concern for the safety of others. Where publication of private information constitutes a wrongful act, the law recognizes a privilege allowing the reporting of threats to public safety. See Restatement (Second) of Torts § 595, Comment g (1977) (general privilege to report that “another intends to kill or rob or commit some other serious crime against a third person”); id., § 652G (privilege applies to invasion of privacy tort). Cf. Restatement (Third) of Unfair Competition § 40, Comment c (1995) (trade secret law permits disclosures relevant to public health or safety, commission of crime or tort, or other matters of substantial public concern); Lachman v. Sperry–Sun Well Surveying Co., 457 F.2d 850, 853 (C.A.10 1972) (nondisclosure agreement not binding in respect to criminal activity); Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 436, 131 Cal.Rptr. 14, 551 P.2d 334, 343–344 (1976)(psychiatric privilege not binding in presence of danger to self or others). Even where the danger may have passed by the time of publication, that fact cannot legitimize the speaker's earlier privacy expectation. Nor should editors, who must make a publication decision quickly, have to determine present or continued danger before publishing this kind of threat.

Further, the speakers themselves, the president of a teacher's union and the union's chief negotiator, were “limited public figures,” for they voluntarily engaged in a public controversy. They thereby subjected themselves to somewhat greater public scrutiny and had a lesser interest in privacy than an individual engaged in purely private affairs. See, e.g., ante, at 1765 (respondents were engaged in matter of public concern); Wolston v. Reader's Digest Assn., Inc., 443 U.S. 157, 164, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Hutchinson v. Proxmire, 443 U.S. 111, 134, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979); Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). See also Warren & Brandeis 215.

This is not to say that the Constitution requires anyone, including public figures, to give up entirely the right to private communication, i.e., communication free from telephone taps or interceptions. But the subject matter of the conversation at issue here is far removed from that in situations where the media publicizes truly private matters. See Michaels v. Internet Entertainment Group, Inc., 5 F.Supp.2d 823, 841–842 (C.D.Cal.1998) (broadcast of videotape recording of sexual relations between famous actress and rock star not a matter of legitimate public concern); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on Law of Torts § 117, p. 857 (5th ed.1984) (stating that there is little expectation of privacy in mundane facts about a person's life, but that “portrayal of ... intimate private characteristics or conduct” is “quite a different matter”); Warren & Brandeis 214 (recognizing that in certain matters “the community has no legitimate concern”). Cf. Time, Inc. v. Firestone, 424 U.S. 448, 454–455, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) (despite interest of public, divorce of wealthy person not a “public controversy”). Cf. also ante, at 1764 (“[S]ome intrusions on privacy are more offensive than others”).

Thus, in finding a constitutional privilege to publish unlawfully intercepted conversations of the kind here at issue, the Court does not create a “public interest” exception that swallows up the statutes' privacy-protecting general rule. Rather, it finds constitutional protection for publication of intercepted information of a special kind. Here, the speakers' legitimate privacy expectations are unusually low, and the public interest in defeating those expectations is unusually high. Given these circumstances, along with the lawful nature of respondents' behavior, the statutes' enforcement would disproportionately harm media freedom.

I emphasize the particular circumstances before us because, in my view, the Constitution permits legislatures to respond flexibly to the challenges future technology may pose to the individual's interest in basic personal privacy. Clandestine and pervasive invasions of privacy, unlike the simple theft of documents from a bedroom, are genuine possibilities as a result of continuously advancing technologies. Eavesdropping on ordinary cellular phone conversations in the street (which many callers seem to tolerate) is a very different matter from eavesdropping on encrypted cellular phone conversations or those carried on in the bedroom. But the technologies that allow the former may come to permit the latter. And statutes that may seem less important in the former context may turn out to have greater importance in the latter. Legislatures also may decide to revisit statutes such as those before us, creating better tailored provisions designed to encourage, for example, more effective privacy-protecting technologies. For these reasons, we should avoid adopting overly broad or rigid constitutional rules, which would unnecessarily restrict legislative flexibility. I consequently agree with the Court's holding that the statutes as applied here violate the Constitution, but I would not extend that holding beyond these present circumstances.

Chief Justice REHNQUIST, with whom Justice SCALIA and Justice THOMAS join, dissenting.

Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations. In an attempt to prevent some of the most egregious violations of privacy, the United States, the District of Columbia, and 40 States have enacted laws prohibiting the intentional interception and knowing disclosure of electronic communications.[DFN1] The Court holds that all of these statutes violate the First Amendment insofar as the illegally intercepted conversation touches upon a matter of “public concern,” an amorphous concept that the Court does not even attempt to define. But the Court's decision diminishes, rather than enhances, the purposes of the First Amendment, thereby chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day.

Over 30 years ago, with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Congress recognized that the

“tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communication is seriously jeopardized by these techniques of surveillance.... No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word relating to each man's personal, marital, religious, political, or commercial concerns can be intercepted by an unseen auditor and turned against the speaker to the auditor's advantage.”

S.Rep. No. 1097, 90th Cong., 2d Sess., 67 (1968) (hereinafter S.Rep. No. 1097), U.S.Code Cong. & Admin.News 1968, pp. 2112, 2154.

This concern for privacy was inseparably bound up with the desire that personal conversations be frank and uninhibited, not cramped by fears of clandestine surveillance and purposeful disclosure:

“In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.”

President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967).

To effectuate these important privacy and speech interests, Congress and the vast majority of States have proscribed the intentional interception and knowing disclosure of the contents of electronic communications.[DFN2] See, e.g., 18 U.S.C. § 2511(1)(c) (placing restrictions upon “any person who ... intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication”).

The Court correctly observes that these are “content-neutral law[s] of general applicability” which serve recognized interests of the “highest order”: “the interest in individual privacy and ... in fostering private speech.” Ante, at 1760, 1756. It nonetheless subjects these laws to the strict scrutiny normally reserved for governmental attempts to censor different viewpoints or ideas. See ante, at 1763 (holding that petitioners have not established the requisite “ ‘need ... of the highest order’ ”) (quoting Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979)). There is scant support, either in precedent or in reason, for the Court's tacit application of strict scrutiny.

A content-neutral regulation will be sustained if

“ ‘it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’ ”

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (quoting United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)). Here, Congress and the Pennsylvania Legislature have acted “ ‘without reference to the content of the regulated speech.’ ” Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). There is no intimation that these laws seek “to suppress unpopular ideas or information or manipulate the public debate” or that they “distinguish favored speech from disfavored speech on the basis of the ideas or views expressed.” Turner Broadcasting, supra, at 641, 643, 114 S.Ct. 2445. The antidisclosure provision is based solely upon the manner in which the conversation was acquired, not the subject matter of the conversation or the viewpoints of the speakers. The same information, if obtained lawfully, could be published with impunity. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (upholding under intermediate scrutiny a protective order on information acquired during discovery in part because “the party may disseminate the identical information ... as long as the information is gained through means independent of the court's processes”). As the concerns motivating strict scrutiny are absent, these content-neutral restrictions upon speech need pass only intermediate scrutiny.

The Court's attempt to avoid these precedents by reliance upon the Daily Mail string of newspaper cases is unpersuasive. In these cases, we held that statutes prohibiting the media from publishing certain truthful information—the name of a rape victim, Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the confidential proceedings before a state judicial review commission, Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), and the name of a juvenile defendant, Daily Mail, supra; Oklahoma Publishing Co. v. District Court, Oklahoma Cty., 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (per curiam)—violated the First Amendment. In so doing, we stated that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” Daily Mail, supra, at 103, 99 S.Ct. 2667. Neither this Daily Mail principle nor any other aspect of these cases, however, justifies the Court's imposition of strict scrutiny here.

Each of the laws at issue in the Daily Mail cases regulated the content or subject matter of speech. This fact alone was enough to trigger strict scrutiny, see United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (“[A] content-based speech restriction ... can stand only if it satisfies strict scrutiny”), and suffices to distinguish these antidisclosure provisions. But, as our synthesis of these cases in Florida Star made clear, three other unique factors also informed the scope of the Daily Mail principle.

First, the information published by the newspapers had been lawfully obtained from the government itself.[DFN3] “Where information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts.” Florida Star, supra, at 534, 109 S.Ct. 2603. See, e.g., Landmark Communications, supra, at 841, and n. 12, 98 S.Ct. 1535 (noting that the State could have taken steps to protect the confidentiality of its proceedings, such as holding in contempt commission members who breached their duty of confidentiality). Indeed, the State's ability to control the information undermined the claim that the restriction was necessary, for “[b]y placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served.” Cox Broadcasting, supra, at 495, 95 S.Ct. 1029. This factor has no relevance in the present cases, where we deal with private conversations that have been intentionally kept out of the public domain.

Second, the information in each case was already “publicly available,” and punishing further dissemination would not have advanced the purported government interests of confidentiality. Florida Star, supra, at 535, 109 S.Ct. 2603. Such is not the case here. These statutes only prohibit “disclos[ure],” 18 U.S.C. § 2511(1)(c); 18 Pa. Cons.Stat. § 5703(2) (2000), and one cannot “disclose” what is already in the public domain. See Black's Law Dictionary 477 (7th ed.1999) (defining “disclosure” as “[t]he act or process of making known something that was previously unknown; a revelation of facts”); *547 S.Rep. No. 1097, at 93, U.S.Code Cong. & Admin.News 1968, pp. 2112, 2181 (“The disclosure of the contents of an intercepted communication that had already become ‘public information’ or ‘common knowledge’ would not be prohibited”). These laws thus do not fall under the axiom that “the interests in privacy fade when the information involved already appears on the public record.” Cox Broadcasting, supra, at 494–495, 95 S.Ct. 1029.

Third, these cases were concerned with “the ‘timidity and self-censorship’ which may result from allowing the media to be punished for publishing certain truthful information.” Florida Star, 491 U.S., at 535, 109 S.Ct. 2603. But fear of “timidity and self-censorship” is a basis for upholding, not striking down, these antidisclosure provisions: They allow private conversations to transpire without inhibition. And unlike the statute at issue in Florida Star, which had no scienter requirement, see id., at 539, 109 S.Ct. 2603, these statutes only address those who knowingly disclose an illegally intercepted conversation.[DFN4] They do not impose a duty to inquire into the source of the information and one could negligently disclose the contents of an illegally intercepted communication without liability.

In sum, it is obvious that the Daily Mail cases upon which the Court relies do not address the question presented here. Our decisions themselves made this clear: “The Daily Mail principle does not settle the issue whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well.” Florida Star, supra, at 535, n. 8, 109 S.Ct. 2603; see also Daily Mail, 443 U.S., at 105, 99 S.Ct. 2667 (“Our holding in this case is narrow. There is no issue before us of unlawful press [conduct]”); Landmark Communications, 435 U.S., at 837, 98 S.Ct. 1535 (“We are not here concerned with the possible applicability of the statute to one who secures the information by illegal means and thereafter divulges it”).[DFN5]

Undaunted, the Court places an inordinate amount of weight upon the fact that the receipt of an illegally intercepted communication has not been criminalized. See ante, at 1761–1764. But this hardly renders those who knowingly receive and disclose such communications “law-abiding,” ante, at 1762, and it certainly does not bring them under the Daily Mail principle. The transmission of the intercepted communication from the eavesdropper to the third party is itself illegal; and where, as here, the third party then knowingly discloses that communication, another illegal act has been committed. The third party in this situation cannot be likened to the reporters in the Daily Mail cases, who lawfully obtained their information through consensual interviews or public documents.

These laws are content neutral; they only regulate information that was illegally obtained; they do not restrict republication of what is already in the public domain; they impose no special burdens upon the media; they have a scienter requirement to provide fair warning; and they promote the privacy and free speech of those using cellular telephones. It is hard to imagine a more narrowly tailored prohibition of the disclosure of illegally intercepted communications, and it distorts our precedents to review these statutes under the often fatal standard of strict scrutiny. These laws therefore should be upheld if they further a substantial governmental interest unrelated to the suppression of free speech, and they do.

Congress and the overwhelming majority of States reasonably have concluded that sanctioning the knowing disclosure of illegally intercepted communications will deter the initial interception itself, a crime which is extremely difficult to detect. It is estimated that over 20 million scanners capable of intercepting cellular transmissions currently are in operation, see Thompson, Cell Phone Snooping: Why Electronic Eavesdropping Goes Unpunished, 35 Am.Crim. L.Rev. 137, 149 (1997), notwithstanding the fact that Congress prohibited the marketing of such devices eight years ago, see 47 U.S.C. § 302a(d).[DFN6] As Congress recognized, “[a]ll too often the invasion of privacy itself will go unknown. Only by striking at all aspects of the problem can privacy be adequately protected.” S.Rep. No. 1097, at 69, U.S.Code Cong. & Admin.News 1968, pp. 2112, 2156. See also Hearings on H.R. 3378 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 99th Cong., 1st Sess. and 2d Sess., 290 (1986) (“Congress should be under no illusion ... that the Department [of Justice], because of the difficulty of such investigations, would be able to bring a substantial number of successful prosecutions”).

Nonetheless, the Court faults Congress for providing “no empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions,” ante, at 1763, and insists that “there is no basis for assuming that imposing sanctions upon respondents will deter the unidentified scanner from continuing to engage in surreptitious interceptions,” ante, at 1763. It is the Court's reasoning, not the judgment of Congress and numerous States regarding the necessity of these laws, which disappoints.

The “quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 391, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000). “[C]ourts must accord substantial deference to the predictive judgments of Congress.” Turner Broadcasting, 512 U.S., at 665, 114 S.Ct. 2445 (citing Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973)). This deference recognizes that, as an institution, Congress is far better equipped than the judiciary to evaluate the vast amounts of data bearing upon complex issues and that “[s]ound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable.” Turner Broadcasting, 512 U.S., at 665, 114 S.Ct. 2445. Although we must nonetheless independently evaluate such congressional findings in performing our constitutional review, this “is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own.” Id., at 666, 114 S.Ct. 2445.

The “dry-up-the-market” theory, which posits that it is possible to deter an illegal act that is difficult to police by preventing the wrongdoer from enjoying the fruits of the crime, is neither novel nor implausible. It is a time-tested theory that undergirds numerous laws, such as the prohibition of the knowing possession of stolen goods. See 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.10(a), p. 422 (1986) (“Without such receivers, theft ceases to be profitable. It is obvious that the receiver must be a principal target of any society anxious to stamp out theft in its various forms”). We ourselves adopted the exclusionary rule based upon similar reasoning, believing that it would “deter unreasonable searches,” Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), by removing an officer's “incentive to disregard [the Fourth Amendment],” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).[DFN7]

The same logic applies here and demonstrates that the incidental restriction on alleged First Amendment freedoms is no greater than essential to further the interest of protecting the privacy of individual communications. Were there no prohibition on disclosure, an unlawful eavesdropper who wanted to disclose the conversation could anonymously launder the interception through a third party and thereby avoid detection. Indeed, demand for illegally obtained private information would only increase if it could be disclosed without repercussion. The law against interceptions, which the Court agrees is valid, would be utterly ineffectual without these antidisclosure provisions.

For a similar reason, we upheld against First Amendment challenge a law prohibiting the distribution of child pornography. See New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Just as with unlawfully intercepted electronic communications, we there noted the difficulty of policing the “low-profile, clandestine industry” of child pornography production and concurred with 36 legislatures that “[t]he most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.” Id., at 760, 102 S.Ct. 3348. In so doing, we did not demand, nor did Congress provide, any empirical evidence to buttress this basic syllogism. Indeed, we reaffirmed the theory's vitality in Osborne v. Ohio, 495 U.S. 103, 109–110, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), finding it “surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.”[DFN8]

At base, the Court's decision to hold these statutes unconstitutional rests upon nothing more than the bald substitution of its own prognostications in place of the reasoned judgment of 41 legislative bodies and the United States Congress.[DFN9] The Court does not explain how or from where Congress should obtain statistical evidence about the effectiveness of these laws, and “[s]ince as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled.” Elkins, supra, at 218, 80 S.Ct. 1437. Reliance upon the “dry-up-the-market” theory is both logical and eminently reasonable, and our precedents make plain that it is “far stronger than mere speculation.” United States v. Treasury Employees, 513 U.S. 454, 475, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995).

These statutes also protect the important interests of deterring clandestine invasions of privacy and preventing the involuntary broadcast of private communications. Over a century ago, Samuel Warren and Louis Brandeis recognized that “[t]he intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual.” The Right to Privacy, 4 Harv. L.Rev. 193, 196 (1890). “There is necessarily, and within suitably defined areas, a ... freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (internal quotation marks and citation omitted). One who speaks into a phone “is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.” Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); cf. Gelbard v. United States, 408 U.S. 41, 52, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972) (compelling testimony about matters obtained from an illegal interception at a grand jury proceeding “compounds the statutorily proscribed invasion of ... privacy by adding to the injury of the interception the insult of ... disclosure”).

These statutes undeniably protect this venerable right of privacy. Concomitantly, they further the First Amendment rights of the parties to the conversation. “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broadcasting, 512 U.S., at 641, 114 S.Ct. 2445. By “protecting the privacy of individual thought and expression,” United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 302, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), these statutes further the “uninhibited, robust, and wide-open” speech of the private parties, New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Unlike the laws at issue in the Daily Mail cases, which served only to protect the identities and actions of a select group of individuals, these laws protect millions of people who communicate electronically on a daily basis. The chilling effect of the Court's decision upon these private conversations will surely be great: An estimated 49.1 million analog cellular telephones are currently in operation. See Hao, Nokia Profits from Surge in Cell Phones, Fla. Today, July 18, 1999, p. E1.

Although the Court recognizes and even extols the virtues of this right to privacy, see ante, at 1764, these are “mere words,” W. Shakespeare, Troilus and Cressida, act v, sc. 3, overridden by the Court's newfound right to publish unlawfully acquired information of “public concern,” ante, at 1760. The Court concludes that the private conversation between Gloria Bartnicki and Anthony Kane is somehow a “debate .... worthy of constitutional protection.” Ante, at 1765. Perhaps the Court is correct that “[i]f the statements about the labor negotiations had been made in a public arena—during a bargaining session, for example—they would have been newsworthy.” Ante, at 1760. The point, however, is that Bartnicki and Kane had no intention of contributing to a public “debate” at all, and it is perverse to hold that another's unlawful interception and knowing disclosure of their conversation is speech “worthy of constitutional protection.” Cf. Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (“[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say’ ”). The Constitution should not protect the involuntary broadcast of personal conversations. Even where the communications involve public figures or concern public matters, the conversations are nonetheless private and worthy of protection. Although public persons may have forgone the right to live their lives screened from public scrutiny in some areas, it does not and should not follow that they also have abandoned their right to have a private conversation without fear of it being intentionally intercepted and knowingly disclosed.

The Court's decision to hold inviolable our right to broadcast conversations of “public importance” enjoys little support in our precedents. As discussed above, given the qualified nature of their holdings, the Daily Mail cases cannot bear the weight the Court places upon them. More mystifying still is the Court's reliance upon the “Pentagon Papers” case, New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam), which involved the United States' attempt to prevent the publication of Defense Department documents relating to the Vietnam War. In addition to involving Government controlled information, that case fell squarely under our precedents holding that prior restraints on speech bear “ ‘a heavy presumption against ... constitutionality.’ ” Id., at 714, 91 S.Ct. 2140. Indeed, it was this presumption that caused Justices Stewart and White to join the 6–to–3 per curiam decision. See id., at 730–731, 91 S.Ct. 2140 (White, J., joined by Stewart, J., concurring) (“I concur in today's judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system”). By no stretch of the imagination can the statutes at issue here be dubbed “prior restraints.” And the Court's “parallel reasoning” from other inapposite cases fails to persuade. Ante, at 1765.

Surely “the interest in individual privacy,” ante, at 1756, at its narrowest, must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations. The Court subordinates that right, not to the claims of those who themselves wish to speak, but to the claims of those who wish to publish the intercepted conversations of others. Congress' effort to balance the above claim to privacy against a marginal claim to speak freely is thereby set at naught.

Footnotes

[FN1] See 48 Stat. 1069, 1103.

[FN2] Either actual damages or “statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000” may be recovered under 18 U.S.C. § 2520(c)(2); under the Pennsylvania Act, the amount is the greater of $100 a day or $1,000, but the plaintiff may also recover punitive damages and reasonable attorney's fees. 18 Pa. Cons.Stat. § 5725(a) (2000).

[FN3] Title 18 U.S.C. § 2511(1)(c) provides that any person who “intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; ... shall be punished....” The Pennsylvania Act contains a similar provision.

[FN4] Title 18 U.S.C. § 2511(1)(a) provides: “(1) Except as otherwise specifically provided in this chapter [§§ 2510–2520 (1994 ed. and Supp. V) ] any person who—

“(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; ... shall be punished....”

[FN5] In the Boehner case, as in this suit, a conversation over a car cell phone was intercepted, but in that case the defendant knew both who was responsible for intercepting the conversation and how they had done it. 191 F.3d, at 465. In the opinion of the majority, the defendant acted unlawfully in accepting the tape in order to provide it to the media. Id., at 476. Apparently because the couple responsible for the interception did not eavesdrop “for purposes of direct or indirect commercial advantage or private financial gain,” they were fined only $500. See Department of Justice Press Release, Apr. 23, 1997. In another similar case involving a claim for damages under § 2511(1)(c), Peavy v. WFAA–TV, Inc., 221 F.3d 158 (C.A.5 2000), the media defendant in fact participated in the interceptions at issue.

[FN6] In particular, calls placed on cellular and cordless telephones can be intercepted more easily than those placed on traditional phones. See Shubert v. Metrophone, Inc., 898 F.2d 401, 404–405 (C.A.3 1990). Although calls placed on cell and cordless phones can be easily intercepted, it is not clear how often intentional interceptions take place. From 1992 through 1997, less than 100 cases were prosecuted charging violations of 18 U.S.C. § 2511. See Statement of James K. Kallstrom, Assistant Director in Charge of the New York Division of the FBI on February 5, 1997 before the Subcommittee on Telecommunications, Trade, and Consumer Protection, Committee on Commerce, U.S. House of Representatives Regarding Cellular Privacy. However, information concerning techniques and devices for intercepting cell and cordless phone calls can be found in a number of publications, trade magazines, and sites on the Internet, see id., at 6, and at one set of congressional hearings in 1997, a scanner, purchased off the shelf and minimally modified, was used to intercept phone calls of Members of Congress.

[FN7] See, e.g., Nix v. O'Malley, 160 F.3d 343, 346 (C.A.6 1998); McKamey v. Roach, 55 F.3d 1236, 1240 (C.A.6 1995).

[FN8] In answering this question, we draw no distinction between the media respondents and Yocum. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 265–266, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).

[FN9] “But while a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary to such a showing in all cases.... Nor will the mere assertion of a content-neutral purpose be enough to save a law which, on its face, discriminates based on content.” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642–643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).

[FN10] The Solicitor General has cataloged some of the cases that fall under subsection (d): “[I]t is unlawful for a company to use an illegally intercepted communication about a business rival in order to create a competing product; it is unlawful for an investor to use illegally intercepted communications in trading in securities; it is unlawful for a union to use an illegally intercepted communication about management (or vice versa) to prepare strategy for contract negotiations; it is unlawful for a supervisor to use information in an illegally recorded conversation to discipline a subordinate; and it is unlawful for a blackmailer to use an illegally intercepted communication for purposes of extortion. See, e.g., 1968 Senate Report 67 (corporate and labor-management uses); Fultz v. Gilliam, 942 F.2d 396, 400 n. 4 (6th Cir.1991) (extortion); Dorris v. Absher, 959 F.Supp. 813, 815–817 (M.D.Tenn.1997) (workplace discipline), aff'd. in part, rev'd in part, 179 F.3d 420 (6th Cir.1999). The statute has also been held to bar the use of illegally intercepted communications for important and socially valuable purposes. See In re Grand Jury, 111 F.3d 1066, 1077–1079 (3d Cir.1997).” Brief for United States 24.

[FN11] Put another way, what gave rise to statutory liability in this suit was the information communicated on the tapes. See Boehner v. McDermott, 191 F.3d 463, 484 (C.A.D.C.1999) (Sentelle, J., dissenting) (“What ... is being punished ... here is not conduct dependent upon the nature or origin of the tapes; it is speech dependent upon the nature of the contents”).

[FN12] That question was subsequently reserved in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 837, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978).

[FN13] In cases relying on such a rationale, moreover, the speech at issue is considered of minimal value. Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); New York v. Ferber, 458 U.S., at 762, 102 S.Ct. 3348 (“The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis ”).

The Government also points to two other areas of the law—namely, mail theft and stolen property—in which a ban on the receipt or possession of an item is used to deter some primary illegality. Brief for United States 14; see also post, at 1773–1774 (REHNQUIST, C.J., dissenting). Neither of those examples, though, involve prohibitions on speech. As such, they are not relevant to a First Amendment analysis.

[FN14] The media respondents have included a list of 143 cases under § 2511(1)(a) and 63 cases under §§ 2511(1)(c) and (d)—which must also involve violations of subsection (a)—in an appendix to their brief. The Reply Brief filed by the United States contains an appendix describing each of the cases in the latter group.

[FN15] In only 5 of the 206 cases listed in the appendixes, see n. 14, supra, n. 17, infra, was the identity of the interceptor wholly unknown.

[FN16] The legislative history of the 1968 Act indicates that Congress' concern focused on private surveillance “in domestic relations and industrial espionage situations.” S.Rep. No. 1097, 90th Cong., 2d Sess., 225 (1968), U.S.Code Cong. & Admin.News 1968, pp. 2112, 2274. Similarly, in connection with the enactment of the 1986 amendment, one Senator referred to the interest in protecting private communications from “a corporate spy, a police officer without probable cause, or just a plain snoop.” 131 Cong. Rec. 24366 (1985) (statement of Sen. Leahy).

[FN17] The dissent argues that we have not given proper respect to “congressional findings” or to “ ‘Congress' factual predictions.’ ” Post, at 1773. But the relevant factual foundation is not to be found in the legislative record. Moreover, the dissent does not argue that Congress did provide empirical evidence in support of its assumptions, nor, for that matter, does it take real issue with the fact that in the vast majority of cases involving illegal interceptions, the identity of the person or persons responsible for the interceptions is known. Instead, the dissent advances a minor disagreement with our numbers, stating that nine cases “involved an unknown or unproved eavesdropper.” Post, at 1774, n. 9 (emphasis added). The dissent includes in that number cases in which the identity of the interceptor, though suspected, was not “proved” because the identity of the interceptor was not at issue or the evidence was insufficient. In any event, whether there are 5 cases or 9 involving anonymous interceptors out of the 206 cases under § 2511, in most of the cases involving illegal interceptions, the identity of the interceptor is no mystery. If, as the proponents of the dry-up-the-market theory would have it, it is difficult to identify the persons responsible for illegal interceptions (and thus necessary to prohibit disclosure by third parties with no connection to, or responsibility for, the initial illegality), one would expect to see far more cases in which the identity of the interceptor was unknown (and, concomitantly, far fewer in which the interceptor remained anonymous). Thus, not only is there a dearth of evidence in the legislative record to support the dry-up-the-market theory, but what postenactment evidence is available cuts against it.

[FN18] Indeed, even the burden of justifying restrictions on commercial speech requires more than “ ‘mere speculation or conjecture.’ ” Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U.S. 173, 188, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999).

[FN19] Our holding, of course, does not apply to punishing parties for obtaining the relevant information unlawfully. “It would be frivolous to assert—and no one does in these cases—that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.” Branzburg v. Hayes, 408 U.S. 665, 691, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

[FN20] “ ‘The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.’ ” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S., at 559, 105 S.Ct. 2218 (quoting Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 348, 296 N.Y.S.2d 771, 244 N.E.2d 250, 255 (1968)).

[FN21] Moreover, “our decisions establish that absent exceptional circumstances, reputational interests alone cannot justify the proscription of truthful speech.” Butterworth v. Smith, 494 U.S. 624, 634, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990).

[FN22] See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 535, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (acknowledging “the ‘timidity and self-censorship’ which may result from allowing the media to be punished for publishing truthful information”).

[DFN1] See 18 U.S.C. § 2511(1) (1994 ed. and Supp. V); Ala.Code § 13A–11–30 et seq. (1994); Alaska Stat. Ann. § 42.20.300(d) (2000); Ark.Code Ann. § 5–60–120 (1997); Cal.Penal Code Ann. § 631 (West 1999); Colo.Rev.Stat. § 18–9–303 (2000); Del.Code Ann., Tit. 11, § 1336(b)(1) (1995); D.C.Code Ann. § 23–542 (1996); Fla. Stat. § 934.03(1) (Supp.2001); Ga.Code Ann. § 16–11–66.1 (1996); Haw.Rev.Stat. § 803–42 (1993); Idaho Code § 18–6702 (1997); Ill. Comp. Stat., ch. 720, § 5/14–2(b) (1999 Supp.); Iowa Code § 808B.2 (1994); Kan. Stat. Ann. § 21–4002 (1995); Ky.Rev.Stat. Ann. § 526.060 (Michie 1999); La.Rev.Stat. Ann. § 15:1303 (West 1992); Me.Rev.Stat. Ann., Tit. 15, § 710(3) (Supp.2000); Md. Cts. & Jud. Proc.Code Ann. § 10–402 (Supp.2000); Mass. Gen. Laws § 272:99(C)(3) (1997); Mich. Comp. Laws Ann. § 750.539e (West 1991); Minn.Stat. § 626A.02 (2000); Mo.Rev.Stat. § 542.402 (2000); Neb.Rev.Stat. § 86–702 (1999); Nev.Rev.Stat. § 200.630 (1995); N.H.Rev.Stat. Ann. § 570–A:2 (Supp.2000); N.J. Stat. Ann. § 2A:156A–3 (West Supp.2000); N.M. Stat. Ann. § 30–12–1 (1994); N.C. Gen.Stat. § 15A–287 (1999); N.D. Cent.Code § 12.1–15–02 (1997); Ohio Rev.Code Ann. § 2933.52(A)(3) (1997); Okla. Stat., Tit. 13, § 176.3 (2000 Supp.); Ore.Rev.Stat. § 165.540 (1997); 18 Pa. Cons.Stat. § 5703 (2000); R.I. Gen. Laws § 11–35–21 (2000); Tenn.Code Ann. § 39–13–601 (1997); Tex. Penal Code Ann. § 16.02 (Supp.2001); Utah Code Ann. § 77–23a–4 (1982); Va.Code Ann. § 19.2–62 (1995); W. Va.Code § 62–1D–3 (2000); Wis. Stat. § 968.31(1) (1994); Wyo. Stat. Ann. § 7–3–602 (1995).

[DFN2] “Electronic communication” is defined as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system.” 18 U.S.C. § 2510(12) (1994 ed., Supp. V).

[DFN3] The one exception was Daily Mail, where reporters obtained the juvenile defendant's name from witnesses to the crime. See 443 U.S., at 99, 99 S.Ct. 2667. However, the statute at issue there imposed a blanket prohibition on the publication of the information. See id., at 98–99, 99 S.Ct. 2667. In contrast, these antidisclosure provisions do not prohibit publication so long as the information comes from a legal source.

[DFN4] In 1986, to ensure that only the most culpable could face liability for disclosure, Congress increased the scienter requirement from “willful” to “intentional.” 18 U.S.C. § 2511(1)(c); see also S.Rep. No. 99–541, p. 6 (1986) (“In order to underscore that the inadvertent reception of a protected communication is not a crime, the subcommittee changed the state of mind requirement under [Title III] from ‘willful’ to ‘intentional’ ”).

[DFN5] Tellingly, we noted in Florida Star that “[t]o the extent sensitive information rests in private hands, the government may under some circumstances forbid its nonconsensual acquisition, thereby bringing outside of the Daily Mail principle the publication of any information so acquired.” 491 U.S., at 534, 109 S.Ct. 2603; see also id., at 535, 109 S.Ct. 2603 (“[I]t is highly anomalous to sanction persons other than the source of [the] release”).

[DFN6] The problem is pervasive because legal “radio scanners [may be] modified to intercept cellular calls.” S.Rep. No. 99–541, at 9. For example, the scanner at issue in Boehner v. McDermott, 191 F.3d 463 (C.A.D.C.1999), had been recently purchased at Radio Shack. See Thompson, 35 Am.Crim. L.Rev., at 152, and n. 138 (citing Stratton, Scanner Wasn't Supposed to Pick up Call, But it Did, Orlando Sentinel, Jan. 18, 1997, p. A15).

[DFN7] In crafting the exclusionary rule, we did not first require empirical evidence. See Elkins, 364 U.S., at 218, 80 S.Ct. 1437 (“Empirical statistics are not available to show that the inhabitants of states which follow the exclusionary rule suffer less from lawless searches and seizures than do those of states which admit evidence unlawfully obtained”). When it comes to this Court's awesome power to strike down an Act of Congress as unconstitutional, it should not be “do as we say, not as we do.”

[DFN8] The Court attempts to distinguish Ferber and Osborne on the ground that they involved low-value speech, but this has nothing to do with the reasonableness of the “dry-up-the-market” theory. The Court also posits that Congress here could simply have increased the penalty for intercepting cellular communications. See ante, at 1762. But the Court's back-seat legislative advice does nothing to undermine the reasonableness of Congress' belief that prohibiting only the initial interception would not effectively protect the privacy interests of cellular telephone users.

[DFN9] The Court observes that in many of the cases litigated under § 2511(1), “the person or persons intercepting the communication ha[ve] been known.” Ante, at 1763. Of the 206 cases cited in the appendices, 143 solely involved § 2511(1)(a) claims of wrongful interception—disclosure was not at issue. It is of course unremarkable that intentional interception cases have not been pursued where the identity of the eavesdropper was unknown. Of the 61 disclosure and use cases with published facts brought under §§ 2511(1)(c) and (d), 9 involved an unknown or unproved eavesdropper, 1 involved a lawful pen register, and 5 involved recordings that were not surreptitious. Thus, as relevant, 46 disclosure cases involved known eavesdroppers. Whatever might be gleaned from this figure, the Court is practicing voodoo statistics when it states that it undermines the “dry-up-the-market” theory. See ante, at 1763, n. 17. These cases say absolutely nothing about the interceptions and disclosures that have been deterred.

492 F.3d 24

United States Court of Appeals,
First Circuit.

Mary T. JEAN, Plaintiff, Appellee,
v.
MASSACHUSETTS STATE POLICE, et al., Defendants, Appellants.

No. 06–1775.

Heard Nov. 6, 2006.
Decided June 22, 2007.

Attorneys and Law Firms  

Ronald F. Kehoe, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellants.

Eric B. Hermanson, with whom Sara E. Solfanelli, Choate, Hall & Stewart LLP, John Reinstein, and American Civil Liberties Union of Massachusetts were on brief, for appellee.

Before BOUDIN, Chief Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

Opinion

LIPEZ, Circuit Judge. This case presents the question of whether the First Amendment prevents Massachusetts law enforcement officials from interfering with an individual's internet posting of an audio and video recording of an arrest and warrantless search of a private residence, when the individual who posted the recording had reason to know at the time she accepted the recording that it was illegally recorded. The appellant state police officers challenge the district court's grant of a preliminary injunction enjoining them from taking any action that interferes with appellee Mary Jean's posting of the recording on a website. We find this case materially indistinguishable from the Supreme Court's decision in Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001), and thus conclude that Jean has a reasonable likelihood of success on the merits of her claim that the First Amendment protects the posting of a recording under such circumstances. Consequently, we uphold the preliminary injunction.

I.

A. Factual Background

The facts are largely undisputed; where disputes exist, they do not affect the outcome of this appeal.

Jean, a local political activist in Worcester, Massachusetts, maintained a website displaying articles and other information critical of former Worcester County District Attorney John Conte.[FN1] In October 2005, Paul Pechonis contacted Jean through her website. They had never met previously. Pechonis explained that, on September 29, eight armed State Police troopers arrested him in his home on a misdemeanor charge. He met the officers at the front door and allowed them to handcuff him. The officers then conducted a warrantless search of his entire house. The arrest was both audiotaped and videotaped by a “nanny-cam,” a motion-activated camera used by parents to monitor children's activities within the home. The parties contest whether the recording was accidental; this fact is immaterial to the outcome of the case.

Pechonis provided Jean a copy of the audio/video recording. We assume, for purposes of this appeal, that when Jean accepted the tape she had reason to know that it had been illegally recorded. On January 29, 2006, Jean posted the recording on her website accompanied by an editorial comment critical of Conte's performance in office.

By letter dated February 14, the State Police advised Jean that her actions violated Mass. Gen. Laws ch. 272, § 99 (“section 99”), and were subject to prosecution as a felony.[FN2] The letter stated that, if Jean did not “cease and desist, within 48 hours of receipt of this letter, from posting this unlawful tape on the internet or any other publicly accessible site,” the police would “refer this matter to the District Attorney's office for further investigation and possible prosecution.” The police sent a second letter on March 29, which clarified the previous letter by stating that, given the statute's limitation to “wire or oral communications,” Jean would not be in violation if she removed the audio portion of the recording from her website.

B. Procedural History

On February 17, 2006, Jean filed a complaint in federal district court in Massachusetts seeking a temporary restraining order and preliminary and permanent injunctive relief against the Massachusetts State Police, State Police Superintendent Thomas G. Robbins, and Attorney General Thomas Reilly in their individual and official capacities (collectively, “the police”).[FN3] Citing her right to free speech under the First Amendment, Jean sought to preclude defendants from threatening her with prosecution or enforcing section 99 against her. The district court granted a temporary restraining order preventing the police from interfering with Jean's “disclosure, use, or display, including posting on the internet,” of the audio/video recording.

After briefing and a hearing, the court granted the request for a preliminary injunction on April 7. Finding the case controlled by Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001), the court noted that Jean played no part in the recording of the video, that she had “obtained the tape lawfully,” and that the videotape related to a “matter of public concern.” The court concluded that Jean had demonstrated a likelihood of success on the merits of her First Amendment claim, that irreparable harm would result from the absence of an injunction, and that the balance of burdens and public interests weighed in favor of Jean. Consequently, it granted the preliminary injunction. This appeal ensued.

II.

A. Standard of Review

Under 28 U.S.C. § 1292(a)(1), we have jurisdiction to hear an interlocutory appeal of an order granting a preliminary injunction. We review the grant or denial of a preliminary injunction for abuse of discretion. Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 46 (1st Cir.2005). Within that framework, “findings of fact are reviewed for clear error and issues of law are reviewed de novo.” Id. Thus, “we will set aside a district court's ruling on a preliminary injunction motion only if the court clearly erred in assessing the facts, misapprehended the applicable legal principles, or otherwise is shown to have abused its discretion.” Id. 

In considering the motion for a preliminary injunction, a district court weighs four factors: (1) the plaintiff's likelihood of success on the merits; (2) the potential for irreparable harm in the absence of an injunction; (3) whether issuing an injunction will burden the defendants less than denying an injunction would burden *27 the plaintiffs; and (4) the effect, if any, on the public interest. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 11 (1st Cir.2004). The police contest only the first factor: Jean's likelihood of success on the merits. That inquiry is the most important part of the preliminary injunction assessment: “[I]f the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.2002). Moreover, to the extent that the police could have argued that the other three factors assist in demonstrating abuse of discretion by the district court, they have now waived those arguments by failing to raise them on appeal.

Thus, the question before us is whether the district court erred in granting a preliminary injunction prohibiting the enforcement of Mass. Gen. Laws ch. 272, § 99 against Jean for her receipt and internet posting of the audio/video recording of Pechonis' arrest. Like the district court, we evaluate whether, in light of the record before us, she has a reasonable likelihood of success on the merits.

B. Bartnicki v. Vopper

We agree with the district court that this case is controlled by the Supreme Court's decision in Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001). Therefore, we must examine that decision closely before applying it to the facts of this case.

1. Background

In Bartnicki, the Supreme Court considered “what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication.” Id. at 517, 121 S.Ct. 1753. The dispute in Bartnicki arose during contentious collective bargaining negotiations between a Pennsylvania school board and a union representing teachers at the local high school. An unidentified person intercepted and recorded a cellular phone call between the union's chief negotiator and the president of the local union, during which the president stated: “If they're not gonna move for three percent, we're gonna have to go to their, their homes.... To blow off their front porches....” Id. at 518–19, 121 S.Ct. 1753 (first omission in original)(internal quotation marks omitted).

Jack Yocum, the head of a local taxpayer's organization, subsequently found a recording of the intercepted conversation in his mailbox. He played the tape for members of the school board and later delivered the tape to Frederick Vopper, a radio commentator, who played the tape on his public affairs talk show. The union officials brought an action for damages under federal and state wiretap statutes against Yocum and Vopper, who invoked their First Amendment right to speak on issues of public importance.

The relevant provision of the federal wiretap statute, 18 U.S.C. § 2511(1)(c), provides that any person who “intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this subsection” may be sued. The Pennsylvania state wiretap statute contains a similar provision. 18 Pa. Cons.Stat. § 5703. Both statutory schemes also provide for recovery of damages for violations. 18 U.S.C. § 2520(c)(2); 18 Pa. Cons.Stat. § 5725(a).

Following discovery, the parties filed cross-motions for summary judgment before the district court. The court denied both motions and granted a motion for an interlocutory appeal to the Third Circuit. That court concluded that the statutes were invalid as applied because they deterred significantly more speech than was necessary to protect the privacy interests at stake, and remanded with instructions to enter summary judgment for defendants. Bartnicki, 532 U.S. at 521–22, 121 S.Ct. 1753 (citing Bartnicki v. Vopper, 200 F.3d 109, 121 (3d Cir.1999)). The Supreme Court then granted certiorari to determine whether the First Amendment shielded defendants from suits for damages for violation of § 2511(1)(c) and its Pennsylvania analog.

Since the grant of certiorari followed a remand with instructions to enter summary judgment for defendants, the majority opinion (authored by Justice Stevens and joined by five other Justices) viewed the facts in the light most favorable to the plaintiffs. Bartnicki, 532 U.S. at 525, 121 S.Ct. 1753. It assumed “that the interception was intentional, and therefore unlawful, and that, at a minimum, [defendants] ‘had reason to know’ that it was unlawful.” Id. at 525, 121 S.Ct. 1753. The plaintiffs were thus entitled to recover damages under the statutes unless application of the statutes in such circumstances would violate the First Amendment. Id. The Court also accepted three other factual propositions “that serve to distinguish most of the cases that have arisen under § 2511.” First, the defendants “played no part in the illegal interception. Rather, they found out about the interception only after it occurred, and in fact never learned the identity of the person or persons who made the interception.” Second, defendants' “access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else.” Third, “the subject matter of the conversation was a matter of public concern.” Id.

2. The Supreme Court's Analysis

The Court first held that § 2511(1)(c) was content neutral, explaining that the statute “does not distinguish based on the content of the intercepted conversations, nor is it justified by reference to the content of those conversations. Rather, the communications at issue are singled out by virtue of the fact that they were illegally intercepted....” Id. at 526, 121 S.Ct. 1753. The Court also explained that the statute, as applied to the facts of the case, “is fairly characterized as a regulation of pure speech.” Id. It noted that the delivery of a tape recording “is like the delivery of a handbill or pamphlet, and as such, it is the kind of ‘speech’ that the First Amendment protects.” Id. at 527, 121 S.Ct. 1753.

Having established these principles, the Court then balanced the state interests served by the statute against the public interest in the disclosure of information. The Court identified two interests served by the statute: (1) “removing an incentive for parties to intercept private conversations”; and (2) “minimizing the harm to persons whose conversations have been illegally intercepted.” Id. at 529, 121 S.Ct. 1753. The Court accorded little weight to the first interest, id. at 532, 121 S.Ct. 1753, noting that “it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party,” id. at 529–30, 121 S.Ct. 1753, and explaining that “there is no empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions,” id. at 530–31, 121 S.Ct. 1753. It found the second interest in the situation before it more immediately relevant, noting that “disclosure of the contents of a private conversation can be an even greater intrusion on privacy than the interception itself.”  Id. at 533, 121 S.Ct. 1753. Given this concern, it found a “valid independent justification” for prohibiting “disclosures by persons who lawfully obtained access to the contents of an illegally intercepted message,” even if such prohibition does not deter the initial interception. Id. In particular, “the fear of public disclosure of private conversations might well have a chilling effect on private speech.” Id.

With respect to the public interest in disclosure, the Court emphasized that “ ‘if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need ... of the highest order.’ ” Id. at 528, 121 S.Ct. 1753 (quoting Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979)(omission in original)). Given the presumption in favor of protecting publication of truthful information, the issue presented in Bartnicki was narrow: “ ‘Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?’ ” Id. (quoting Boehner v. McDermott, 191 F.3d 463, 484–85 (D.C.Cir.1999)(Sentelle, J., dissenting)).

Although the Court thus noted that “there are important interests to be considered on both sides of the constitutional calculus,” id. at 533, 121 S.Ct. 1753, it ultimately concluded that “privacy concerns give way when balanced against the interest in publishing matters of public importance,” id. at 534, 121 S.Ct. 1753. Surveying the many cases in which it had protected speech on matters of public concern, id. at 534–35, 121 S.Ct. 1753, the Court explained that “[o]ne of the costs associated with participation in public affairs is an attendant loss of privacy,” id. at 534, 121 S.Ct. 1753. Consequently, the Court concluded that “a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Id. at 535, 121 S.Ct. 1753. Because the collective bargaining negotiations in Bartnicki were “unquestionably a matter of public concern, and respondents were clearly engaged in debate about that concern,” the First Amendment prohibited recovery of damages against defendants. Id.

C. Application of Bartnicki to Jean's Circumstances

As a preliminary matter, we note that, like the statutes in question in Bartnicki, section 99 is a “content-neutral law of general applicability,” id. at 526, 121 S.Ct. 1753. It “does not distinguish based on the content of the intercepted conversations, nor is it justified by reference to the content of those conversations.” Id. Like the delivery of the recording in Bartnicki, which the Court analogized to “the delivery of a handbill or a pamphlet,” id. at 527, 121 S.Ct. 1753, section 99's prohibition against disclosure also constitutes a regulation of “pure speech.”

As did the Court in Bartnicki, we consider the interests implicated by the disclosure of the information. With respect to the state's interest in protecting the privacy of its citizens, the privacy interests discussed in Bartnicki are less compelling here. Bartnicki emphasized the importance of “encouraging the uninhibited exchange of ideas and information among private parties,” id. at 532, 121 S.Ct. 1753, and of avoiding the “ ‘[f]ear or suspicion that one's speech is being monitored by a stranger,’ ” id. at 533, 121 S.Ct. 1753 (quoting President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967)). This interest in protecting private communication is clearly implicated by the interception of a private cell phone conversation in Bartnicki. However, this interest is virtually irrelevant here, where the intercepted communications involve a search by police officers of a private citizen's home in front of that individual, his wife, other members of the family, and at least eight law enforcement officers.

Moreover, the state's interest in deterring illegal interception by punishing a subsequent publisher of information—already accorded little weight by the Court in Bartnicki—receives even less weight here, where the identity of the interceptor is known. In Bartnicki, the government argued that punishing a subsequent publisher of information “remov[es] an incentive for parties to intercept private conversations” by deterring would-be publishers of illegally intercepted material and thus reducing the demand for such material. Id. at 529–30 & n. 17, 121 S.Ct. 1753. This argument rested, in part, on the assumption that the interceptors themselves could not be punished because their identities usually were unknown. Unimpressed, the Court explained that the available evidence did not support this assumption of anonymity. First, the legislative record did not indicate that a significant number of interceptors were anonymous. Id. at 531 n. 17, 121 S.Ct. 1753. Moreover, fewer than ten of the 206 cases filed under § 2511 (the federal wiretap statute) involved an anonymous interceptor. Id. Thus, the Court concluded that the relatively small number of anonymous interceptors meant that it was not “difficult to identify the persons responsible for illegal interceptions” and, consequently, not “necessary to prohibit disclosure by third parties with no connection to, or responsibility for, the initial illegality,” id.

Given this logic, there is a better argument for prosecuting a subsequent publisher of information when the interceptor is anonymous. In such a situation, the government is unable to punish the interceptor directly; punishing the subsequent publisher might be more justifiable as a deterrent. However, even after taking into account the anonymity of the interceptor in Bartnicki, the Court held that “[a]lthough there are some rare occasions in which a law suppressing one party's speech may be justified by an interest in deterring criminal conduct by another, this is not such a case.” Id. at 530, 121 S.Ct. 1753 (citation omitted). Thus, where, as here, the identity of the interceptor is known, there is even less justification for punishing a subsequent publisher than there was in Bartnicki.

On the public interest side of the equation, the broad interest in permitting “the publication of truthful information of public concern,” described in Bartnicki, id. at 534–35, 121 S.Ct. 1753, applies here as well. The police do not deny that the event depicted on the recording—a warrantless and potentially unlawful search of a private residence—is a matter of public concern. The police also concede that, like the defendants in Bartnicki, Jean played no part in the illegal interception. Thus, the only possible ground for distinguishing this case from Bartnicki is the assertion of the police that Jean, unlike the defendants in Bartnicki, did not obtain the recording lawfully.

The Massachusetts interception statute prohibits “willfully commit[ting] an interception,” Mass. Gen. Laws ch. 272, § 99(C)(1), and “willfully disclos [ing] ... the contents of any wire or oral communication, knowing that the information was obtained through interception,” id. § 99(C)(3). It likewise forbids “permit[ting],” “participat[ing] in a conspiracy to commit,” or acting as an “accessory to a person who commits” a violation of another subsection of the statute. Id. § 99(C)(6). By willfully recording his arrest and then giving the recording to Jean, Pechonis arguably would have violated both section 99(C)(1) and section 99(C)(3). Thus, the police argue, by voluntarily accepting the tape from Pechonis and then disseminating it, Jean assisted, conspired, or served as an accessory to Pechonis' violation of section 99(C)(3) and thereby independently violated section 99(C)(6).

Elaborating on this point, the police contend that “the disseminator's knowledge, when she obtains the tape, of the interceptor's identity and of the unlawfulness of the interception is determinative of whether she has obtained it lawfully or unlawfully for purposes of a Bartnicki analysis.” They emphasize that, in Bartnicki, the tape was placed anonymously in Yocum's mailbox, and Yocum received the tape without knowing its contents until after he played it. 532 U.S. at 519, 121 S.Ct. 1753. Thus, they argue, “[t]he break in the chain between the interceptor and the defendants became the pivotal point in the Court's balancing of interests because the break meant that the defendants had not obtained the tape unlawfully.” In contrast, “Jean knowingly participated in [Pechonis'] disclosure and became the essential but-for first link in the chain.” In short, appellants insist that the “essential distinction between this case and Bartnicki ” was that “[i]n Bartnicki, the interceptor had already disseminated the tape before Yocum passively received it and disseminated it further;.... In the present case, it was Jean's active collaboration with Pechonis that made his unlawful dissemination possible in the first instance.”

We will assume that Jean's conduct, viewed through the prism of section 99(C)(3) and section 99(C)(6), may have been unlawful under the Massachusetts statute. She disclosed to others the contents of an oral communication that she knew had been recorded illegally, and she arguably participated with Pechonis in a conspiracy to disclose the content of the illegally recorded oral communication. However, whether Jean's conduct fell within the statute is not determinative—indeed, we note that the conduct of both Yocum and Vopper in Bartnicki would have fallen within this statute. Rather, the determinative question is whether the First Amendment, as applied by the Supreme Court in Bartnicki, permits Massachusetts to criminalize Jean's conduct. On this question, we find the arguments of the police unpersuasive.

The police note correctly that, in Bartnicki, Yocum did not realize that the tape had been recorded illegally at the time he received it in his mailbox. Yocum's knowledge of the illegality of the interception arose only later, when he listened to the tape. Although the police argue that this delay between the receipt of the tape and the recognition of its illegality caused a critical break in the chain, the Supreme Court attached no significance to Yocum's receipt of the tape without knowledge of its contents. If the disconnect in time between the receipt of the tape and the later recognition that the tape had been recorded illegally was critical to the premise that Yocum had obtained the tape lawfully, the Court would have distinguished between Yocum and Vopper, who received the tape directly from Yocum and thus knew the tape had been recorded illegally at the time that he received it. Id. at 519, 121 S.Ct. 1753. Yet the Court explicitly stated that it found no distinction between Yocum and Vopper. Id. at 525 n. 8, 121 S.Ct. 1753. Like Vopper, Jean already had reason to know that the tape was illegally intercepted at the time that she received it; consequently, the Court's conclusion that Vopper obtained the tape lawfully applies equally to Jean.

The police still insist on a distinction between Jean and the defendants in Bartnicki because Jean's “active collaboration” with Pechonis as the essential “first link” in the chain of dissemination distinguishes this case from Bartnicki. They contend that Jean “had the opportunity to prevent the dissemination” and that “no one farther down the chain would have the same opportunity.” We also find this distinction unpersuasive. Critically, in Bartnicki, Yocum had the opportunity to prevent further disclosure. Although he did not know the tape was illegally intercepted when he received it, he had that knowledge at the time he disclosed the tape to the school board and Vopper. Thus, both Yocum and Jean could have prevented further dissemination by refusing to disclose the tape. In light of this similarity, the fact that Yocum received the tape “passively” and Jean received the tape “actively” is a distinction without a difference: both made the decision to proceed with their disclosures knowing that the tape was illegally intercepted, yet the Supreme Court held in Bartnicki that such a knowing disclosure is protected by the First Amendment.

Our conclusion is further supported by the D.C. Circuit's recent decision in Boehner v. McDermott, 484 F.3d 573 (D.C.Cir.2007)(en banc). In Boehner, Alice and John Martin illegally intercepted a cell phone conversation between Representative John Boehner and several House Republican leaders. The Martins delivered a tape of the conversation, accompanied by a typed letter explaining the nature of its contents, to the office of Representative James McDermott, the ranking Democrat on the House Ethics Committee, who, “[a]fter conversing with the Martins, ... accepted the envelope.” Id. at 576 McDermott listened to the tape that evening and disclosed it to various newspapers the following day. Boehner subsequently filed a complaint against McDermott seeking damages for violations of federal and state wiretapping statutes.

Following a lengthy procedural history,[FN4] the D.C. Circuit heard the case en banc. The majority held that “Representative McDermott's position on the Ethics Committee imposed a ‘special’ duty on him not to disclose the tape in these circumstances,” id. at 579, and thus he “had no First Amendment right to disclose the tape to the media,” id. at 579. The majority explicitly distinguished Bartnicki, explaining that the case “has little to say about” McDermott's special duty because “[t]he individuals who disclosed the tape in [Bartnicki ] were private citizens who did not occupy positions of trust.” Id. at 579. Importantly, however, “a majority of the members of the Court ... would have found [McDermott's] actions protected by the First Amendment” if he were not subject to a special duty as a member of the Ethics Committee. Id. at 580 (Griffith, J., concurring); see also id. at 581 (Sentelle, J., dissenting).[FN5] In other words, if McDermott had been a private citizen, like Jean, the court would have concluded that his disclosure of the tape was subject to First Amendment protection regardless of the fact that he received the tape directly from the Martins and thus served as the “first link” in the chain leading to publication.

Returning to Bartnicki, the police make a final attempt to distinguish the instant case by contending that language in Justice Breyer's concurring opinion, joined by Justice O'Connor, differentiates that case from the situation at hand. They cite the concurrence's statement that “[n]o one claims that [defendants] ordered, counseled, encouraged, or otherwise aided or abetted the interception, the later delivery of the tape by the interceptor to an intermediary, or the tape's still later delivery by the intermediary to the media,” Bartnicki, 532 U.S. at 538, 121 S.Ct. 1753 (Breyer, J., concurring) (emphasis added). The precise scope of the emphasized language is uncertain, and the police argue that Jean's knowing acceptance of the tape constitutes aiding and abetting its delivery to an intermediary in the person of Jean herself. Ultimately, however, this language does not help the police. The concurrence also states plainly that “the statutes do not forbid the receipt of the tape itself,” id. at 538, 121 S.Ct. 1753. This statement indicates that Justice Breyer did not interpret 18 U.S.C. § 2511(c), in conjunction with the federal aiding and abetting statute, 18 U.S.C. § 2, to punish an individual's acceptance of a tape, even if that individual had reason to know that the tape's contents were illegally intercepted. Moreover, if he had interpreted the statute to forbid later disclosure of the tape by one who had lawfully received it, he could not have joined the majority opinion, which held that the defendants, who certainly aided the tape's later delivery by an intermediary to the media, did nothing unlawful. Thus, the concurring opinion offers no basis for distinguishing Jean's situation from that of the defendants in Bartnicki.

III.

We conclude that the government interests in preserving privacy and deterring illegal interceptions are less compelling in this case than in Bartnicki, and Jean's circumstances are otherwise materially indistinguishable from those of the defendants in Bartnicki, whose publication of an illegally intercepted tape was protected by the First Amendment. Jean's publication of the recording on her website is thus entitled to the same First Amendment protection. Consequently, we agree with the district court that Jean has a reasonable likelihood of success on the merits of her suit for a permanent injunction. The district court's decision to grant Jean's request for a preliminary injunction is affirmed.

So ordered.

Footnotes

[FN1] The website is accessible at www.conte2006.com. Conte is no longer in office.

[FN2] Mass. Gen. Laws ch. 272 § 99(B)(4) defines an “interception” as “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” In pertinent part, Mass. Gen. Laws ch. 272 § 99(C)(1) states that any person who “willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception” may be punished with a fine of up to ten thousand dollars, imprisoned for up to five years, or both. Section 99(C)(3) states that an individual who “willfully discloses or attempts to disclose to any person the contents of any wire or oral communication, knowing that the information was obtained through interception ... shall be guilty of a misdemeanor.” Finally, section 99(C)(6) prohibits “permit[ting],” “participat[ing] in a conspiracy to commit,” or serving as an “accessory” to other violations of section 99.

[FN3] Since the time Jean filed her complaint, Reilly has been succeeded as Massachusetts Attorney General by Martha Coakley. Under Federal Rule of Civil Procedure 25, however, “the action does not abate and the officer's successor is automatically substituted as a party.” Fed.R.Civ.P. 25(d)(1).

[FN4] See Boehner, 484 F.3d at 574, for an account of this history.

[FN5] Judge Griffith joined the majority opinion but concurred to state explicitly that McDermott's publication would have been protected if he were not a member of the Ethics Committee. The dissent would have found McDermott's publication protected by the First Amendment regardless of his position on the Ethics Committee.

Interception of wire and oral communications.--

A. Preamble.

The general court finds that organized crime exists within the commonwealth and that the increasing activities of organized crime constitute a grave danger to the public welfare and safety. Organized crime, as it exists in the commonwealth today, consists of a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services. In supplying these goods and services organized crime commits unlawful acts and employs brutal and violent tactics. Organized crime is infiltrating legitimate business activities and depriving honest businessmen of the right to make a living.

The general court further finds that because organized crime carries on its activities through layers of insulation and behind a wall of secrecy, government has been unsuccessful in curtailing and eliminating it. Normal investigative procedures are not effective in the investigation of illegal acts committed by organized crime. Therefore, law enforcement officials must be permitted to use modern methods of electronic surveillance, under strict judicial supervision, when investigating these organized criminal activities.

The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited. The use of such devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime.

B. Definitions.

As used in this section--

1. The term “wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.

2. The term “oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.

3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof,

(a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or

(b) being used by a communications common carrier in the ordinary course of its business.

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

5. The term “contents”, when used with respect to any wire or oral communication, means any information concerning the identity of the parties to such communication or the existence, contents, substance, purport, or meaning of that communication.

6. The term “aggrieved person” means any individual who was a party to an intercepted wire or oral communication or who was named in the warrant authorizing the interception, or who would otherwise have standing to complain that his personal or property interest or privacy was invaded in the course of an interception.

7. The term “designated offense” shall include the following offenses in connection with organized crime as defined in the preamble: arson, assault and battery with a dangerous weapon, extortion, bribery, burglary, embezzlement, forgery, gaming in violation of section seventeen of chapter two hundred and seventy-one of the general laws, intimidation of a witness or juror, kidnapping, larceny, lending of money or things of value in violation of the general laws, mayhem, murder, any offense involving the possession or sale of a narcotic or harmful drug, perjury, prostitution, robbery, subornation of perjury, any violation of this section, being an accessory to any of the foregoing offenses and conspiracy or attempt or solicitation to commit any of the foregoing offenses.

8. The term “investigative or law enforcement officer” means any officer of the United States, a state or a political subdivision of a state, who is empowered by law to conduct investigations of, or to make arrests for, the designated offenses, and any attorney authorized by law to participate in the prosecution of such offenses.

9. The term “judge of competent jurisdiction” means any justice of the superior court of the commonwealth.

10. The term “chief justice” means the chief justice of the superior court of the commonwealth.

11. The term “issuing judge” means any justice of the superior court who shall issue a warrant as provided herein or in the event of his disability or unavailability any other judge of competent jurisdiction designated by the chief justice.

12. The term “communication common carrier” means any person engaged as a common carrier in providing or operating wire communication facilities.

13. The term “person” means any individual, partnership, association, joint stock company, trust, or corporation, whether or not any of the foregoing is an officer, agent or employee of the United States, a state, or a political subdivision of a state.

14. The terms “sworn” or “under oath” as they appear in this section shall mean an oath or affirmation or a statement subscribed to under the pains and penalties of perjury.

15. The terms “applicant attorney general” or “applicant district attorney” shall mean the attorney general of the commonwealth or a district attorney of the commonwealth who has made application for a warrant pursuant to this section.

16. The term “exigent circumstances” shall mean the showing of special facts to the issuing judge as to the nature of the investigation for which a warrant is sought pursuant to this section which require secrecy in order to obtain the information desired from the interception sought to be authorized.

17. The term “financial institution” shall mean a bank, as defined in section 1 of chapter 167, and an investment bank, securities broker, securities dealer, investment adviser, mutual fund, investment company or securities custodian as defined in section 1.165-12(c)(1) of the United States Treasury regulations.

18. The term “corporate and institutional trading partners” shall mean financial institutions and general business entities and corporations which engage in the business of cash and asset management, asset management directed to custody operations, securities trading, and wholesale capital markets including foreign exchange, securities lending, and the purchase, sale or exchange of securities, options, futures, swaps, derivatives, repurchase agreements and other similar financial instruments with such financial institution.

C. Offenses.

1. Interception, oral communications prohibited.

Except as otherwise specifically provided in this section any person who-- willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment. Proof of the installation of any intercepting device by any person under circumstances evincing an intent to commit an interception, which is not authorized or permitted by this section, shall be prima facie evidence of a violation of this subparagraph.

2. Editing of tape recordings in judicial proceeding prohibited.

Except as otherwise specifically provided in this section any person who willfully edits, alters or tampers with any tape, transcription or recording of oral or wire communications by any means, or attempts to edit, alter or tamper with any tape, transcription or recording of oral or wire communications by any means with the intent to present in any judicial proceeding or proceeding under oath, or who presents such recording or permits such recording to be presented in any judicial proceeding or proceeding under oath, without fully indicating the nature of the changes made in the original state of the recording, shall be fined not more than ten thousand dollars or imprisoned in the state prison for not more than five years or imprisoned in a jail or house of correction for not more than two years or both so fined and given one such imprisonment.

3. Disclosure or use of wire or oral communications prohibited.

Except as otherwise specifically provided in this section any person who--

a. willfully discloses or attempts to disclose to any person the contents of any wire or oral communication, knowing that the information was obtained through interception; or

b. willfully uses or attempts to use the contents of any wire or oral communication, knowing that the information was obtained through interception,

shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both.

4. Disclosure of contents of applications, warrants, renewals, and returns prohibited.

Except as otherwise specifically provided in this section any person who-- willfully discloses to any person, any information concerning or contained in, the application for, the granting or denial of orders for interception, renewals, notice or return on an ex parte order granted pursuant to this section, or the contents of any document, tape, or recording kept in accordance with paragraph N, shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both.

5. Possession of interception devices prohibited.

A person who possesses any intercepting device under circumstances evincing an intent to commit an interception not permitted or authorized by this section, or a person who permits an intercepting device to be used or employed for an interception not permitted or authorized by this section, or a person who possesses an intercepting device knowing that the same is intended to be used to commit an interception not permitted or authorized by this section, shall be guilty of a misdemeanor punishable by imprisonment in a jail or house of correction for not more than two years or by a fine of not more than five thousand dollars or both. The installation of any such intercepting device by such person or with his permission or at his direction shall be prima facie evidence of possession as required by this subparagraph.

6. Any person who permits or on behalf of any other person commits or attempts to commit, or any person who participates in a conspiracy to commit or to attempt to commit, or any accessory to a person who commits a violation of subparagraphs 1 through 5 of paragraph C of this section shall be punished in the same manner as is provided for the respective offenses as described in subparagraphs 1 through 5 of paragraph C.

D. Exemptions.

1. Permitted interception of wire or oral communications.

It shall not be a violation of this section--

a. for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire 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 service or to the protection of the rights or property of the carrier of such communication, or which is necessary to prevent the use of such facilities in violation of section fourteen A of chapter two hundred and sixty-nine of the general laws; provided, that said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

b. for persons to possess an office intercommunication system which is used in the ordinary course of their business or to use such office intercommunication system in the ordinary course of their business.

c. for investigative and law enforcement officers of the United States of America to violate the provisions of this section if acting pursuant to authority of the laws of the United States and within the scope of their authority.

d. for any person duly authorized to make specified interceptions by a warrant issued pursuant to this section.

e. for investigative or law enforcement officers to violate the provisions of this section for the purposes of ensuring the safety of any law enforcement officer or agent thereof who is acting in an undercover capacity, or as a witness for the commonwealth; provided, however, that any such interception which is not otherwise permitted by this section shall be deemed unlawful for purposes of paragraph P.

f. for a financial institution to record telephone communications with its corporate or institutional trading partners in the ordinary course of its business; provided, however, that such financial institution shall establish and maintain a procedure to provide semi-annual written notice to its corporate and institutional trading partners that telephone communications over designated lines will be recorded.

2. Permitted disclosure and use of intercepted wire or oral communications.

a. Any investigative or law enforcement officer, who, by any means authorized by this section, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents or evidence in the proper performance of his official duties.

b. Any investigative or law enforcement officer, who, by any means authorized by this section has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may use such contents or evidence in the proper performance of his official duties.

c. Any person who has obtained, by any means authorized by this section, knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents while giving testimony under oath or affirmation in any criminal proceeding in any court of the United States or of any state or in any federal or state grand jury proceeding.

d. The contents of any wire or oral communication intercepted pursuant to a warrant in accordance with the provisions of this section, or evidence derived therefrom, may otherwise be disclosed only upon a showing of good cause before a judge of competent jurisdiction.

e. No otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this section shall lose its privileged character.

E. Warrants: when issuable:

A warrant may issue only:

1. Upon a sworn application in conformity with this section; and

2. Upon a showing by the applicant that there is probable cause to believe that a designated offense has been, is being, or is about to be committed and that evidence of the commission of such an offense may thus be obtained or that information which will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit a designated offense may thus be obtained; and

3. Upon a showing by the applicant that normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried.

F. Warrants: application.

1. Application. The attorney general, any assistant attorney general specially designated by the attorney general, any district attorney, or any assistant district attorney specially designated by the district attorney may apply ex parte to a judge of competent jurisdiction for a warrant to intercept wire or oral communications. Each application ex parte for a warrant must be in writing, subscribed and sworn to by the applicant authorized by this subparagraph.

2. The application must contain the following:

a. A statement of facts establishing probable cause to believe that a particularly described designated offense has been, is being, or is about to be committed; and

b. A statement of facts establishing probable cause to believe that oral or wire communications of a particularly described person will constitute evidence of such designated offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit a designated offense; and

c. That the oral or wire communications of the particularly described person or persons will occur in a particularly described place and premises or over particularly described telephone or telegraph lines; and

d. A particular description of the nature of the oral or wire communications sought to be overheard; and

e. A statement that the oral or wire communications sought are material to a particularly described investigation or prosecution and that such conversations are not legally privileged; and

f. A statement of the period of time for which the interception is required to be maintained. If practicable, the application should designate hours of the day or night during which the oral or wire communications may be reasonably expected to occur. If the nature of the investigation is such that the authorization for the interception should not automatically terminate when the described oral or wire communications have been first obtained, the application must specifically state facts establishing probable cause to believe that additional oral or wire communications of the same nature will occur thereafter; and

g. If it is reasonably necessary to make a secret entry upon a private place and premises in order to install an intercepting device to effectuate the interception, a statement to such effect; and

h. If a prior application has been submitted or a warrant previously obtained for interception of oral or wire communications, a statement fully disclosing the date, court, applicant, execution, results, and present status thereof; and

i. If there is good cause for requiring the postponement of service pursuant to paragraph L, subparagraph 2, a description of such circumstances, including reasons for the applicant's belief that secrecy is essential to obtaining the evidence or information sought.

3. Allegations of fact in the application may be based either upon the personal knowledge of the applicant or upon information and belief. If the applicant personally knows the facts alleged, it must be so stated. If the facts establishing such probable cause are derived in whole or part from the statements of persons other than the applicant, the sources of such information and belief must be either disclosed or described; and the application must contain facts establishing the existence and reliability of any informant and the reliability of the information supplied by him. The application must also state, so far as possible, the basis of the informant's knowledge or belief. If the applicant's information and belief is derived from tangible evidence or recorded oral evidence, a copy or detailed description thereof should be annexed to or included in the application. Affidavits of persons other than the applicant may be submitted in conjunction with the application if they tend to support any fact or conclusion alleged therein. Such accompanying affidavits may be based either on personal knowledge of the affiant or information and belief, with the source thereof, and reason therefor, specified.

G. Warrants: application to whom made.

Application for a warrant authorized by this section must be made to a judge of competent jurisdiction in the county where the interception is to occur, or the county where the office of the applicant is located, or in the event that there is no judge of competent jurisdiction sitting in said county at such time, to a judge of competent jurisdiction sitting in Suffolk County; except that for these purposes, the office of the attorney general shall be deemed to be located in Suffolk County.

H. Warrants: application how determined.

1. If the application conforms to paragraph F, the issuing judge may examine under oath any person for the purpose of determining whether probable cause exists for the issuance of the warrant pursuant to paragraph E. A verbatim transcript of every such interrogation or examination must be taken, and a transcription of the same, sworn to by the stenographer, shall be attached to the application and be deemed a part thereof.

2. If satisfied that probable cause exists for the issuance of a warrant the judge may grant the application and issue a warrant in accordance with paragraph I. The application and an attested copy of the warrant shall be retained by the issuing judge and transported to the chief justice of the superior court in accordance with the provisions of paragraph N of this section.

3. If the application does not conform to paragraph F, or if the judge is not satisfied that probable cause has been shown sufficient for the issuance of a warrant, the application must be denied.

I. Warrants: form and content.

A warrant must contain the following:

1. The subscription and title of the issuing judge; and

2. The date of issuance, the date of effect, and termination date which in no event shall exceed thirty days from the date of effect. The warrant shall permit interception of oral or wire communications for a period not to exceed fifteen days. If physical installation of a device is necessary, the thirty-day period shall begin upon the date of installation. If the effective period of the warrant is to terminate upon the acquisition of particular evidence or information or oral or wire communication, the warrant shall so provide; and

3. A particular description of the person and the place, premises or telephone or telegraph line upon which the interception may be conducted; and

4. A particular description of the nature of the oral or wire communications to be obtained by the interception including a statement of the designated offense to which they relate; and

5. An express authorization to make secret entry upon a private place or premises to install a specified intercepting device, if such entry is necessary to execute the warrant; and

6. A statement providing for service of the warrant pursuant to paragraph L except that if there has been a finding of good cause shown requiring the postponement of such service, a statement of such finding together with the basis therefor must be included and an alternative direction for deferred service pursuant to paragraph L, subparagraph 2.

J. Warrants: renewals.

1. Any time prior to the expiration of a warrant or a renewal thereof, the applicant may apply to the issuing judge for a renewal thereof with respect to the same person, place, premises or telephone or telegraph line. An application for renewal must incorporate the warrant sought to be renewed together with the application therefor and any accompanying papers upon which it was issued. The application for renewal must set forth the results of the interceptions thus far conducted. In addition, it must set forth present grounds for extension in conformity with paragraph F, and the judge may interrogate under oath and in such an event a transcript must be provided and attached to the renewal application in the same manner as is set forth in subparagraph 1 of paragraph H.

2. Upon such application, the judge may issue an order renewing the warrant and extending the authorization for a period not exceeding fifteen (15) days from the entry thereof. Such an order shall specify the grounds for the issuance thereof. The application and an attested copy of the order shall be retained by the issuing judge to be transported to the chief justice in accordance with the provisions of subparagraph N of this section. In no event shall a renewal be granted which shall terminate later than two years following the effective date of the warrant.

K. Warrants: manner and time of execution.

1. A warrant may be executed pursuant to its terms anywhere in the commonwealth.

2. Such warrant may be executed by the authorized applicant personally or by any investigative or law enforcement officer of the commonwealth designated by him for the purpose.

3. The warrant may be executed according to its terms during the hours specified therein, and for the period therein authorized, or a part thereof. The authorization shall terminate upon the acquisition of the oral or wire communications, evidence or information described in the warrant. Upon termination of the authorization in the warrant and any renewals thereof, the interception must cease at once, and any device installed for the purpose of the interception must be removed as soon thereafter as practicable. Entry upon private premises for the removal of such device is deemed to be authorized by the warrant.

L. Warrants: service thereof.

1. Prior to the execution of a warrant authorized by this section or any renewal thereof, an attested copy of the warrant or the renewal must, except as otherwise provided in subparagraph 2 of this paragraph, be served upon a person whose oral or wire communications are to be obtained, and if an intercepting device is to be installed, upon the owner, lessee, or occupant of the place or premises, or upon the subscriber to the telephone or owner or lessee of the telegraph line described in the warrant.

2. If the application specially alleges exigent circumstances requiring the postponement of service and the issuing judge finds that such circumstances exist, the warrant may provide that an attested copy thereof may be served within thirty days after the expiration of the warrant or, in case of any renewals thereof, within thirty days after the expiration of the last renewal; except that upon a showing of important special facts which set forth the need for continued secrecy to the satisfaction of the issuing judge, said judge may direct that the attested copy of the warrant be served on such parties as are required by this section at such time as may be appropriate in the circumstances but in no event may he order it to be served later than three (3) years from the time of expiration of the warrant or the last renewal thereof. In the event that the service required herein is postponed in accordance with this paragraph, in addition to the requirements of any other paragraph of this section, service of an attested copy of the warrant shall be made upon any aggrieved person who should reasonably be known to the person who executed or obtained the warrant as a result of the information obtained from the interception authorized thereby.

3. The attested copy of the warrant shall be served on persons required by this section by an investigative or law enforcement officer of the commonwealth by leaving the same at his usual place of abode, or in hand, or if this is not possible by mailing the same by certified or registered mail to his last known place of abode. A return of service shall be made to the issuing judge, except, that if such service is postponed as provided in subparagraph 2 of paragraph L, it shall be made to the chief justice. The return of service shall be deemed a part of the return of the warrant and attached thereto.

M. Warrant: return.

Within seven days after termination of the warrant or the last renewal thereof, a return must be made thereon to the judge issuing the warrant by the applicant therefor, containing the following:

a. a statement of the nature and location of the communications facilities, if any, and premise or places where the interceptions were made; and

b. the periods of time during which such interceptions were made; and

c. the names of the parties to the communications intercepted if known; and

d. the original recording of the oral or wire communications intercepted, if any; and

e. a statement attested under the pains and penalties of perjury by each person who heard oral or wire communications as a result of the interception authorized by the warrant, which were not recorded, stating everything that was overheard to the best of his recollection at the time of the execution of the statement.

N. Custody and secrecy of papers and recordings made pursuant to a warrant.

1. The contents of any wire or oral communication intercepted pursuant to a warrant issued pursuant to this section shall, if possible, be recorded on tape or wire or other similar device. Duplicate recordings may be made for use pursuant to subparagraphs 2 (a) and (b) of paragraph D for investigations. Upon examination of the return and a determination that it complies with this section, the issuing judge shall forthwith order that the application, all renewal applications, warrant, all renewal orders and the return thereto be transmitted to the chief justice by such persons as he shall designate. Their contents shall not be disclosed except as provided in this section. The application, renewal applications, warrant, the renewal order and the return or any one of them or any part of them may be transferred to any trial court, grand jury proceeding of any jurisdiction by any law enforcement or investigative officer or court officer designated by the chief justice and a trial justice may allow them to be disclosed in accordance with paragraph D, subparagraph 2, or paragraph O or any other applicable provision of this section.

The application, all renewal applications, warrant, all renewal orders and the return shall be stored in a secure place which shall be designated by the chief justice, to which access shall be denied to all persons except the chief justice or such court officers or administrative personnel of the court as he shall designate.

2. Any violation of the terms and conditions of any order of the chief justice, pursuant to the authority granted in this paragraph, shall be punished as a criminal contempt of court in addition to any other punishment authorized by law.

3. The application, warrant, renewal and return shall be kept for a period of five (5) years from the date of the issuance of the warrant or the last renewal thereof at which time they shall be destroyed by a person designated by the chief justice. Notice prior to the destruction shall be given to the applicant attorney general or his successor or the applicant district attorney or his successor and upon a showing of good cause to the chief justice, the application, warrant, renewal, and return may be kept for such additional period as the chief justice shall determine but in no event longer than the longest period of limitation for any designated offense specified in the warrant, after which time they must be destroyed by a person designated by the chief justice.

O. Introduction of evidence.

1. Notwithstanding any other provisions of this section or any order issued pursuant thereto, in any criminal trial where the commonwealth intends to offer in evidence any portions of the contents of any interception or any evidence derived therefrom the defendant shall be served with a complete copy of each document and item which make up each application, renewal application, warrant, renewal order, and return pursuant to which the information was obtained, except that he shall be furnished a copy of any recording instead of the original. The service must be made at the arraignment of the defendant or, if a period in excess of thirty (30) days shall elapse prior to the commencement of the trial of the defendant, the service may be made at least thirty (30) days before the commencement of the criminal trial. Service shall be made in hand upon the defendant or his attorney by any investigative or law enforcement officer of the commonwealth. Return of the service required by this subparagraph including the date of service shall be entered into the record of trial of the defendant by the commonwealth and such return shall be deemed prima facie evidence of the service described therein. Failure by the commonwealth to make such service at the arraignment, or if delayed, at least thirty days before the commencement of the criminal trial, shall render such evidence illegally obtained for purposes of the trial against the defendant; and such evidence shall not be offered nor received at the trial notwithstanding the provisions of any other law or rules of court.

2. In any criminal trial where the commonwealth intends to offer in evidence any portions of a recording or transmission or any evidence derived therefrom, made pursuant to the exceptions set forth in paragraph B, subparagraph 4, of this section, the defendant shall be served with a complete copy of each recording or a statement under oath of the evidence overheard as a result of the transmission. The service must be made at the arraignment of the defendant or if a period in excess of thirty days shall elapse prior to the commencement of the trial of the defendant, the service may be made at least thirty days before the commencement of the criminal trial. Service shall be made in hand upon the defendant or his attorney by any investigative or law enforcement officer of the commonwealth. Return of the service required by this subparagraph including the date of service shall be entered into the record of trial of the defendant by the commonwealth and such return shall be deemed prima facie evidence of the service described therein. Failure by the commonwealth to make such service at the arraignment, or if delayed at least thirty days before the commencement of the criminal trial, shall render such service illegally obtained for purposes of the trial against the defendant and such evidence shall not be offered nor received at the trial notwithstanding the provisions of any other law or rules of court.

P. Suppression of evidence.

Any person who is a defendant in a criminal trial in a court of the commonwealth may move to suppress the contents of any intercepted wire or oral communication or evidence derived therefrom, for the following reasons:

1. That the communication was unlawfully intercepted.

2. That the communication was not intercepted in accordance with the terms of this section.

3. That the application or renewal application fails to set forth facts sufficient to establish probable cause for the issuance of a warrant.

4. That the interception was not made in conformity with the warrant.

5. That the evidence sought to be introduced was illegally obtained.

6. That the warrant does not conform to the provisions of this section.

Q. Civil remedy.

Any aggrieved person whose oral or wire communications were intercepted, disclosed or used except as permitted or authorized by this section or whose personal or property interests or privacy were violated by means of an interception except as permitted or authorized by this section shall have a civil cause of action against any person who so intercepts, discloses or uses such communications or who so violates his personal, property or privacy interest, and shall be entitled to recover from any such person--

1. actual damages but not less than liquidated damages computed at the rate of $100 per day for each day of violation or $1000, whichever is higher;

2. punitive damages; and

3. a reasonable attorney's fee and other litigation disbursements reasonably incurred. Good faith reliance on a warrant issued under this section shall constitute a complete defense to an action brought under this paragraph.

R. Annual report of interceptions of the general court.

On the second Friday of January, each year, the attorney general and each district attorney shall submit a report to the general court stating (1) the number of applications made for warrants during the previous year, (2) the name of the applicant, (3) the number of warrants issued, (4) the effective period for the warrants, (5) the number and designation of the offenses for which those applications were sought, and for each of the designated offenses the following: (a) the number of renewals, (b) the number of interceptions made during the previous year, (c) the number of indictments believed to be obtained as a result of those interceptions, (d) the number of criminal convictions obtained in trials where interception evidence or evidence derived therefrom was introduced. This report shall be a public document and be made available to the public at the offices of the attorney general and district attorneys. In the event of failure to comply with the provisions of this paragraph any person may compel compliance by means of an action of mandamus.

As used in this chapter—

(1) “wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce;

(2) “oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication;

(3) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States;

(4) “intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.

(5) “electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than—

(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties;

(b) a hearing aid or similar device being used to correct subnormal hearing to not better than normal;

(6) “person” means any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation;

(7) “Investigative or law enforcement officer” means any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses;

(8) “contents”, when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication;

(9) “Judge of competent jurisdiction” means—

(a) a judge of a United States district court or a United States court of appeals; and

(b) a judge of any court of general criminal jurisdiction of a State who is authorized by a statute of that State to enter orders authorizing interceptions of wire, oral, or electronic communications;

(10) “communication common carrier” has the meaning given that term in section 3 of the Communications Act of 1934;

(11) “aggrieved person” means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed;

(12) “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include—

(A) any wire or oral communication;

(B) any communication made through a tone-only paging device;

(C) any communication from a tracking device (as defined in section 3117 of this title); or

(D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;

(13) “user” means any person or entity who—

(A) uses an electronic communication service; and

(B) is duly authorized by the provider of such service to engage in such use;

(14) “electronic communications system” means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications;

(15) “electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications;

(16) “readily accessible to the general public” means, with respect to a radio communication, that such communication is not—

(A) scrambled or encrypted;

(B) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication;

(C) carried on a subcarrier or other signal subsidiary to a radio transmission;

(D) transmitted over a communication system provided by a common carrier, unless the communication is a tone only paging system communication; or

(E) transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio;

(17) “electronic storage” means—

(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;

(18) “aural transfer” means a transfer containing the human voice at any point between and including the point of origin and the point of reception;

(19) “foreign intelligence information”, for purposes of section 2517(6) of this title, means—

(A) information, whether or not concerning a United Statesperson, that relates to the ability of the United States to protect against—

(i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(ii) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(iii) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

(B) information, whether or not concerning a United Statesperson, with respect to a foreign power or foreign territory that relates to—

(i) the national defense or the security of the United States; or

(ii) the conduct of the foreign affairs of the United States;

(20) “protected computer” has the meaning set forth in section 1030; and

(21) “computer trespasser”—

(A) means a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and

(B) does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer.

(As of 2008 amendments)

(1) Except as otherwise specifically provided in this chapter any person who—

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—

(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or

(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or

(iv) such use or endeavor to use

(A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or

(B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or

(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;

(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or

(e)

(i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by sections 2511(2)(a)(ii), 2511(2)(b)–(c), 2511(2)(e), 2516, and 2518 of this chapter,

(ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation,

(iii) having obtained or received the information in connection with a criminal investigation, and

(iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation,

shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

(2)

(a)

(i) 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.

(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

(A) a court order directing such assistance or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978 signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished a court order or certification under this chapter, except as may otherwise be required by legal process and then only after prior notification to the Attorney General or to the principal prosecuting attorney of a State or any political subdivision of a State, as may be appropriate. Any such disclosure, shall render such person liable for the civil damages provided for in section 2520. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter.

(iii) If a certification under subparagraph (ii)(B) for assistance to obtain foreign intelligence information is based on statutory authority, the certification shall identify the specific statutory provision and shall certify that the statutory requirements have been met.

(b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.

(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act.

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

(g) It shall not be unlawful under this chapter or chapter 121 of this title for any person—

(i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;

(ii) to intercept any radio communication which is transmitted—

(I) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;

(II) by any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;

(III) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or

(IV) by any marine or aeronautical communications system;

(iii) to engage in any conduct which—

(I) is prohibited by section 633 of the Communications Act of 1934; or

(II) is excepted from the application of section 705(a) of the Communications Act of 1934 by section 705(b) of that Act;

(iv) to intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of such interference; or

(v) for other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not scrambled or encrypted.

(h) It shall not be unlawful under this chapter—

(i) to use a pen register or a trap and trace device (as those terms are defined for the purposes of chapter 206 (relating to pen registers and trap and trace devices) of this title); or

(ii) for a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service.

(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if—

(I) the owner or operator of the protected computer authorizes the interception of the computer trespasser’s communications on the protected computer;

(II) the person acting under color of law is lawfully engaged in an investigation;

(III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser’s communications will be relevant to the investigation; and

(IV) such interception does not acquire communications other than those transmitted to or from the computer trespasser.

(3)

(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.

(b) A person or entity providing electronic communication service to the public may divulge the contents of any such communication—

(i) as otherwise authorized in section 2511(2)(a) or 2517 of this title;

(ii) with the lawful consent of the originator or any addressee or intended recipient of such communication;

(iii) to a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or

(iv) which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency.

(4)

(a) Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.

(b) Conduct otherwise an offense under this subsection that consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted—

(i) to a broadcasting station for purposes of retransmission to the general public; or

(ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls, is not an offense under this subsection unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain.

(5)

(a)

(i) If the communication is—

(A) a private satellite video communication that is not scrambled or encrypted and the conduct in violation of this chapter is the private viewing of that communication and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; or

(B) a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of this chapter is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the person who engages in such conduct shall be subject to suit by the Federal Government in a court of competent jurisdiction.

(ii) In an action under this subsection—

(A) if the violation of this chapter is a first offense for the person under paragraph (a) of subsection (4) and such person has not been found liable in a civil action under section 2520 of this title, the Federal Government shall be entitled to appropriate injunctive relief; and

(B) if the violation of this chapter is a second or subsequent offense under paragraph (a) of subsection (4) or such person has been found liable in any prior civil action under section 2520, the person shall be subject to a mandatory $500 civil fine.

(b) The court may use any means within its authority to enforce an injunction issued under paragraph (ii)(A), and shall impose a civil fine of not less than $500 for each violation of such an injunction.

Two relevant definitions to the section below, from 18 U.S.C. § 3127:

(3) the term “pen register” means a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication, but such term does not include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business;

(4) the term “trap and trace device” means a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication;

18 U.S. Code § 3121 - General prohibition on pen register and trap and trace device use; exception

(a) In General. — Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

(b) Exception. — The prohibition of subsection (a) does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service—

(1) relating to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of such provider, or to the protection of users of that service from abuse of service or unlawful use of service; or

(2) to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or

(3) where the consent of the user of that service has been obtained.

(c) Limitation. — A government agency authorized to install and use a pen register or trap and trace device under this chapter or under State law shall use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing, routing, addressing, and signaling information utilized in the processing and transmitting of wire or electronic communications so as not to include the contents of any wire or electronic communications.

(d) Penalty. — Whoever knowingly violates subsection (a) shall be fined under this title or imprisoned not more than one year, or both.

18 U.S.C. § 2701 – Unlawful access to stored communications

(as of amendments in 2002)

(a) Offense.— Except as provided in subsection (c) of this section whoever—

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

(b) Punishment.— The punishment for an offense under subsection (a) of this section is—

(1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State—

(A) a fine under this title or imprisonment for not more than 5 years, or both, in the case of a first offense under this subparagraph; and

(B) a fine under this title or imprisonment for not more than 10 years, or both, for any subsequent offense under this subparagraph; and

(2) in any other case—

(A) a fine under this title or imprisonment for not more than 1 year or both, in the case of a first offense under this paragraph; and

(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section.

(c) Exceptions. — 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;

(2) by a user of that service with respect to a communication of or intended for that user; or

(3) in section 2703, 2704 or 2518 of this title.

18 U.S.C. § 2702 – Voluntary disclosure of customer communications or records

(as of amendments in 2015)

(a) Prohibitions.— Except as provided in subsection (b) or (c)—

(1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and

(2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service—

(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;

(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing; and

(3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.

(b) Exceptions for disclosure of communications. — A provider described in subsection (a) may divulge the contents of a communication—

(1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;

(2) as otherwise authorized in section 2517, 2511(2)(a), or 2703 of this title;

(3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;

(4) to a person employed or authorized or whose facilities are used to forward such communication to its destination;

(5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

(6) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A;

(7) to a law enforcement agency—

(A) if the contents—

(i) were inadvertently obtained by the service provider; and

(ii) appear to pertain to the commission of a crime; or

(8) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.

(c) Exceptions for Disclosure of Customer Records. — A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))—

(1) as otherwise authorized in section 2703;

(2) with the lawful consent of the customer or subscriber;

(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency;

(5) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A; or

(6) to any person other than a governmental entity.

(d) Reporting of Emergency Disclosures. — On an annual basis, the Attorney General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report containing—

(1) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (b)(8);

(2) a summary of the basis for disclosure in those instances where—

(A) voluntary disclosures under subsection (b)(8) were made to the Department of Justice; and

(B) the investigation pertaining to those disclosures was closed without the filing of criminal charges; and

(3) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (c)(4).

18 U.S.C. § 2701 – Unlawful access to stored communications

(as of amendments in 2002)

(a) Offense.— Except as provided in subsection (c) of this section whoever—

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

(b) Punishment.— The punishment for an offense under subsection (a) of this section is—

(1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State—

(A) a fine under this title or imprisonment for not more than 5 years, or both, in the case of a first offense under this subparagraph; and

(B) a fine under this title or imprisonment for not more than 10 years, or both, for any subsequent offense under this subparagraph; and

(2) in any other case—

(A) a fine under this title or imprisonment for not more than 1 year or both, in the case of a first offense under this paragraph; and

(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section.

(c) Exceptions. — 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;

(2) by a user of that service with respect to a communication of or intended for that user; or

(3) in section 2703, 2704 or 2518 of this title.

18 U.S.C. § 2702 – Voluntary disclosure of customer communications or records

(as of amendments in 2015)

(a) Prohibitions.— Except as provided in subsection (b) or (c)—

(1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and

(2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service—

(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;

(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing; and

(3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.

(b) Exceptions for disclosure of communications. — A provider described in subsection (a) may divulge the contents of a communication—

(1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;

(2) as otherwise authorized in section 2517, 2511(2)(a), or 2703 of this title;

(3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;

(4) to a person employed or authorized or whose facilities are used to forward such communication to its destination;

(5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

(6) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A;

(7) to a law enforcement agency—

(A) if the contents—

(i) were inadvertently obtained by the service provider; and

(ii) appear to pertain to the commission of a crime; or

(8) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.

(c) Exceptions for Disclosure of Customer Records. — A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))—

(1) as otherwise authorized in section 2703;

(2) with the lawful consent of the customer or subscriber;

(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency;

(5) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A; or

(6) to any person other than a governmental entity.

(d) Reporting of Emergency Disclosures. — On an annual basis, the Attorney General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report containing—

(1) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (b)(8);

(2) a summary of the basis for disclosure in those instances where—

(A) voluntary disclosures under subsection (b)(8) were made to the Department of Justice; and

(B) the investigation pertaining to those disclosures was closed without the filing of criminal charges; and

(3) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (c)(4).

121 S.Ct. 1753

Supreme Court of the United States

Gloria BARTNICKI and Anthony F. Kane, Jr., Petitioners,
v.
Frederick W. VOPPER, aka Fred Williams, et al.

United States, Petitioner,
v.
Frederick W. Vopper, aka Fred Williams, et al.

Nos. 99–1687, 99–1728.

Argued Dec. 5, 2000.
Decided May 21, 2001.

Jeremiah A. Collins, Washington, DC, for petitioners in 99–1687.

Seth P. Waxman, Washington, DC, for petitioner in 99–1728.

Lee Levine, Washington, DC, for respondents Frederick W. Vopper, et al.

Thomas C. Goldstein, Washington, DC, for respondent Jack Yocum.

Justice STEVENS delivered the opinion of the Court.

These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication. That question is both novel and narrow. Despite the fact that federal law has prohibited such disclosures since 1934,[FN1] this is the first time that we have confronted such an issue.

The suit at hand involves the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue. The persons who made the disclosures did not participate in the interception, but they did know—or at least had reason to know—that the interception was unlawful. Accordingly, these cases present a conflict between interests of the highest order—on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech. The Framers of the First Amendment surely did not foresee the advances in science that produced the conversation, the interception, or the conflict that gave rise to this action. It is therefore not surprising that Circuit judges, as well as the Members of this Court, have come to differing conclusions about the First Amendment's application to this issue. Nevertheless, having considered the interests at stake, we are firmly convinced that the disclosures made by respondents in this suit are protected by the First Amendment.

I

During 1992 and most of 1993, the Pennsylvania State Education Association, a union representing the teachers at the Wyoming Valley West High School, engaged in collective-bargaining negotiations with the school board. Petitioner Kane, then the president of the local union, testified that the negotiations were “ ‘contentious' ” and received “a lot of media attention.” App. 79, 92. In May 1993, petitioner Bartnicki, who was acting as the union's “chief negotiator,” used the cellular phone in her car to call Kane and engage in a lengthy conversation about the status of the negotiations. An unidentified person intercepted and recorded that call.

In their conversation, Kane and Bartnicki discussed the timing of a proposed strike, id., at 41–45, difficulties created by public comment on the negotiations, id., at 46, and the need for a dramatic response to the board's intransigence. At one point, Kane said: “ ‘If they're not gonna move for three percent, we're gonna have to go to their, their homes .... To blow off their front porches, we'll have to do some work on some of those guys. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE).’ ” Ibid.

In the early fall of 1993, the parties accepted a nonbinding arbitration proposal that was generally favorable to the teachers. In connection with news reports about the settlement, respondent Vopper, a radio commentator who had been critical of the union in the past, played a tape of the intercepted conversation on his public affairs talk show. Another station also broadcast the tape, and local newspapers published its contents. After filing suit against Vopper and other representatives of the media, Bartnicki and Kane (hereinafter petitioners) learned through discovery that Vopper had obtained the tape from respondent Jack Yocum, the head of a local taxpayers' organization that had opposed the union's demands throughout the negotiations. Yocum, who was added as a defendant, testified that he had found the tape in his mailbox shortly after the interception and recognized the voices of Bartnicki and Kane. Yocum played the tape for some members of the school board, and later delivered the tape itself to Vopper.

II

In their amended complaint, petitioners alleged that their telephone conversation had been surreptitiously intercepted by an unknown person using an electronic device, that Yocum had obtained a tape of that conversation, and that he intentionally disclosed it to Vopper, as well as other individuals and media representatives. Thereafter, Vopper and other members of the media repeatedly published the contents of that conversation. The amended complaint alleged that each of the defendants “knew or had reason to know” that the recording of the private telephone conversation had been obtained by means of an illegal interception. Id., at 27. Relying on both federal and Pennsylvania statutory provisions, petitioners sought actual damages, statutory damages, punitive damages, and attorney's fees and costs.[FN2]

After the parties completed their discovery, they filed cross-motions for summary judgment. Respondents contended that they had not violated the statute because (a) they had nothing to do with the interception, and (b) in any event, their actions were not unlawful since the conversation might have been intercepted inadvertently. Moreover, even if they had violated the statute by disclosing the intercepted conversation, respondents argued, those disclosures were protected by the First Amendment. The District Court rejected the first statutory argument because, under the plain statutory language, an individual violates the federal Act by intentionally disclosing the contents of an electronic communication when he or she “know[s] or ha[s] reason to know that the information was obtained” through an illegal interception.[FN3] App. to Pet. for Cert. in No. 99–1687, pp. 53a–54a (emphasis deleted). Accordingly, actual involvement in the illegal interception is not necessary in order to establish a violation of that statute. With respect to the second statutory argument, the District Court agreed that petitioners had to prove that the interception in question was intentional,[FN4] but concluded that the text of the interception raised a genuine issue of material fact with respect to intent. That issue of fact was also the basis for the District Court's denial of petitioners' motion. Finally, the District Court rejected respondents' First Amendment defense because the statutes were content-neutral laws of general applicability that contained “no indicia of prior restraint or the chilling of free speech.” Id., at 55a–56a.

Thereafter, the District Court granted a motion for an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b). It certified as controlling questions of law: “(1) whether the imposition of liability on the media Defendants under the [wiretapping statutes] solely for broadcasting the newsworthy tape on the Defendant [Vopper's] radio news/public affairs program, when the tape was illegally intercepted and recorded by unknown persons who were not agents of [the] Defendants, violates the First Amendment; and (2) whether imposition of liability under the aforesaid [wiretapping] statutes on Defendant Jack Yocum solely for providing the anonymously intercepted and recorded tape to the media Defendants violates the First Amendment.” App. to Pet. for Cert. in No. 99–1728, p. 76a. The Court of Appeals accepted the appeal, and the United States, also a petitioner, intervened pursuant to 28 U.S.C. § 2403 in order to defend the constitutionality of the federal statute.

All three members of the panel agreed with petitioners and the Government that the federal and Pennsylvania wiretapping statutes are “content-neutral” and therefore subject to “intermediate scrutiny.” 200 F.3d 109, 121 (C.A.3 1999). Applying that standard, the majority concluded that the statutes were invalid because they deterred significantly more speech than necessary to protect the privacy interests at stake. The court remanded the case with instructions to enter summary judgment for respondents. In dissent, Senior Judge Pollak expressed the view that the prohibition against disclosures was necessary in order to remove the incentive for illegal interceptions and to preclude compounding the harm caused by such interceptions through wider dissemination. In so doing, he agreed with the majority opinion in a similar case decided by the Court of Appeals for the District of Columbia, Boehner v. McDermott, 191 F.3d 463 (C.A.D.C.1999). See also Peavy v. WFAA–TV, Inc., 221 F.3d 158 (C.A.5 2000).[FN5] We granted certiorari to resolve the conflict. 530 U.S. 1260, 120 S.Ct. 2716, 147 L.Ed.2d 981 (2000).

III

As we pointed out in Berger v. New York, 388 U.S. 41, 45–49, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), sophisticated (and not so sophisticated) methods of eavesdropping on oral conversations and intercepting telephone calls have been practiced for decades, primarily by law enforcement authorities.[FN6] In Berger, we held that New York's broadly written statute authorizing the police to conduct wiretaps violated the Fourth Amendment. Largely in response to that decision, and to our holding in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that the attachment of a listening and recording device to the outside of a telephone booth constituted a search, “Congress undertook to draft comprehensive legislation both authorizing the use of evidence obtained by electronic surveillance on specified conditions, and prohibiting its use otherwise. S.Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968), U.S.Code Cong. & Admin.News 1968, pp. 2112, 2153.” Gelbard v. United States, 408 U.S. 41, 78, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972) (REHNQUIST, J., dissenting). The ultimate result of those efforts was Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, entitled Wiretapping and Electronic Surveillance.

One of the stated purposes of that title was “to protect effectively the privacy of wire and oral communications.” Ibid. In addition to authorizing and regulating electronic surveillance for law enforcement purposes, Title III also regulated private conduct. One part of those regulations, § 2511(1), defined five offenses punishable by a fine of not more than $10,000, by imprisonment for not more than five years, or by both. Subsection (a) applied to any person who “willfully intercepts ... any wire or oral communication.” Subsection (b) applied to the intentional use of devices designed to intercept oral conversations; subsection (d) applied to the use of the contents of illegally intercepted wire or oral communications; and subsection (e) prohibited the unauthorized disclosure of the contents of interceptions that were authorized for law enforcement purposes. Subsection (c), the original version of the provision most directly at issue in this suit, applied to any person who “willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection.” The oral communications protected by the Act were only those “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” § 2510(2).

As enacted in 1968, Title III did not apply to the monitoring of radio transmissions. In the Electronic Communications Privacy Act of 1986, 100 Stat. 1848, however, Congress enlarged the coverage of Title III to prohibit the interception of “electronic” as well as oral and wire communications. By reason of that amendment, as well as a 1994 amendment which applied to cordless telephone communications, 108 Stat. 4279, Title III now applies to the interception of conversations over both cellular and cordless phones.[FN7] Although a lesser criminal penalty may apply to the interception of such transmissions, the same civil remedies are available whether the communication was “oral,” “wire,” or “electronic,” as defined by 18 U.S.C. § 2510 (1994 ed. and Supp. V).

IV

The constitutional question before us concerns the validity of the statutes as applied to the specific facts of these cases. Because of the procedural posture of these cases, it is appropriate to make certain important assumptions about those facts. We accept petitioners' submission that the interception was intentional, and therefore unlawful, and that, at a minimum, respondents “had reason to know” that it was unlawful. Accordingly, the disclosure of the contents of the intercepted conversation by Yocum to school board members and to representatives of the media, as well as the subsequent disclosures by the media defendants to the public, violated the federal and state statutes. Under the provisions of the federal statute, as well as its Pennsylvania analogue, petitioners are thus entitled to recover damages from each of the respondents. The only question is whether the application of these statutes in such circumstances violates the First Amendment.[FN8]

In answering that question, we accept respondents' submission on three factual matters that serve to distinguish most of the cases that have arisen under § 2511. First, respondents played no part in the illegal interception. Rather, they found out about the interception only after it occurred, and in fact never learned the identity of the person or persons who made the interception. Second, their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else. Cf. Florida Star v. B.J.F., 491 U.S. 524, 536, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (“Even assuming the Constitution permitted a State to proscribe receipt of information, Florida has not taken this step”). Third, the subject matter of the conversation was a matter of public concern. If the statements about the labor negotiations had been made in a public arena—during a bargaining session, for example—they would have been newsworthy. This would also be true if a third party had inadvertently overheard Bartnicki making the same statements to Kane when the two thought they were alone.

V

We agree with petitioners that § 2511(1)(c), as well as its Pennsylvania analog, is in fact a content-neutral law of general applicability. “Deciding whether a particular regulation is content based or content neutral is not always a simple task.... As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642–643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In determining whether a regulation is content based or content neutral, we look to the purpose behind the regulation; typically, “[g]overnment regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech.’ ” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).[FN9]

In this suit, the basic purpose of the statute at issue is to “protec [t] the privacy of wire[, electronic,] and oral communications.” S.Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968), U.S.Code Cong. & Admin.News 1968, pp. 2112, 2153. The statute does not distinguish based on the content of the intercepted conversations, nor is it justified by reference to the content of those conversations. Rather, the communications at issue are singled out by virtue of the fact that they were illegally intercepted—by virtue of the source, rather than the subject matter.

On the other hand, the naked prohibition against disclosures is fairly characterized as a regulation of pure speech. Unlike the prohibition against the “use” of the contents of an illegal interception in § 2511(1)(d),[FN10] subsection (c) is not a regulation of conduct. It is true that the delivery of a tape recording might be regarded as conduct, but given that the purpose of such a delivery is to provide the recipient with the text of recorded statements, it is like the delivery of a handbill or a pamphlet, and as such, it is the kind of “speech” that the First Amendment protects.[FN11] As the majority below put it, “[i]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct.” 200 F.3d, at 120.

VI

As a general matter, “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979). More specifically, this Court has repeatedly held that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need ... of the highest order.” Id., at 103, 99 S.Ct. 2667; see also Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978).

Accordingly, in New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam), the Court upheld the right of the press to publish information of great public concern obtained from documents stolen by a third party. In so doing, that decision resolved a conflict between the basic rule against prior restraints on publication and the interest in preserving the secrecy of information that, if disclosed, might seriously impair the security of the Nation. In resolving that conflict, the attention of every Member of this Court was focused on the character of the stolen documents' contents and the consequences of public disclosure. Although the undisputed fact that the newspaper intended to publish information obtained from stolen documents was noted in Justice Harlan's dissent, id., at 754, 91 S.Ct. 2140, neither the majority nor the dissenters placed any weight on that fact.

However, New York Times v. United States raised, but did not resolve, the question “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well.”[FN12] Florida Star, 491 U.S., at 535, n. 8, 109 S.Ct. 2603. The question here, however, is a narrower version of that still-open question. Simply put, the issue here is this: “Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?” Boehner, 191 F.3d, at 484–485 (Sentelle, J., dissenting).

Our refusal to construe the issue presented more broadly is consistent with this Court's repeated refusal to answer categorically whether truthful publication may ever be punished consistent with the First Amendment. Rather,

“[o]ur cases have carefully eschewed reaching this ultimate question, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily.... We continue to believe that the sensitivity and significance of the interests presented in clashes between [the] First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.”

Florida Star, 491 U.S., at 532–533, 109 S.Ct. 2603. See also Landmark Communications, 435 U.S., at 838, 98 S.Ct. 1535. Accordingly, we consider whether, given the facts of these cases, the interests served by § 2511(1)(c) can justify its restrictions on speech.

The Government identifies two interests served by the statute—first, the interest in removing an incentive for parties to intercept private conversations, and second, the interest in minimizing the harm to persons whose conversations have been illegally intercepted. We assume that those interests adequately justify the prohibition in § 2511(1)(d) against the interceptor's own use of information that he or she acquired by violating § 2511(1)(a), but it by no means follows that punishing disclosures of lawfully obtained information of public interest by one not involved in the initial illegality is an acceptable means of serving those ends.

The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it. If the sanctions that presently attach to a violation of § 2511(1)(a) do not provide sufficient deterrence, perhaps those sanctions should be made more severe. But it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party. Although there are some rare occasions in which a law suppressing one party's speech may be justified by an interest in deterring criminal conduct by another, see, e.g., New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982),[FN13] this is not such a case.

With only a handful of exceptions, the violations of § 2511(1)(a) that have been described in litigated cases have been motivated by either financial gain or domestic disputes.[FN14] In virtually all of those cases, the identity of the person or persons intercepting the communication has been known.[FN15] Moreover, petitioners cite no evidence that Congress viewed the prohibition against disclosures as a response to the difficulty of identifying persons making improper use of scanners and other surveillance devices and accordingly of deterring such conduct,[FN16] and there is no empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions.[FN17]

Although this suit demonstrates that there may be an occasional situation in which an anonymous scanner will risk criminal prosecution by passing on information without any expectation of financial reward or public praise, surely this is the exceptional case. Moreover, there is no basis for assuming that imposing sanctions upon respondents will deter the unidentified scanner from continuing to engage in surreptitious interceptions. Unusual cases fall far short of a showing that there is a “need ... of the highest order” for a rule supplementing the traditional means of deterring antisocial conduct. The justification for any such novel burden on expression must be “far stronger than mere speculation about serious harms.” United States v. Treasury Employees, 513 U.S. 454, 475, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995).[FN18] Accordingly, the Government's first suggested justification for applying § 2511(1)(c) to an otherwise innocent disclosure of public information is plainly insufficient.[FN19]

The Government's second argument, however, is considerably stronger. Privacy of communication is an important interest, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985),[FN20] and Title III's restrictions are intended to protect that interest, thereby “encouraging the uninhibited exchange of ideas and information among private parties....” Brief for United States 27. Moreover, the fear of public disclosure of private conversations might well have a chilling effect on private speech.

“In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.”

President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967).

Accordingly, it seems to us that there are important interests to be considered on both sides of the constitutional calculus. In considering that balance, we acknowledge that some intrusions on privacy are more offensive than others, and that the disclosure of the contents of a private conversation can be an even greater intrusion on privacy than the interception itself. As a result, there is a valid independent justification for prohibiting such disclosures by persons who lawfully obtained access to the contents of an illegally intercepted message, even if that prohibition does not play a significant role in preventing such interceptions from occurring in the first place.

We need not decide whether that interest is strong enough to justify the application of § 2511(c) to disclosures of trade secrets or domestic gossip or other information of purely private concern. Cf. Time, Inc. v. Hill, 385 U.S. 374, 387–388, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) (reserving the question whether truthful publication of private matters unrelated to public affairs can be constitutionally proscribed). In other words, the outcome of these cases does not turn on whether § 2511(1)(c) may be enforced with respect to most violations of the statute without offending the First Amendment. The enforcement of that provision in these cases, however, implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern.

In these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: “The right of privacy does not prohibit any publication of matter which is of public or general interest.” The Right to Privacy, 4 Harv. L.Rev. 193, 214 (1890). One of the costs associated with participation in public affairs is an attendant loss of privacy.

“Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. ‘Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ ”

Time, Inc. v. Hill, 385 U.S., at 388, 87 S.Ct. 534 (quoting Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)).[FN21]

Our opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), reviewed many of the decisions that settled the “general proposition that freedom of expression upon public questions is secured by the First Amendment.” Id., at 269, 84 S.Ct. 710; see Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Those cases all relied on our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times, 376 U.S., at 270, 84 S.Ct. 710; see Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Whitney v. California, 274 U.S. 357, 375–376, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring); see also Roth, 354 U.S., at 484, 77 S.Ct. 1304; Stromberg, 283 U.S., at 369, 51 S.Ct. 532; Bridges, 314 U.S., at 270, 62 S.Ct. 190. It was the overriding importance of that commitment that supported our holding that neither factual error nor defamatory content, nor a combination of the two, sufficed to remove the First Amendment shield from criticism of official conduct. Id., at 273, 62 S.Ct. 190; see also NAACP v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); Pennekamp v. Florida, 328 U.S. 331, 342, 343, n. 5, 345, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); Bridges, 314 U.S., at 270, 62 S.Ct. 190.

We think it clear that parallel reasoning requires the conclusion that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.[FN22] The months of negotiations over the proper level of compensation for teachers at the Wyoming Valley West High School were unquestionably a matter of public concern, and respondents were clearly engaged in debate about that concern. That debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis' classic opinion in Whitney v. California, 274 U.S., at 372, 47 S.Ct. 641, but it is no less worthy of constitutional protection.

The judgment is affirmed. It is so ordered.

Justice BREYER, with whom Justice O'CONNOR joins, concurring.

I join the Court's opinion. I agree with its narrow holding limited to the special circumstances present here: (1) the radio broadcasters acted lawfully (up to the time of final public disclosure); and (2) the information publicized involved a matter of unusual public concern, namely, a threat of potential physical harm to others. I write separately to explain why, in my view, the Court's holding does not imply a significantly broader constitutional immunity for the media.

As the Court recognizes, the question before us—a question of immunity from statutorily imposed civil liability—implicates competing constitutional concerns. Ante, at 1763–1764. The statutes directly interfere with free expression in that they prevent the media from publishing information. At the same time, they help to protect personal privacy—an interest here that includes not only the “right to be let alone,” Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting), but also “the interest ... in fostering private speech,” ante, at 1756. Given these competing interests “on both sides of the equation, the key question becomes one of proper fit.” Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 227, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (BREYER, J., concurring in part). See also Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 402, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (BREYER, J., concurring).

I would ask whether the statutes strike a reasonable balance between their speech-restricting and speech-enhancing consequences. Or do they instead impose restrictions on speech that are disproportionate when measured against their corresponding privacy and speech-related benefits, taking into account the kind, the importance, and the extent of these benefits, as well as the need for the restrictions in order to secure those benefits? What this Court has called “strict scrutiny”—with its strong presumption against constitutionality—is normally out of place where, as here, important competing constitutional interests are implicated. See ante, at 1756 (recognizing “conflict between interests of the highest order”); ante, at 1764 (“important interests to be considered on both sides of the constitutional calculus”); ante, at 1765 (“balanc[ing]” the interest in privacy “against the interest in publishing matters of public importance”); ibid. (privacy interest outweighed in these cases).

The statutory restrictions before us directly enhance private speech. See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (describing “ ‘freedom not to speak publicly’ ” (quoting Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 348, 296 N.Y.S.2d 771, 244 N.E.2d 250, 255 (1968))). The statutes ensure the privacy of telephone conversations much as a trespass statute ensures privacy within the home. That assurance of privacy helps to overcome our natural reluctance to discuss private matters when we fear that our private conversations may become public. And the statutory restrictions consequently encourage conversations that otherwise might not take place.

At the same time, these statutes restrict public speech directly, deliberately, and of necessity. They include media publication within their scope not simply as a means, say, to deter interception, but also as an end. Media dissemination of an intimate conversation to an entire community will often cause the speakers serious harm over and above the harm caused by an initial disclosure to the person who intercepted the phone call. See Gelbard v. United States, 408 U.S. 41, 51–52, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). And the threat of that widespread dissemination can create a far more powerful disincentive to speak privately than the comparatively minor threat of disclosure to an interceptor and perhaps to a handful of others. Insofar as these statutes protect private communications against that widespread dissemination, they resemble laws that would award damages caused through publication of information obtained by theft from a private bedroom. See generally Warren & Brandeis, The Right to Privacy, 4 Harv. L.Rev. 193 (1890) (hereinafter Warren & Brandeis). See also Restatement (Second) of Torts § 652D (1977).

As a general matter, despite the statutes' direct restrictions on speech, the Federal Constitution must tolerate laws of this kind because of the importance of these privacy and speech-related objectives. See Warren & Brandeis 196 (arguing for state-law protection of the right to privacy). Cf. Katz v. United States, 389 U.S. 347, 350–351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (“[T]he protection of a person's general right to privacy—his right to be let alone by other people—is, like the protection of his property and of his very life, left largely to the law of the individual States”); ante, at 1756 (protecting privacy and promoting speech are “interests of the highest order”). Rather than broadly forbid this kind of legislative enactment, the Constitution demands legislative efforts to tailor the laws in order reasonably to reconcile media freedom with personal, speech-related privacy.

Nonetheless, looked at more specifically, the statutes, as applied in these circumstances, do not reasonably reconcile the competing constitutional objectives. Rather, they disproportionately interfere with media freedom. For one thing, the broadcasters here engaged in no unlawful activity other than the ultimate publication of the information another had previously obtained. They “neither encouraged nor participated directly or indirectly in the interception.” App. to Pet. for Cert. in No. 99–1687, p. 33a. See also ante, at 1760. No one claims that they ordered, counseled, encouraged, or otherwise aided or abetted the interception, the later delivery of the tape by the interceptor to an intermediary, or the tape's still later delivery by the intermediary to the media. Cf. 18 U.S.C. § 2 (criminalizing aiding and abetting any federal offense); 2 W. LaFave & A. Scott, Substantive Criminal Law §§ 6.6(b)-(c), pp. 128–129 (1986) (describing criminal liability for aiding and abetting). And, as the Court points out, the statutes do not forbid the receipt of the tape itself. Ante, at 1760. The Court adds that its holding “does not apply to punishing parties for obtaining the relevant information unlawfully.” Ante, at 1764, n. 19 (emphasis added).

For another thing, the speakers had little or no legitimate interest in maintaining the privacy of the particular conversation. That conversation involved a suggestion about “blow[ing] off ... front porches” and “do[ing] some work on some of those guys,” App. 46, thereby raising a significant concern for the safety of others. Where publication of private information constitutes a wrongful act, the law recognizes a privilege allowing the reporting of threats to public safety. See Restatement (Second) of Torts § 595, Comment g (1977) (general privilege to report that “another intends to kill or rob or commit some other serious crime against a third person”); id., § 652G (privilege applies to invasion of privacy tort). Cf. Restatement (Third) of Unfair Competition § 40, Comment c (1995) (trade secret law permits disclosures relevant to public health or safety, commission of crime or tort, or other matters of substantial public concern); Lachman v. Sperry–Sun Well Surveying Co., 457 F.2d 850, 853 (C.A.10 1972) (nondisclosure agreement not binding in respect to criminal activity); Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 436, 131 Cal.Rptr. 14, 551 P.2d 334, 343–344 (1976)(psychiatric privilege not binding in presence of danger to self or others). Even where the danger may have passed by the time of publication, that fact cannot legitimize the speaker's earlier privacy expectation. Nor should editors, who must make a publication decision quickly, have to determine present or continued danger before publishing this kind of threat.

Further, the speakers themselves, the president of a teacher's union and the union's chief negotiator, were “limited public figures,” for they voluntarily engaged in a public controversy. They thereby subjected themselves to somewhat greater public scrutiny and had a lesser interest in privacy than an individual engaged in purely private affairs. See, e.g., ante, at 1765 (respondents were engaged in matter of public concern); Wolston v. Reader's Digest Assn., Inc., 443 U.S. 157, 164, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Hutchinson v. Proxmire, 443 U.S. 111, 134, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979); Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). See also Warren & Brandeis 215.

This is not to say that the Constitution requires anyone, including public figures, to give up entirely the right to private communication, i.e., communication free from telephone taps or interceptions. But the subject matter of the conversation at issue here is far removed from that in situations where the media publicizes truly private matters. See Michaels v. Internet Entertainment Group, Inc., 5 F.Supp.2d 823, 841–842 (C.D.Cal.1998) (broadcast of videotape recording of sexual relations between famous actress and rock star not a matter of legitimate public concern); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on Law of Torts § 117, p. 857 (5th ed.1984) (stating that there is little expectation of privacy in mundane facts about a person's life, but that “portrayal of ... intimate private characteristics or conduct” is “quite a different matter”); Warren & Brandeis 214 (recognizing that in certain matters “the community has no legitimate concern”). Cf. Time, Inc. v. Firestone, 424 U.S. 448, 454–455, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) (despite interest of public, divorce of wealthy person not a “public controversy”). Cf. also ante, at 1764 (“[S]ome intrusions on privacy are more offensive than others”).

Thus, in finding a constitutional privilege to publish unlawfully intercepted conversations of the kind here at issue, the Court does not create a “public interest” exception that swallows up the statutes' privacy-protecting general rule. Rather, it finds constitutional protection for publication of intercepted information of a special kind. Here, the speakers' legitimate privacy expectations are unusually low, and the public interest in defeating those expectations is unusually high. Given these circumstances, along with the lawful nature of respondents' behavior, the statutes' enforcement would disproportionately harm media freedom.

I emphasize the particular circumstances before us because, in my view, the Constitution permits legislatures to respond flexibly to the challenges future technology may pose to the individual's interest in basic personal privacy. Clandestine and pervasive invasions of privacy, unlike the simple theft of documents from a bedroom, are genuine possibilities as a result of continuously advancing technologies. Eavesdropping on ordinary cellular phone conversations in the street (which many callers seem to tolerate) is a very different matter from eavesdropping on encrypted cellular phone conversations or those carried on in the bedroom. But the technologies that allow the former may come to permit the latter. And statutes that may seem less important in the former context may turn out to have greater importance in the latter. Legislatures also may decide to revisit statutes such as those before us, creating better tailored provisions designed to encourage, for example, more effective privacy-protecting technologies. For these reasons, we should avoid adopting overly broad or rigid constitutional rules, which would unnecessarily restrict legislative flexibility. I consequently agree with the Court's holding that the statutes as applied here violate the Constitution, but I would not extend that holding beyond these present circumstances.

Chief Justice REHNQUIST, with whom Justice SCALIA and Justice THOMAS join, dissenting.

Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations. In an attempt to prevent some of the most egregious violations of privacy, the United States, the District of Columbia, and 40 States have enacted laws prohibiting the intentional interception and knowing disclosure of electronic communications.[DFN1] The Court holds that all of these statutes violate the First Amendment insofar as the illegally intercepted conversation touches upon a matter of “public concern,” an amorphous concept that the Court does not even attempt to define. But the Court's decision diminishes, rather than enhances, the purposes of the First Amendment, thereby chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day.

Over 30 years ago, with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Congress recognized that the

“tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communication is seriously jeopardized by these techniques of surveillance.... No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word relating to each man's personal, marital, religious, political, or commercial concerns can be intercepted by an unseen auditor and turned against the speaker to the auditor's advantage.”

S.Rep. No. 1097, 90th Cong., 2d Sess., 67 (1968) (hereinafter S.Rep. No. 1097), U.S.Code Cong. & Admin.News 1968, pp. 2112, 2154.

This concern for privacy was inseparably bound up with the desire that personal conversations be frank and uninhibited, not cramped by fears of clandestine surveillance and purposeful disclosure:

“In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.”

President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967).

To effectuate these important privacy and speech interests, Congress and the vast majority of States have proscribed the intentional interception and knowing disclosure of the contents of electronic communications.[DFN2] See, e.g., 18 U.S.C. § 2511(1)(c) (placing restrictions upon “any person who ... intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication”).

The Court correctly observes that these are “content-neutral law[s] of general applicability” which serve recognized interests of the “highest order”: “the interest in individual privacy and ... in fostering private speech.” Ante, at 1760, 1756. It nonetheless subjects these laws to the strict scrutiny normally reserved for governmental attempts to censor different viewpoints or ideas. See ante, at 1763 (holding that petitioners have not established the requisite “ ‘need ... of the highest order’ ”) (quoting Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979)). There is scant support, either in precedent or in reason, for the Court's tacit application of strict scrutiny.

A content-neutral regulation will be sustained if

“ ‘it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’ ”

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (quoting United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)). Here, Congress and the Pennsylvania Legislature have acted “ ‘without reference to the content of the regulated speech.’ ” Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). There is no intimation that these laws seek “to suppress unpopular ideas or information or manipulate the public debate” or that they “distinguish favored speech from disfavored speech on the basis of the ideas or views expressed.” Turner Broadcasting, supra, at 641, 643, 114 S.Ct. 2445. The antidisclosure provision is based solely upon the manner in which the conversation was acquired, not the subject matter of the conversation or the viewpoints of the speakers. The same information, if obtained lawfully, could be published with impunity. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (upholding under intermediate scrutiny a protective order on information acquired during discovery in part because “the party may disseminate the identical information ... as long as the information is gained through means independent of the court's processes”). As the concerns motivating strict scrutiny are absent, these content-neutral restrictions upon speech need pass only intermediate scrutiny.

The Court's attempt to avoid these precedents by reliance upon the Daily Mail string of newspaper cases is unpersuasive. In these cases, we held that statutes prohibiting the media from publishing certain truthful information—the name of a rape victim, Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the confidential proceedings before a state judicial review commission, Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), and the name of a juvenile defendant, Daily Mail, supra; Oklahoma Publishing Co. v. District Court, Oklahoma Cty., 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (per curiam)—violated the First Amendment. In so doing, we stated that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” Daily Mail, supra, at 103, 99 S.Ct. 2667. Neither this Daily Mail principle nor any other aspect of these cases, however, justifies the Court's imposition of strict scrutiny here.

Each of the laws at issue in the Daily Mail cases regulated the content or subject matter of speech. This fact alone was enough to trigger strict scrutiny, see United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (“[A] content-based speech restriction ... can stand only if it satisfies strict scrutiny”), and suffices to distinguish these antidisclosure provisions. But, as our synthesis of these cases in Florida Star made clear, three other unique factors also informed the scope of the Daily Mail principle.

First, the information published by the newspapers had been lawfully obtained from the government itself.[DFN3] “Where information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts.” Florida Star, supra, at 534, 109 S.Ct. 2603. See, e.g., Landmark Communications, supra, at 841, and n. 12, 98 S.Ct. 1535 (noting that the State could have taken steps to protect the confidentiality of its proceedings, such as holding in contempt commission members who breached their duty of confidentiality). Indeed, the State's ability to control the information undermined the claim that the restriction was necessary, for “[b]y placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served.” Cox Broadcasting, supra, at 495, 95 S.Ct. 1029. This factor has no relevance in the present cases, where we deal with private conversations that have been intentionally kept out of the public domain.

Second, the information in each case was already “publicly available,” and punishing further dissemination would not have advanced the purported government interests of confidentiality. Florida Star, supra, at 535, 109 S.Ct. 2603. Such is not the case here. These statutes only prohibit “disclos[ure],” 18 U.S.C. § 2511(1)(c); 18 Pa. Cons.Stat. § 5703(2) (2000), and one cannot “disclose” what is already in the public domain. See Black's Law Dictionary 477 (7th ed.1999) (defining “disclosure” as “[t]he act or process of making known something that was previously unknown; a revelation of facts”); *547 S.Rep. No. 1097, at 93, U.S.Code Cong. & Admin.News 1968, pp. 2112, 2181 (“The disclosure of the contents of an intercepted communication that had already become ‘public information’ or ‘common knowledge’ would not be prohibited”). These laws thus do not fall under the axiom that “the interests in privacy fade when the information involved already appears on the public record.” Cox Broadcasting, supra, at 494–495, 95 S.Ct. 1029.

Third, these cases were concerned with “the ‘timidity and self-censorship’ which may result from allowing the media to be punished for publishing certain truthful information.” Florida Star, 491 U.S., at 535, 109 S.Ct. 2603. But fear of “timidity and self-censorship” is a basis for upholding, not striking down, these antidisclosure provisions: They allow private conversations to transpire without inhibition. And unlike the statute at issue in Florida Star, which had no scienter requirement, see id., at 539, 109 S.Ct. 2603, these statutes only address those who knowingly disclose an illegally intercepted conversation.[DFN4] They do not impose a duty to inquire into the source of the information and one could negligently disclose the contents of an illegally intercepted communication without liability.

In sum, it is obvious that the Daily Mail cases upon which the Court relies do not address the question presented here. Our decisions themselves made this clear: “The Daily Mail principle does not settle the issue whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well.” Florida Star, supra, at 535, n. 8, 109 S.Ct. 2603; see also Daily Mail, 443 U.S., at 105, 99 S.Ct. 2667 (“Our holding in this case is narrow. There is no issue before us of unlawful press [conduct]”); Landmark Communications, 435 U.S., at 837, 98 S.Ct. 1535 (“We are not here concerned with the possible applicability of the statute to one who secures the information by illegal means and thereafter divulges it”).[DFN5]

Undaunted, the Court places an inordinate amount of weight upon the fact that the receipt of an illegally intercepted communication has not been criminalized. See ante, at 1761–1764. But this hardly renders those who knowingly receive and disclose such communications “law-abiding,” ante, at 1762, and it certainly does not bring them under the Daily Mail principle. The transmission of the intercepted communication from the eavesdropper to the third party is itself illegal; and where, as here, the third party then knowingly discloses that communication, another illegal act has been committed. The third party in this situation cannot be likened to the reporters in the Daily Mail cases, who lawfully obtained their information through consensual interviews or public documents.

These laws are content neutral; they only regulate information that was illegally obtained; they do not restrict republication of what is already in the public domain; they impose no special burdens upon the media; they have a scienter requirement to provide fair warning; and they promote the privacy and free speech of those using cellular telephones. It is hard to imagine a more narrowly tailored prohibition of the disclosure of illegally intercepted communications, and it distorts our precedents to review these statutes under the often fatal standard of strict scrutiny. These laws therefore should be upheld if they further a substantial governmental interest unrelated to the suppression of free speech, and they do.

Congress and the overwhelming majority of States reasonably have concluded that sanctioning the knowing disclosure of illegally intercepted communications will deter the initial interception itself, a crime which is extremely difficult to detect. It is estimated that over 20 million scanners capable of intercepting cellular transmissions currently are in operation, see Thompson, Cell Phone Snooping: Why Electronic Eavesdropping Goes Unpunished, 35 Am.Crim. L.Rev. 137, 149 (1997), notwithstanding the fact that Congress prohibited the marketing of such devices eight years ago, see 47 U.S.C. § 302a(d).[DFN6] As Congress recognized, “[a]ll too often the invasion of privacy itself will go unknown. Only by striking at all aspects of the problem can privacy be adequately protected.” S.Rep. No. 1097, at 69, U.S.Code Cong. & Admin.News 1968, pp. 2112, 2156. See also Hearings on H.R. 3378 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 99th Cong., 1st Sess. and 2d Sess., 290 (1986) (“Congress should be under no illusion ... that the Department [of Justice], because of the difficulty of such investigations, would be able to bring a substantial number of successful prosecutions”).

Nonetheless, the Court faults Congress for providing “no empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions,” ante, at 1763, and insists that “there is no basis for assuming that imposing sanctions upon respondents will deter the unidentified scanner from continuing to engage in surreptitious interceptions,” ante, at 1763. It is the Court's reasoning, not the judgment of Congress and numerous States regarding the necessity of these laws, which disappoints.

The “quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 391, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000). “[C]ourts must accord substantial deference to the predictive judgments of Congress.” Turner Broadcasting, 512 U.S., at 665, 114 S.Ct. 2445 (citing Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973)). This deference recognizes that, as an institution, Congress is far better equipped than the judiciary to evaluate the vast amounts of data bearing upon complex issues and that “[s]ound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable.” Turner Broadcasting, 512 U.S., at 665, 114 S.Ct. 2445. Although we must nonetheless independently evaluate such congressional findings in performing our constitutional review, this “is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own.” Id., at 666, 114 S.Ct. 2445.

The “dry-up-the-market” theory, which posits that it is possible to deter an illegal act that is difficult to police by preventing the wrongdoer from enjoying the fruits of the crime, is neither novel nor implausible. It is a time-tested theory that undergirds numerous laws, such as the prohibition of the knowing possession of stolen goods. See 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.10(a), p. 422 (1986) (“Without such receivers, theft ceases to be profitable. It is obvious that the receiver must be a principal target of any society anxious to stamp out theft in its various forms”). We ourselves adopted the exclusionary rule based upon similar reasoning, believing that it would “deter unreasonable searches,” Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), by removing an officer's “incentive to disregard [the Fourth Amendment],” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).[DFN7]

The same logic applies here and demonstrates that the incidental restriction on alleged First Amendment freedoms is no greater than essential to further the interest of protecting the privacy of individual communications. Were there no prohibition on disclosure, an unlawful eavesdropper who wanted to disclose the conversation could anonymously launder the interception through a third party and thereby avoid detection. Indeed, demand for illegally obtained private information would only increase if it could be disclosed without repercussion. The law against interceptions, which the Court agrees is valid, would be utterly ineffectual without these antidisclosure provisions.

For a similar reason, we upheld against First Amendment challenge a law prohibiting the distribution of child pornography. See New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Just as with unlawfully intercepted electronic communications, we there noted the difficulty of policing the “low-profile, clandestine industry” of child pornography production and concurred with 36 legislatures that “[t]he most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.” Id., at 760, 102 S.Ct. 3348. In so doing, we did not demand, nor did Congress provide, any empirical evidence to buttress this basic syllogism. Indeed, we reaffirmed the theory's vitality in Osborne v. Ohio, 495 U.S. 103, 109–110, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), finding it “surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.”[DFN8]

At base, the Court's decision to hold these statutes unconstitutional rests upon nothing more than the bald substitution of its own prognostications in place of the reasoned judgment of 41 legislative bodies and the United States Congress.[DFN9] The Court does not explain how or from where Congress should obtain statistical evidence about the effectiveness of these laws, and “[s]ince as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled.” Elkins, supra, at 218, 80 S.Ct. 1437. Reliance upon the “dry-up-the-market” theory is both logical and eminently reasonable, and our precedents make plain that it is “far stronger than mere speculation.” United States v. Treasury Employees, 513 U.S. 454, 475, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995).

These statutes also protect the important interests of deterring clandestine invasions of privacy and preventing the involuntary broadcast of private communications. Over a century ago, Samuel Warren and Louis Brandeis recognized that “[t]he intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual.” The Right to Privacy, 4 Harv. L.Rev. 193, 196 (1890). “There is necessarily, and within suitably defined areas, a ... freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (internal quotation marks and citation omitted). One who speaks into a phone “is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.” Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); cf. Gelbard v. United States, 408 U.S. 41, 52, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972) (compelling testimony about matters obtained from an illegal interception at a grand jury proceeding “compounds the statutorily proscribed invasion of ... privacy by adding to the injury of the interception the insult of ... disclosure”).

These statutes undeniably protect this venerable right of privacy. Concomitantly, they further the First Amendment rights of the parties to the conversation. “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broadcasting, 512 U.S., at 641, 114 S.Ct. 2445. By “protecting the privacy of individual thought and expression,” United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 302, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), these statutes further the “uninhibited, robust, and wide-open” speech of the private parties, New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Unlike the laws at issue in the Daily Mail cases, which served only to protect the identities and actions of a select group of individuals, these laws protect millions of people who communicate electronically on a daily basis. The chilling effect of the Court's decision upon these private conversations will surely be great: An estimated 49.1 million analog cellular telephones are currently in operation. See Hao, Nokia Profits from Surge in Cell Phones, Fla. Today, July 18, 1999, p. E1.

Although the Court recognizes and even extols the virtues of this right to privacy, see ante, at 1764, these are “mere words,” W. Shakespeare, Troilus and Cressida, act v, sc. 3, overridden by the Court's newfound right to publish unlawfully acquired information of “public concern,” ante, at 1760. The Court concludes that the private conversation between Gloria Bartnicki and Anthony Kane is somehow a “debate .... worthy of constitutional protection.” Ante, at 1765. Perhaps the Court is correct that “[i]f the statements about the labor negotiations had been made in a public arena—during a bargaining session, for example—they would have been newsworthy.” Ante, at 1760. The point, however, is that Bartnicki and Kane had no intention of contributing to a public “debate” at all, and it is perverse to hold that another's unlawful interception and knowing disclosure of their conversation is speech “worthy of constitutional protection.” Cf. Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (“[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say’ ”). The Constitution should not protect the involuntary broadcast of personal conversations. Even where the communications involve public figures or concern public matters, the conversations are nonetheless private and worthy of protection. Although public persons may have forgone the right to live their lives screened from public scrutiny in some areas, it does not and should not follow that they also have abandoned their right to have a private conversation without fear of it being intentionally intercepted and knowingly disclosed.

The Court's decision to hold inviolable our right to broadcast conversations of “public importance” enjoys little support in our precedents. As discussed above, given the qualified nature of their holdings, the Daily Mail cases cannot bear the weight the Court places upon them. More mystifying still is the Court's reliance upon the “Pentagon Papers” case, New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam), which involved the United States' attempt to prevent the publication of Defense Department documents relating to the Vietnam War. In addition to involving Government controlled information, that case fell squarely under our precedents holding that prior restraints on speech bear “ ‘a heavy presumption against ... constitutionality.’ ” Id., at 714, 91 S.Ct. 2140. Indeed, it was this presumption that caused Justices Stewart and White to join the 6–to–3 per curiam decision. See id., at 730–731, 91 S.Ct. 2140 (White, J., joined by Stewart, J., concurring) (“I concur in today's judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system”). By no stretch of the imagination can the statutes at issue here be dubbed “prior restraints.” And the Court's “parallel reasoning” from other inapposite cases fails to persuade. Ante, at 1765.

Surely “the interest in individual privacy,” ante, at 1756, at its narrowest, must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations. The Court subordinates that right, not to the claims of those who themselves wish to speak, but to the claims of those who wish to publish the intercepted conversations of others. Congress' effort to balance the above claim to privacy against a marginal claim to speak freely is thereby set at naught.

Footnotes

[FN1] See 48 Stat. 1069, 1103.

[FN2] Either actual damages or “statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000” may be recovered under 18 U.S.C. § 2520(c)(2); under the Pennsylvania Act, the amount is the greater of $100 a day or $1,000, but the plaintiff may also recover punitive damages and reasonable attorney's fees. 18 Pa. Cons.Stat. § 5725(a) (2000).

[FN3] Title 18 U.S.C. § 2511(1)(c) provides that any person who “intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; ... shall be punished....” The Pennsylvania Act contains a similar provision.

[FN4] Title 18 U.S.C. § 2511(1)(a) provides: “(1) Except as otherwise specifically provided in this chapter [§§ 2510–2520 (1994 ed. and Supp. V) ] any person who—

“(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; ... shall be punished....”

[FN5] In the Boehner case, as in this suit, a conversation over a car cell phone was intercepted, but in that case the defendant knew both who was responsible for intercepting the conversation and how they had done it. 191 F.3d, at 465. In the opinion of the majority, the defendant acted unlawfully in accepting the tape in order to provide it to the media. Id., at 476. Apparently because the couple responsible for the interception did not eavesdrop “for purposes of direct or indirect commercial advantage or private financial gain,” they were fined only $500. See Department of Justice Press Release, Apr. 23, 1997. In another similar case involving a claim for damages under § 2511(1)(c), Peavy v. WFAA–TV, Inc., 221 F.3d 158 (C.A.5 2000), the media defendant in fact participated in the interceptions at issue.

[FN6] In particular, calls placed on cellular and cordless telephones can be intercepted more easily than those placed on traditional phones. See Shubert v. Metrophone, Inc., 898 F.2d 401, 404–405 (C.A.3 1990). Although calls placed on cell and cordless phones can be easily intercepted, it is not clear how often intentional interceptions take place. From 1992 through 1997, less than 100 cases were prosecuted charging violations of 18 U.S.C. § 2511. See Statement of James K. Kallstrom, Assistant Director in Charge of the New York Division of the FBI on February 5, 1997 before the Subcommittee on Telecommunications, Trade, and Consumer Protection, Committee on Commerce, U.S. House of Representatives Regarding Cellular Privacy. However, information concerning techniques and devices for intercepting cell and cordless phone calls can be found in a number of publications, trade magazines, and sites on the Internet, see id., at 6, and at one set of congressional hearings in 1997, a scanner, purchased off the shelf and minimally modified, was used to intercept phone calls of Members of Congress.

[FN7] See, e.g., Nix v. O'Malley, 160 F.3d 343, 346 (C.A.6 1998); McKamey v. Roach, 55 F.3d 1236, 1240 (C.A.6 1995).

[FN8] In answering this question, we draw no distinction between the media respondents and Yocum. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 265–266, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).

[FN9] “But while a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary to such a showing in all cases.... Nor will the mere assertion of a content-neutral purpose be enough to save a law which, on its face, discriminates based on content.” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642–643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).

[FN10] The Solicitor General has cataloged some of the cases that fall under subsection (d): “[I]t is unlawful for a company to use an illegally intercepted communication about a business rival in order to create a competing product; it is unlawful for an investor to use illegally intercepted communications in trading in securities; it is unlawful for a union to use an illegally intercepted communication about management (or vice versa) to prepare strategy for contract negotiations; it is unlawful for a supervisor to use information in an illegally recorded conversation to discipline a subordinate; and it is unlawful for a blackmailer to use an illegally intercepted communication for purposes of extortion. See, e.g., 1968 Senate Report 67 (corporate and labor-management uses); Fultz v. Gilliam, 942 F.2d 396, 400 n. 4 (6th Cir.1991) (extortion); Dorris v. Absher, 959 F.Supp. 813, 815–817 (M.D.Tenn.1997) (workplace discipline), aff'd. in part, rev'd in part, 179 F.3d 420 (6th Cir.1999). The statute has also been held to bar the use of illegally intercepted communications for important and socially valuable purposes. See In re Grand Jury, 111 F.3d 1066, 1077–1079 (3d Cir.1997).” Brief for United States 24.

[FN11] Put another way, what gave rise to statutory liability in this suit was the information communicated on the tapes. See Boehner v. McDermott, 191 F.3d 463, 484 (C.A.D.C.1999) (Sentelle, J., dissenting) (“What ... is being punished ... here is not conduct dependent upon the nature or origin of the tapes; it is speech dependent upon the nature of the contents”).

[FN12] That question was subsequently reserved in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 837, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978).

[FN13] In cases relying on such a rationale, moreover, the speech at issue is considered of minimal value. Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); New York v. Ferber, 458 U.S., at 762, 102 S.Ct. 3348 (“The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis ”).

The Government also points to two other areas of the law—namely, mail theft and stolen property—in which a ban on the receipt or possession of an item is used to deter some primary illegality. Brief for United States 14; see also post, at 1773–1774 (REHNQUIST, C.J., dissenting). Neither of those examples, though, involve prohibitions on speech. As such, they are not relevant to a First Amendment analysis.

[FN14] The media respondents have included a list of 143 cases under § 2511(1)(a) and 63 cases under §§ 2511(1)(c) and (d)—which must also involve violations of subsection (a)—in an appendix to their brief. The Reply Brief filed by the United States contains an appendix describing each of the cases in the latter group.

[FN15] In only 5 of the 206 cases listed in the appendixes, see n. 14, supra, n. 17, infra, was the identity of the interceptor wholly unknown.

[FN16] The legislative history of the 1968 Act indicates that Congress' concern focused on private surveillance “in domestic relations and industrial espionage situations.” S.Rep. No. 1097, 90th Cong., 2d Sess., 225 (1968), U.S.Code Cong. & Admin.News 1968, pp. 2112, 2274. Similarly, in connection with the enactment of the 1986 amendment, one Senator referred to the interest in protecting private communications from “a corporate spy, a police officer without probable cause, or just a plain snoop.” 131 Cong. Rec. 24366 (1985) (statement of Sen. Leahy).

[FN17] The dissent argues that we have not given proper respect to “congressional findings” or to “ ‘Congress' factual predictions.’ ” Post, at 1773. But the relevant factual foundation is not to be found in the legislative record. Moreover, the dissent does not argue that Congress did provide empirical evidence in support of its assumptions, nor, for that matter, does it take real issue with the fact that in the vast majority of cases involving illegal interceptions, the identity of the person or persons responsible for the interceptions is known. Instead, the dissent advances a minor disagreement with our numbers, stating that nine cases “involved an unknown or unproved eavesdropper.” Post, at 1774, n. 9 (emphasis added). The dissent includes in that number cases in which the identity of the interceptor, though suspected, was not “proved” because the identity of the interceptor was not at issue or the evidence was insufficient. In any event, whether there are 5 cases or 9 involving anonymous interceptors out of the 206 cases under § 2511, in most of the cases involving illegal interceptions, the identity of the interceptor is no mystery. If, as the proponents of the dry-up-the-market theory would have it, it is difficult to identify the persons responsible for illegal interceptions (and thus necessary to prohibit disclosure by third parties with no connection to, or responsibility for, the initial illegality), one would expect to see far more cases in which the identity of the interceptor was unknown (and, concomitantly, far fewer in which the interceptor remained anonymous). Thus, not only is there a dearth of evidence in the legislative record to support the dry-up-the-market theory, but what postenactment evidence is available cuts against it.

[FN18] Indeed, even the burden of justifying restrictions on commercial speech requires more than “ ‘mere speculation or conjecture.’ ” Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U.S. 173, 188, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999).

[FN19] Our holding, of course, does not apply to punishing parties for obtaining the relevant information unlawfully. “It would be frivolous to assert—and no one does in these cases—that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.” Branzburg v. Hayes, 408 U.S. 665, 691, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

[FN20] “ ‘The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.’ ” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S., at 559, 105 S.Ct. 2218 (quoting Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 348, 296 N.Y.S.2d 771, 244 N.E.2d 250, 255 (1968)).

[FN21] Moreover, “our decisions establish that absent exceptional circumstances, reputational interests alone cannot justify the proscription of truthful speech.” Butterworth v. Smith, 494 U.S. 624, 634, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990).

[FN22] See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 535, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (acknowledging “the ‘timidity and self-censorship’ which may result from allowing the media to be punished for publishing truthful information”).

[DFN1] See 18 U.S.C. § 2511(1) (1994 ed. and Supp. V); Ala.Code § 13A–11–30 et seq. (1994); Alaska Stat. Ann. § 42.20.300(d) (2000); Ark.Code Ann. § 5–60–120 (1997); Cal.Penal Code Ann. § 631 (West 1999); Colo.Rev.Stat. § 18–9–303 (2000); Del.Code Ann., Tit. 11, § 1336(b)(1) (1995); D.C.Code Ann. § 23–542 (1996); Fla. Stat. § 934.03(1) (Supp.2001); Ga.Code Ann. § 16–11–66.1 (1996); Haw.Rev.Stat. § 803–42 (1993); Idaho Code § 18–6702 (1997); Ill. Comp. Stat., ch. 720, § 5/14–2(b) (1999 Supp.); Iowa Code § 808B.2 (1994); Kan. Stat. Ann. § 21–4002 (1995); Ky.Rev.Stat. Ann. § 526.060 (Michie 1999); La.Rev.Stat. Ann. § 15:1303 (West 1992); Me.Rev.Stat. Ann., Tit. 15, § 710(3) (Supp.2000); Md. Cts. & Jud. Proc.Code Ann. § 10–402 (Supp.2000); Mass. Gen. Laws § 272:99(C)(3) (1997); Mich. Comp. Laws Ann. § 750.539e (West 1991); Minn.Stat. § 626A.02 (2000); Mo.Rev.Stat. § 542.402 (2000); Neb.Rev.Stat. § 86–702 (1999); Nev.Rev.Stat. § 200.630 (1995); N.H.Rev.Stat. Ann. § 570–A:2 (Supp.2000); N.J. Stat. Ann. § 2A:156A–3 (West Supp.2000); N.M. Stat. Ann. § 30–12–1 (1994); N.C. Gen.Stat. § 15A–287 (1999); N.D. Cent.Code § 12.1–15–02 (1997); Ohio Rev.Code Ann. § 2933.52(A)(3) (1997); Okla. Stat., Tit. 13, § 176.3 (2000 Supp.); Ore.Rev.Stat. § 165.540 (1997); 18 Pa. Cons.Stat. § 5703 (2000); R.I. Gen. Laws § 11–35–21 (2000); Tenn.Code Ann. § 39–13–601 (1997); Tex. Penal Code Ann. § 16.02 (Supp.2001); Utah Code Ann. § 77–23a–4 (1982); Va.Code Ann. § 19.2–62 (1995); W. Va.Code § 62–1D–3 (2000); Wis. Stat. § 968.31(1) (1994); Wyo. Stat. Ann. § 7–3–602 (1995).

[DFN2] “Electronic communication” is defined as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system.” 18 U.S.C. § 2510(12) (1994 ed., Supp. V).

[DFN3] The one exception was Daily Mail, where reporters obtained the juvenile defendant's name from witnesses to the crime. See 443 U.S., at 99, 99 S.Ct. 2667. However, the statute at issue there imposed a blanket prohibition on the publication of the information. See id., at 98–99, 99 S.Ct. 2667. In contrast, these antidisclosure provisions do not prohibit publication so long as the information comes from a legal source.

[DFN4] In 1986, to ensure that only the most culpable could face liability for disclosure, Congress increased the scienter requirement from “willful” to “intentional.” 18 U.S.C. § 2511(1)(c); see also S.Rep. No. 99–541, p. 6 (1986) (“In order to underscore that the inadvertent reception of a protected communication is not a crime, the subcommittee changed the state of mind requirement under [Title III] from ‘willful’ to ‘intentional’ ”).

[DFN5] Tellingly, we noted in Florida Star that “[t]o the extent sensitive information rests in private hands, the government may under some circumstances forbid its nonconsensual acquisition, thereby bringing outside of the Daily Mail principle the publication of any information so acquired.” 491 U.S., at 534, 109 S.Ct. 2603; see also id., at 535, 109 S.Ct. 2603 (“[I]t is highly anomalous to sanction persons other than the source of [the] release”).

[DFN6] The problem is pervasive because legal “radio scanners [may be] modified to intercept cellular calls.” S.Rep. No. 99–541, at 9. For example, the scanner at issue in Boehner v. McDermott, 191 F.3d 463 (C.A.D.C.1999), had been recently purchased at Radio Shack. See Thompson, 35 Am.Crim. L.Rev., at 152, and n. 138 (citing Stratton, Scanner Wasn't Supposed to Pick up Call, But it Did, Orlando Sentinel, Jan. 18, 1997, p. A15).

[DFN7] In crafting the exclusionary rule, we did not first require empirical evidence. See Elkins, 364 U.S., at 218, 80 S.Ct. 1437 (“Empirical statistics are not available to show that the inhabitants of states which follow the exclusionary rule suffer less from lawless searches and seizures than do those of states which admit evidence unlawfully obtained”). When it comes to this Court's awesome power to strike down an Act of Congress as unconstitutional, it should not be “do as we say, not as we do.”

[DFN8] The Court attempts to distinguish Ferber and Osborne on the ground that they involved low-value speech, but this has nothing to do with the reasonableness of the “dry-up-the-market” theory. The Court also posits that Congress here could simply have increased the penalty for intercepting cellular communications. See ante, at 1762. But the Court's back-seat legislative advice does nothing to undermine the reasonableness of Congress' belief that prohibiting only the initial interception would not effectively protect the privacy interests of cellular telephone users.

[DFN9] The Court observes that in many of the cases litigated under § 2511(1), “the person or persons intercepting the communication ha[ve] been known.” Ante, at 1763. Of the 206 cases cited in the appendices, 143 solely involved § 2511(1)(a) claims of wrongful interception—disclosure was not at issue. It is of course unremarkable that intentional interception cases have not been pursued where the identity of the eavesdropper was unknown. Of the 61 disclosure and use cases with published facts brought under §§ 2511(1)(c) and (d), 9 involved an unknown or unproved eavesdropper, 1 involved a lawful pen register, and 5 involved recordings that were not surreptitious. Thus, as relevant, 46 disclosure cases involved known eavesdroppers. Whatever might be gleaned from this figure, the Court is practicing voodoo statistics when it states that it undermines the “dry-up-the-market” theory. See ante, at 1763, n. 17. These cases say absolutely nothing about the interceptions and disclosures that have been deterred.

28 Mass.L.Rptr. 553

Superior Court of Massachusetts,
Bristol County.

Debra RICH
v.
Lesley RICH.

No. BRCV200701538.

July 8, 2011.

Opinion

THOMAS F. McGUIRE, JR., Justice.

The plaintiff, Debra Rich, and the defendant, Lesley Rich, are divorced from one another. Debra Rich alleges that Lesley Rich unlawfully intercepted and disclosed private electronic communications she sent on one of the family computers when the two resided together. The complaint asserts claims under the Massachusetts Wiretap Act, G.L.c. 272, § 99, and the Massachusetts Privacy Act, G.L.c. 214, § 1B.[FN1] The defendant has raised affirmative defenses including the statute of limitations, release of liability and privilege. The action was tried before the court, sitting without a jury.

FINDINGS OF FACT

Based on the credible evidence and inferences drawn from such evidence, the court finds the following facts.

Debra Rich and Lesley Rich were married to one another until they divorced in June 1987. After living apart for two years, the parties again resided together in Somerset from 1989 until 2003. Although they remained divorced, they resided together with their sons Jeremy and Justin in a home they both owned.

As of 2000, there were two computers in the home. A desktop computer was kept in a home office. A laptop computer was kept in the family room. All members of the family had access to the laptop. Lesley Rich established an account with America On Line for email and instant messaging services. Debra Rich had her own password to use the account. She did not provide the password to anyone. Unknown to her, the account retained all emails sent or received on the computer in a “personal file cabinet.” No password was needed to access the “personal file cabinet.”

In 2002, Lesley Rich purchased a computer program called, “key logger.” That program records all keystrokes typed into a computer. As a result, a person using the program can view all messages sent on the computer on which the program is installed. Lesley Rich wanted to use the program to determine whether employees at work were stealing from the company he managed. However, he also installed the key logger program on the parties' home computers.

Both Lesley Rich and the parties' son, Jeremy, testified at trial that Lesley Rich told all members of the family, including Debra, that he was installing the key logger program on the home computers in order to test it. The court credits that testimony but finds that the information was conveyed in a manner that was not sufficiently clear to alert a reasonable person, not well versed in the operation of computer programs, that every message sent on the computer would be recorded. The court finds that Debra Rich did not understand that every message she sent was saved and available to Lesley Rich and her children.

By 2003, Debra Rich had become secretly involved in an intimate relationship with an individual named Andrew Fisher. She used the laptop computer to exchange emails and instant messages with him. These messages included communications of a sexual nature.

In June of 2003, Lesley Rich discovered these communications through the key logger program and Debra Rich's “personal file cabinet,” which retained her emails. When he read the messages he was shocked and asked Debra Rich what was going on. He specifically asked about the sadomasochistic content of the messages. Debra Rich told him that she was involved with dangerous people and that he should not become involved. At that point, Lesley did not know Andrew Fisher's identity.

That same month, Debra Rich told Lesley Rich that she was going on a trip with a female friend. Lesley Rich begged her not to go. Debra Rich went on the trip. By viewing messages sent by Debra, Lesley was able to determine that Debra actually went to the Cayman Islands with Andrew Fisher.

On her way back from the trip, Debra and Lesley spoke by telephone. Lesley asked Debra if she had fun with Andrew Fisher. Debra became hysterical and asked whether Lesley had arranged to have them followed.

The next morning, Debra asked Lesley how he knew about Andrew Fisher. Lesley informed her that, through use of the key logger program and her “personal file cabinet” he had read her emails, as well as her side of conversations sent by instant messaging. Debra became very upset. She began screaming and demanded that Lesley delete her messages. Lesley deleted the messages from the laptop screen, although they remained stored in the computer. Debra expressed concern for Andrew Fisher. Lesley told her that if she broke off the relationship, he would not tell Andrew's wife, Robin Fisher, about the affair. Debra Rich moved out of the parties' home later that month.

On September 10, 2003, the parties executed a document entitled, “Release and Amended Settlement Agreement.” The agreement amended the marital settlement agreement the parties entered into at the time of their divorce in 1987. Among other provisions, the agreement included the following general release:

Waiver and Release of the Parties. Les and Deb, on behalf of themselves and their partners, officers, directors, shareholders, trustees, beneficiaries, agents, attorneys, employees, parents, subsidiaries, affiliates, divisions, heirs and legal representatives, and the respective successors and assigns of any of the foregoing (collectively, the “Releasors”), hereby irrevocably and unconditionally release and forever discharge each other and their partners, officers, directors, shareholders, trustees, beneficiaries, agents, attorneys, employees, parents, subsidiaries, affiliates, divisions, heirs and legal representatives, and the respective successors and assigns of any of the foregoing (collectively, the “Released Parties”), from any and all claims, demands, debts, liabilities, contracts, obligations, accounts, torts, causes of action or claims for relief of whatever kind or nature, whether known or unknown, whether suspected or unsuspected, which the Releasors, or any of them, may have or which may hereafter be asserted or accrue against Released Parties, or any of them, resulting from or in any way relating to any act or omission done or committed by Released Parties, or any of them, prior to the date hereof (each, a “Claim”), including without limitation any right, claim, demand, action or cause of action under or related to the Divorce Agreement.

Exhibit 15, par. K.

On February 17, 2004, Lesley Rich wrote a letter to Robin Fisher, using the fictitious name “Helen Dworfman.” He also used a false return address. Lesley Rich told Robin Fisher that her husband was engaging in numerous sadomasochistic relationships. Lesley Rich falsely stated that “Dworfman” discovered Andrew Fisher was in contact with “a young woman in our family who is underage, and prone to sexual fantasy.” Lesley Rich informed Robin Fisher that her husband used his computer “almost nightly” in connection with his “sexual escapades.” He claimed to have documentary evidence of this and invited Robin Fisher to contact “Dworfman” through an email account Lesley Rich established. The letter did not refer to Debra Rich or reveal the content of any of her messages.

Lesley Rich also wrote a letter, under the name, “Lorraine Sader,” to the board of directors of Cox Communications, where Andrew Fisher was president, exposing his activities. No evidence was introduced at trial as to the contents of that letter or whether it revealed any information contained in Debra's emails and instant messages.

Lesley Rich also posed as a female named “Sarah” in order to communicate by email with Andrew Fisher about sexual activities. Those communications lasted a period of one to two months in 2004. Lesley Rich was able to contact Andrew Fisher through an email address he obtained using the key logger program on the laptop computer Debra Rich had previously used. No evidence was introduced that “Sarah” revealed any information gathered from Debra's electronic communications with Andrew Fisher.

In 2006, Robin Fisher commenced divorce proceedings against Andrew Fisher in the Georgia Superior Court.

In 2007, Lesley Rich made a telephone call to Robin Fisher to inform her about Andrew Fisher's infidelities. He concluded that she must not have received the “Dworfman” letter because she had not responded to it. No one testified at trial as to the contents of the telephone conversation between Lesley Rich and Robin Fisher. Based on the purpose for the call and the fact that Robin Fisher's attorney deposed Lesley Rich in the divorce case a few weeks after the conversation, the court infers that Lesley Rich told Robin Fisher that he had evidence of Andrew Fisher's infidelity. However, no evidence was presented at trial that Lesley Rich went further and informed Robin Fisher of the contents of Debra Rich's emails and instant messages during that conversation.

Lesley Rich retained an attorney in Georgia who negotiated with Robin Fisher's attorney regarding his deposition in the divorce case.[FN2] The parties negotiated an indemnification agreement under which Lesley Rich promised to appear for a deposition in the divorce case and further agreed to “cooperate with [Robin] Fisher throughout the duration of the Divorce and provide additional information or documentation if requested by [Robin] Fisher subsequent to the Deposition as long as [Lesley] Rich's cooperation and/or [Robin] Fisher's use of such videotape or testimony does not result in a violation of any laws.” Exhibit 10, par. 1. In return, Robin Fisher agreed to indemnify Lesley for damages and attorneys fees incurred as a result of “(a) any testimony [Lesley] Rich provides in connection with the Divorce, and (b) any documents or items that [Lesley] Rich produces in connection with the Divorce.” Exhibit 10, par. 2.

In July 2007, Lesley Rich testified at a deposition in the Georgia divorce case. A subpoena was served on him, through his attorney, who he had authorized to accept service. The subpoena required the production of electronic communications with the Fishers. Lesley Rich produced various items at the deposition in Georgia including the laptop computer used by Debra Rich and records of communications between Debra Rich and Andrew Fisher. Lesley Rich and Robin Fisher executed their indemnity agreement on the day of Lesley Rich's deposition in the Fisher divorce case.

Prior to his deposition, Lesley Rich had not revealed the contents of Debra Rich's emails and instant messages to anyone other than his own attorney. The court infers that either Lesley Rich told Robin Fisher directly, or Lesley Rich's attorney told Robin Fisher's attorney, that Lesley Rich possessed evidence of electronic communications with Andrew Fisher that would prove his infidelity. Otherwise, there would have been no reason for Robin Fisher to depose Lesley Rich in her divorce case.

In December 2007, Debra Rich testified at a deposition in connection with the Fishers' divorce case. Robin Fisher's attorney asked her numerous questions about her activities and communications with Andrew Fisher, including matters she and Andrew Fisher had discussed in private emails and instant messages. One question pertained to her use of a dog collar as a sexual accoutrement. That was something she had discussed with Andrew Fisher in an instant message sent from the laptop computer. She had not discussed that subject with anyone else.

After 2007, Debra Rich found several anonymous “blog” postings on the internet regarding her relationship with Andrew Fisher. These postings included information discussed in her electronic communications with Andrew Fisher. They caused her severe emotional distress and damaged her reputation.

ANALYSIS

The plaintiff has asserted claims under the Massachusetts Wiretap Act, G.L.c. 272, § 99, and the Massachusetts Privacy Act, G.L.c. 214, § 1B.

1) The Wiretap Act

The Massachusetts Wiretap Act prohibits the interception of oral or wire communications, except pursuant to a duly issued warrant or in other limited circumstances. The Act provides in part:

Any aggrieved person whose oral or wire communications were intercepted, disclosed or used except as permitted or authorized by this section or whose personal or property interests or privacy were violated by means of an interception except as permitted or authorized by this section shall have a civil cause of action against any person who so intercepts, discloses or uses such communications or who so violates his personal, property or privacy interest ...

G.L.c. 272, § 99Q.

Lesley Rich contends that the Wiretap Act does not apply here because emails and instant messages do not qualify as “wire communications.” A “wire communication” is defined by the Act to mean:

[A]ny communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.

G.L.c. 272, § 99B(1).

Although this statute was enacted before email and instant messaging became popular, the language used is sufficiently broad to include those new technologies. “[T]he statutory language itself is the principal source of insight into the legislative purpose.” Commonwealth v. Smith, 431 Mass. 417, 421 (2000). ROPT v. Katin, 431 Mass. 601, 603 (2000) (“In interpreting statutes we use the plain language of the statute where the language is unambiguous”).

Lesley argues that the Massachusetts Wiretap Act should be construed to exclude electronic communications. He points out that the Massachusetts Act was rewritten in 1968 to incorporate the pertinent parts of the Federal Wiretap Act, 18 U.S.C.A. § 2510, et seq., including the definition of “wire communication.” Massachusetts courts “construe the Massachusetts statute in accordance with the construction given the cognate Federal statute by the Federal courts.” O'Sullivan v. NYNEX Corp., 426 Mass. 261, 264 n. 5 (1997). He also points out that the federal act was amended by the Electronic Communications Privacy Act of 1986, Pub.L., 99–508, § 101, to cover the separate category of “electronic communication.” That term encompasses emails. United States v. Councilman, 418 F.3d 67 (2005). He concludes that prior to the 1986 amendment, the federal act did not include electronic communications and, therefore, the Massachusetts Act, which was never amended to explicitly include “electronic communication[s],” should be construed to exclude them.

That argument is not persuasive. The 1986 amendment to the federal act did not simply add a new category of “electronic communication[s]” to the Federal Wiretap Act. It also restricted the definition of “wire communication[s]” to “aural transfer[s],” which are further defined as “transfer[s] containing the human voice at any point between and including the point of origin and the point of reception.” 18 U.S.C.A. § 2510(1) and (18). Thus, prior to the 1986 amendment, the federal definition of “wire communication” was broad enough to include non-aural communications, such as email.

Lesley also argues that the evidence does not warrant a finding that he “intercept[ed]” Debra's messages with an “intercepting device.” To “intercept” a communication under the Massachusetts Act “means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication ...” G.L.c. 272, § 99B(4).

Lesley relies on federal cases that have construed the term “intercept” in the federal act narrowly to include only electronic messages while they are in transit and to exclude those messages while they are in “storage.” See, In Re Pharmatrak, Inc., 329 F.3d 9, 21–22 (1st Cir.2003) (describing debate about whether interception requires acquisition of message contemporaneously with transmission). As in Pharmatrak, however, Lesley's acquisition of Debra's messages would constitute an interception even under the narrower definition. The key logger program Lesley installed recorded the messages as Debra typed them. Compare, Bailey v. Bailey, No. 07–11672, p. 8 (E.D.Mich. Feb. 6, 2008), relied on by Lesley, in which a key logger program was used only “to learn passwords, which were used to access and copy Plaintiff's email and messages.” Debra's composition of the message was the first step in her communication. Thus, Lesley “intercept[ed” her messages within the meaning of the state wiretap statute.[FN3]

Lesley also contends that the key logger program is not an “intercepting device.” An “intercepting device” is “any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication” with certain limited exceptions. G.L.c. 272, § 99B(3). The key logger program is an “intercepting device” (at least when surreptitiously installed on a computer) because it “is capable of ... recording a wire ... communication.” Id.

Finally, the term “contents” of a communication is defined broadly to mean “any information concerning the identity of the parties to such communication or the existence, contents, substance, purport, or meaning of that communication.” G.L.c. 272, § 99B(5). Lesley clearly obtained the “contents” of Debra's communications.

2) The Privacy Act

The Massachusetts Privacy Act provides:

A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.

G.L.c. 214, § 1B.

“To sustain a claim for invasion of privacy, the invasion must be both unreasonable and substantial or serious ... The plaintiff must show that there was a ‘gathering and dissemination of information which [she contends] was private.’ “ Nelson v. Salem State College, 446 Mass. 525, 536 (2006) (citations omitted). “The statute, essentially, proscribes ‘disclosure of facts about an individual that are of a highly personal or intimate nature when there exists no legitimate countervailing interest.’" Ayash v. Dana–Farber Cancer Institute, 443 Mass. 367, 383 (2005), quoting Bratt v. International Business Mach. Corp., 392 Mass. 508, 518 (1984).

3) Lesley Rich's Acquisition of Information

Insofar as Debra Rich's claims are based on Lesley Rich's acquisition of the contents of her emails and instant messages, they are barred by the statute of limitations.

A claim for invasion of privacy is governed by the general statute of limitations for torts. Flynn v. Associated Press, 401 Mass. 776, 782 (1988). Finney v. MADICO, Inc., 42 Mass.App.Ct. 46, 52 (1997). That statute requires an action to “be commenced only within three years next after the cause of action accrues.” G.L.c. 260, § 2A.

The Wiretap Act, G.L.c. 272, § 99, does not contain a limitations period. That does not mean that no limitations period applies. In such cases, the court looks “to the essential nature of the right to determine which statute of limitations should be applied.” Nantucket v. Beinecke, 379 Mass. 345, 347 (1979). The restrictions in the Wiretap Act are “designed to ensure that unjustified and overly broad intrusions on rights of privacy are avoided.” Commonwealth v. Vitello, 367 Mass. 224, 231 (1975). Therefore, the same three-year statute of limitations that applies to other claims for invasion of privacy should apply to claims under the Wiretap Act.

Debra Rich knew that Lesley Rich had obtained the contents of her emails and instant messages in June of 2003. She did not file this action until October 26, 2007, which was well over four years later. Thus, any claim under either the Privacy Act or the Wiretap Act for the acquisition of those messages is time-barred.

Even if those claims were not barred by the statute of limitations, they would be barred by the release of liability Debra signed in September 1993. In that document, Debra “irrevocably and unconditionally release[d] and forever discharge[d]” all claims against Lesley “resulting from or in any way relating to any act or omission done or committed” by Lesley prior to September 10, 1993. The fact that the release also refers specifically to claims under the parties' prior divorce agreement does not limit the scope of the release. “[A] release may be prompted by the settlement of a specific dispute or resolution of a specific issue, but broad wording in the release operates to settle all other, unrelated matters, even if they were not specifically in the parties' minds at the time the release was executed.” Eck v. Godbout, 444 Mass. 724, 728 (2005).

Debra contends that the release is unenforceable. The burden of proving that the release was invalid was on her. Costello v. Hayes, 249 Mass. 349, 353 (1924). She has not carried that burden. There was no evidence of coercion, fraud, or incapacity.

Debra cites no authority for her argument that the agreement is unenforceable because it was not approved by the Probate Court. It is true that “a separation agreement is a judicially sanctioned contract' that is valid and enforceable only if and as approved by the judge.” Kropf v. Kropf, 439 Mass. 97, 104 (2005), quoting Bell v. Bell, 393 Mass. 20, 26 (1984) (Abrams, J., dissenting). However, the court is not aware of any reason (and Debra has not offered any) why two divorced individuals may not agree to modify their rights by agreement, especially where the modification is based on developments that have occurred since the divorce and there is no claim that the new agreement is unfair.

Debra also contends that the release is unenforceable because Lesley breached the parties' amended settlement agreement by failing to establish a trust, which is referred to in paragraph F of the document. However, paragraph F provides that Lesley give a promissory note that “shall be paid into a trust fund, which shall be established at the time of any such payment ...” Exhibit 15, par. F. The document does not say who is to establish the trust. Since the beneficiaries of the trust are both Lesley and Debra, either or both of them could establish the trust. In any case, the agreement provides that the trust shall be established when the promissory note is paid.[FN4] Under paragraph F, the promissory note is not due until either the house in Somerset is sold “to an unrelated third party” or at Lesley's death, whichever occurs earlier. Since neither of those things has occurred, Lesley could not have breached the agreement by failing to establish the trust.

4) Lesley Rich's Disclosure of Information

Lesley Rich disseminated information obtained from Debra Rich's emails and instant messages in two ways.[FN5] First, he conveyed to Robin Fisher or her attorney the fact that evidence regarding Andrew Fisher's activities existed in the form of electronic messages in his possession. It is unclear whether this was done directly in his telephone conversation with Robin Fisher or indirectly through counsel. However it may have been accomplished, the fact that the information was conveyed is evidenced by the subsequent negotiations regarding his deposition and the indemnity agreement, as well as the items requested in the subpoena issued to him for that deposition. Second, Lesley Rich disclosed the contents of the emails and instant messages themselves at his deposition.

Debra Rich's claims for both of these disclosures is barred by the so-called “litigation privilege.” That doctrine provides a defendant with immunity from suit.[FN6] The litigation privilege has been described as follows:

Written or oral communications made by a party, witness, or attorney prior to, in the institution of, or during and as part of a judicial proceeding involving said party, witness, or attorney are absolutely privileged even if uttered maliciously or in bad faith.

Mass. G. Evid., Art. V, Intro. Note § (h)(1) (2010), citing Correllas v. Viveiros, 410 Mass. 314, 319–21 (1991), and Sriberg v. Raymond, 370 Mass. 105, 108 (1976).

“The reason for the privilege is that it is more important that witnesses be free from the fear of civil liability for what they say than that a person who has been defamed by their testimony have a remedy.” Aborn v. Lipson, 357 Mass. 71, 72 (1970). Fisher v. Lint, 69 Mass.App.Ct. 360, 366 (2007).

This privilege most often arises in cases of defamation. However, it applies in other contexts as well. “A privilege which protected an individual from liability for defamation would be of little value if the individual were subject to liability under a different theory of tort.” Correllas, supra at 324 (applying privilege in claim for intentional infliction of emotional distress). The Restatement of Torts, Second, states the general rule that the absolute privilege applicable in cases of defamation applies “to the publication of any matter that is an invasion of privacy.” Restatement (Second) Torts, § 652F. See also, Alperin, Summary of Basic Law, § 17.35 (“Actions for invasion of privacy are subject to the defense of privilege”). Thus, the absolute privilege applies to Debra's claims under both the Privacy Act and the Wiretap Act.

Robin Fisher filed her divorce action in 2006. By the time Lesley Rich contacted her about the electronic correspondence between her husband and Debra Rich, the action was pending. Further, Lesley Rich's disclosures were pertinent to the divorce proceeding. Lesley Rich is therefore immune from any liability based on these disclosures.

ORDER

Judgment shall enter in favor of the defendant, Lesley Rich, and against the plaintiff, Debra Rich, on Counts I, II and III of the complaint.

Footnotes

[FN1] Count I of the complaint seeks damages under Subsection C of the Wiretap Act, which provides for criminal penalties. At best, it is duplicative of Count II, winch seeks damages under Subsection Q of that Act. Count III alleges a violation of G.L.c. 214, § 1B. Counts IV through VIII of the complaint, alleging violations of Rhode Island law, were previously dismissed by the court (Moses, J.) on Lesley Rich's motion for summary judgment. (Paper # 34.) The final count of the complaint, Count IX, seeks injunctive relief as a remedy for violation of the Massachusetts Wiretap Act and Rhode Island law. At trial, the parties agreed to bifurcate the issues of punitive damages and attorneys fees.

[FN2] Lesley Rich is a member of the Massachusetts and Rhode Island bars.

[FN3] Lesley's accessing Debra's emails in her “personal file cabinet” was not contemporaneous with transmission and therefore would not constitute interception if the state act were construed to include a “real time” requirement. However, it does not appear that Lesley gained any additional information from the stored emails that he did not obtain through use of the key logger.

[FN4] The promissory note, which is signed by Lesley and attached to the amendment, provides that the proceeds of the note “shall be paid into a trust fund, which shall be established at the time of any such payment.” Notices to the payee are to be given to Debra. Exhibit 15, Attached Note.

[FN5] Lesley Rich, under the alias, “Helen Dworfman,” informed Robin Fisher of Andrew's infidelity in a letter of February 17, 2004. Using the alias, “Lorraine Sader,” he contacted the board of directors of Andrew Fisher's employer about his activities. He also used the alias, “Sarah,” to communicate with Andrew Fisher himself. There was no evidence that Lesley disclosed the contents of the emails or instant messages in any of those communications. Debra Rich makes no argument that Lesley “used” the information obtained from those electronic messages to make these contacts in violation of the Wiretap Act. G.L.c. 272, § 99Q.

[FN6] Debra Rich does not contend the law of Georgia differs from that of Massachusetts. There is therefore no need to engage in a conflict of laws analysis. Mass.R.Civ.P. 44.1.

28 Mass.L.Rptr. 553

Superior Court of Massachusetts,
Bristol County.

Debra RICH
v.
Lesley RICH.

No. BRCV200701538.

July 8, 2011.

Opinion

THOMAS F. McGUIRE, JR., Justice.

The plaintiff, Debra Rich, and the defendant, Lesley Rich, are divorced from one another. Debra Rich alleges that Lesley Rich unlawfully intercepted and disclosed private electronic communications she sent on one of the family computers when the two resided together. The complaint asserts claims under the Massachusetts Wiretap Act, G.L.c. 272, § 99, and the Massachusetts Privacy Act, G.L.c. 214, § 1B.[FN1] The defendant has raised affirmative defenses including the statute of limitations, release of liability and privilege. The action was tried before the court, sitting without a jury.

FINDINGS OF FACT

Based on the credible evidence and inferences drawn from such evidence, the court finds the following facts.

Debra Rich and Lesley Rich were married to one another until they divorced in June 1987. After living apart for two years, the parties again resided together in Somerset from 1989 until 2003. Although they remained divorced, they resided together with their sons Jeremy and Justin in a home they both owned.

As of 2000, there were two computers in the home. A desktop computer was kept in a home office. A laptop computer was kept in the family room. All members of the family had access to the laptop. Lesley Rich established an account with America On Line for email and instant messaging services. Debra Rich had her own password to use the account. She did not provide the password to anyone. Unknown to her, the account retained all emails sent or received on the computer in a “personal file cabinet.” No password was needed to access the “personal file cabinet.”

In 2002, Lesley Rich purchased a computer program called, “key logger.” That program records all keystrokes typed into a computer. As a result, a person using the program can view all messages sent on the computer on which the program is installed. Lesley Rich wanted to use the program to determine whether employees at work were stealing from the company he managed. However, he also installed the key logger program on the parties' home computers.

Both Lesley Rich and the parties' son, Jeremy, testified at trial that Lesley Rich told all members of the family, including Debra, that he was installing the key logger program on the home computers in order to test it. The court credits that testimony but finds that the information was conveyed in a manner that was not sufficiently clear to alert a reasonable person, not well versed in the operation of computer programs, that every message sent on the computer would be recorded. The court finds that Debra Rich did not understand that every message she sent was saved and available to Lesley Rich and her children.

By 2003, Debra Rich had become secretly involved in an intimate relationship with an individual named Andrew Fisher. She used the laptop computer to exchange emails and instant messages with him. These messages included communications of a sexual nature.

In June of 2003, Lesley Rich discovered these communications through the key logger program and Debra Rich's “personal file cabinet,” which retained her emails. When he read the messages he was shocked and asked Debra Rich what was going on. He specifically asked about the sadomasochistic content of the messages. Debra Rich told him that she was involved with dangerous people and that he should not become involved. At that point, Lesley did not know Andrew Fisher's identity.

That same month, Debra Rich told Lesley Rich that she was going on a trip with a female friend. Lesley Rich begged her not to go. Debra Rich went on the trip. By viewing messages sent by Debra, Lesley was able to determine that Debra actually went to the Cayman Islands with Andrew Fisher.

On her way back from the trip, Debra and Lesley spoke by telephone. Lesley asked Debra if she had fun with Andrew Fisher. Debra became hysterical and asked whether Lesley had arranged to have them followed.

The next morning, Debra asked Lesley how he knew about Andrew Fisher. Lesley informed her that, through use of the key logger program and her “personal file cabinet” he had read her emails, as well as her side of conversations sent by instant messaging. Debra became very upset. She began screaming and demanded that Lesley delete her messages. Lesley deleted the messages from the laptop screen, although they remained stored in the computer. Debra expressed concern for Andrew Fisher. Lesley told her that if she broke off the relationship, he would not tell Andrew's wife, Robin Fisher, about the affair. Debra Rich moved out of the parties' home later that month.

On September 10, 2003, the parties executed a document entitled, “Release and Amended Settlement Agreement.” The agreement amended the marital settlement agreement the parties entered into at the time of their divorce in 1987. Among other provisions, the agreement included the following general release:

Waiver and Release of the Parties. Les and Deb, on behalf of themselves and their partners, officers, directors, shareholders, trustees, beneficiaries, agents, attorneys, employees, parents, subsidiaries, affiliates, divisions, heirs and legal representatives, and the respective successors and assigns of any of the foregoing (collectively, the “Releasors”), hereby irrevocably and unconditionally release and forever discharge each other and their partners, officers, directors, shareholders, trustees, beneficiaries, agents, attorneys, employees, parents, subsidiaries, affiliates, divisions, heirs and legal representatives, and the respective successors and assigns of any of the foregoing (collectively, the “Released Parties”), from any and all claims, demands, debts, liabilities, contracts, obligations, accounts, torts, causes of action or claims for relief of whatever kind or nature, whether known or unknown, whether suspected or unsuspected, which the Releasors, or any of them, may have or which may hereafter be asserted or accrue against Released Parties, or any of them, resulting from or in any way relating to any act or omission done or committed by Released Parties, or any of them, prior to the date hereof (each, a “Claim”), including without limitation any right, claim, demand, action or cause of action under or related to the Divorce Agreement.

Exhibit 15, par. K.

On February 17, 2004, Lesley Rich wrote a letter to Robin Fisher, using the fictitious name “Helen Dworfman.” He also used a false return address. Lesley Rich told Robin Fisher that her husband was engaging in numerous sadomasochistic relationships. Lesley Rich falsely stated that “Dworfman” discovered Andrew Fisher was in contact with “a young woman in our family who is underage, and prone to sexual fantasy.” Lesley Rich informed Robin Fisher that her husband used his computer “almost nightly” in connection with his “sexual escapades.” He claimed to have documentary evidence of this and invited Robin Fisher to contact “Dworfman” through an email account Lesley Rich established. The letter did not refer to Debra Rich or reveal the content of any of her messages.

Lesley Rich also wrote a letter, under the name, “Lorraine Sader,” to the board of directors of Cox Communications, where Andrew Fisher was president, exposing his activities. No evidence was introduced at trial as to the contents of that letter or whether it revealed any information contained in Debra's emails and instant messages.

Lesley Rich also posed as a female named “Sarah” in order to communicate by email with Andrew Fisher about sexual activities. Those communications lasted a period of one to two months in 2004. Lesley Rich was able to contact Andrew Fisher through an email address he obtained using the key logger program on the laptop computer Debra Rich had previously used. No evidence was introduced that “Sarah” revealed any information gathered from Debra's electronic communications with Andrew Fisher.

In 2006, Robin Fisher commenced divorce proceedings against Andrew Fisher in the Georgia Superior Court.

In 2007, Lesley Rich made a telephone call to Robin Fisher to inform her about Andrew Fisher's infidelities. He concluded that she must not have received the “Dworfman” letter because she had not responded to it. No one testified at trial as to the contents of the telephone conversation between Lesley Rich and Robin Fisher. Based on the purpose for the call and the fact that Robin Fisher's attorney deposed Lesley Rich in the divorce case a few weeks after the conversation, the court infers that Lesley Rich told Robin Fisher that he had evidence of Andrew Fisher's infidelity. However, no evidence was presented at trial that Lesley Rich went further and informed Robin Fisher of the contents of Debra Rich's emails and instant messages during that conversation.

Lesley Rich retained an attorney in Georgia who negotiated with Robin Fisher's attorney regarding his deposition in the divorce case.[FN2] The parties negotiated an indemnification agreement under which Lesley Rich promised to appear for a deposition in the divorce case and further agreed to “cooperate with [Robin] Fisher throughout the duration of the Divorce and provide additional information or documentation if requested by [Robin] Fisher subsequent to the Deposition as long as [Lesley] Rich's cooperation and/or [Robin] Fisher's use of such videotape or testimony does not result in a violation of any laws.” Exhibit 10, par. 1. In return, Robin Fisher agreed to indemnify Lesley for damages and attorneys fees incurred as a result of “(a) any testimony [Lesley] Rich provides in connection with the Divorce, and (b) any documents or items that [Lesley] Rich produces in connection with the Divorce.” Exhibit 10, par. 2.

In July 2007, Lesley Rich testified at a deposition in the Georgia divorce case. A subpoena was served on him, through his attorney, who he had authorized to accept service. The subpoena required the production of electronic communications with the Fishers. Lesley Rich produced various items at the deposition in Georgia including the laptop computer used by Debra Rich and records of communications between Debra Rich and Andrew Fisher. Lesley Rich and Robin Fisher executed their indemnity agreement on the day of Lesley Rich's deposition in the Fisher divorce case.

Prior to his deposition, Lesley Rich had not revealed the contents of Debra Rich's emails and instant messages to anyone other than his own attorney. The court infers that either Lesley Rich told Robin Fisher directly, or Lesley Rich's attorney told Robin Fisher's attorney, that Lesley Rich possessed evidence of electronic communications with Andrew Fisher that would prove his infidelity. Otherwise, there would have been no reason for Robin Fisher to depose Lesley Rich in her divorce case.

In December 2007, Debra Rich testified at a deposition in connection with the Fishers' divorce case. Robin Fisher's attorney asked her numerous questions about her activities and communications with Andrew Fisher, including matters she and Andrew Fisher had discussed in private emails and instant messages. One question pertained to her use of a dog collar as a sexual accoutrement. That was something she had discussed with Andrew Fisher in an instant message sent from the laptop computer. She had not discussed that subject with anyone else.

After 2007, Debra Rich found several anonymous “blog” postings on the internet regarding her relationship with Andrew Fisher. These postings included information discussed in her electronic communications with Andrew Fisher. They caused her severe emotional distress and damaged her reputation.

ANALYSIS

The plaintiff has asserted claims under the Massachusetts Wiretap Act, G.L.c. 272, § 99, and the Massachusetts Privacy Act, G.L.c. 214, § 1B.

1) The Wiretap Act

The Massachusetts Wiretap Act prohibits the interception of oral or wire communications, except pursuant to a duly issued warrant or in other limited circumstances. The Act provides in part:

Any aggrieved person whose oral or wire communications were intercepted, disclosed or used except as permitted or authorized by this section or whose personal or property interests or privacy were violated by means of an interception except as permitted or authorized by this section shall have a civil cause of action against any person who so intercepts, discloses or uses such communications or who so violates his personal, property or privacy interest ...

G.L.c. 272, § 99Q.

Lesley Rich contends that the Wiretap Act does not apply here because emails and instant messages do not qualify as “wire communications.” A “wire communication” is defined by the Act to mean:

[A]ny communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.

G.L.c. 272, § 99B(1).

Although this statute was enacted before email and instant messaging became popular, the language used is sufficiently broad to include those new technologies. “[T]he statutory language itself is the principal source of insight into the legislative purpose.” Commonwealth v. Smith, 431 Mass. 417, 421 (2000). ROPT v. Katin, 431 Mass. 601, 603 (2000) (“In interpreting statutes we use the plain language of the statute where the language is unambiguous”).

Lesley argues that the Massachusetts Wiretap Act should be construed to exclude electronic communications. He points out that the Massachusetts Act was rewritten in 1968 to incorporate the pertinent parts of the Federal Wiretap Act, 18 U.S.C.A. § 2510, et seq., including the definition of “wire communication.” Massachusetts courts “construe the Massachusetts statute in accordance with the construction given the cognate Federal statute by the Federal courts.” O'Sullivan v. NYNEX Corp., 426 Mass. 261, 264 n. 5 (1997). He also points out that the federal act was amended by the Electronic Communications Privacy Act of 1986, Pub.L., 99–508, § 101, to cover the separate category of “electronic communication.” That term encompasses emails. United States v. Councilman, 418 F.3d 67 (2005). He concludes that prior to the 1986 amendment, the federal act did not include electronic communications and, therefore, the Massachusetts Act, which was never amended to explicitly include “electronic communication[s],” should be construed to exclude them.

That argument is not persuasive. The 1986 amendment to the federal act did not simply add a new category of “electronic communication[s]” to the Federal Wiretap Act. It also restricted the definition of “wire communication[s]” to “aural transfer[s],” which are further defined as “transfer[s] containing the human voice at any point between and including the point of origin and the point of reception.” 18 U.S.C.A. § 2510(1) and (18). Thus, prior to the 1986 amendment, the federal definition of “wire communication” was broad enough to include non-aural communications, such as email.

Lesley also argues that the evidence does not warrant a finding that he “intercept[ed]” Debra's messages with an “intercepting device.” To “intercept” a communication under the Massachusetts Act “means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication ...” G.L.c. 272, § 99B(4).

Lesley relies on federal cases that have construed the term “intercept” in the federal act narrowly to include only electronic messages while they are in transit and to exclude those messages while they are in “storage.” See, In Re Pharmatrak, Inc., 329 F.3d 9, 21–22 (1st Cir.2003) (describing debate about whether interception requires acquisition of message contemporaneously with transmission). As in Pharmatrak, however, Lesley's acquisition of Debra's messages would constitute an interception even under the narrower definition. The key logger program Lesley installed recorded the messages as Debra typed them. Compare, Bailey v. Bailey, No. 07–11672, p. 8 (E.D.Mich. Feb. 6, 2008), relied on by Lesley, in which a key logger program was used only “to learn passwords, which were used to access and copy Plaintiff's email and messages.” Debra's composition of the message was the first step in her communication. Thus, Lesley “intercept[ed” her messages within the meaning of the state wiretap statute.[FN3]

Lesley also contends that the key logger program is not an “intercepting device.” An “intercepting device” is “any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication” with certain limited exceptions. G.L.c. 272, § 99B(3). The key logger program is an “intercepting device” (at least when surreptitiously installed on a computer) because it “is capable of ... recording a wire ... communication.” Id.

Finally, the term “contents” of a communication is defined broadly to mean “any information concerning the identity of the parties to such communication or the existence, contents, substance, purport, or meaning of that communication.” G.L.c. 272, § 99B(5). Lesley clearly obtained the “contents” of Debra's communications.

2) The Privacy Act

The Massachusetts Privacy Act provides:

A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.

G.L.c. 214, § 1B.

“To sustain a claim for invasion of privacy, the invasion must be both unreasonable and substantial or serious ... The plaintiff must show that there was a ‘gathering and dissemination of information which [she contends] was private.’ “ Nelson v. Salem State College, 446 Mass. 525, 536 (2006) (citations omitted). “The statute, essentially, proscribes ‘disclosure of facts about an individual that are of a highly personal or intimate nature when there exists no legitimate countervailing interest.’" Ayash v. Dana–Farber Cancer Institute, 443 Mass. 367, 383 (2005), quoting Bratt v. International Business Mach. Corp., 392 Mass. 508, 518 (1984).

3) Lesley Rich's Acquisition of Information

Insofar as Debra Rich's claims are based on Lesley Rich's acquisition of the contents of her emails and instant messages, they are barred by the statute of limitations.

A claim for invasion of privacy is governed by the general statute of limitations for torts. Flynn v. Associated Press, 401 Mass. 776, 782 (1988). Finney v. MADICO, Inc., 42 Mass.App.Ct. 46, 52 (1997). That statute requires an action to “be commenced only within three years next after the cause of action accrues.” G.L.c. 260, § 2A.

The Wiretap Act, G.L.c. 272, § 99, does not contain a limitations period. That does not mean that no limitations period applies. In such cases, the court looks “to the essential nature of the right to determine which statute of limitations should be applied.” Nantucket v. Beinecke, 379 Mass. 345, 347 (1979). The restrictions in the Wiretap Act are “designed to ensure that unjustified and overly broad intrusions on rights of privacy are avoided.” Commonwealth v. Vitello, 367 Mass. 224, 231 (1975). Therefore, the same three-year statute of limitations that applies to other claims for invasion of privacy should apply to claims under the Wiretap Act.

Debra Rich knew that Lesley Rich had obtained the contents of her emails and instant messages in June of 2003. She did not file this action until October 26, 2007, which was well over four years later. Thus, any claim under either the Privacy Act or the Wiretap Act for the acquisition of those messages is time-barred.

Even if those claims were not barred by the statute of limitations, they would be barred by the release of liability Debra signed in September 1993. In that document, Debra “irrevocably and unconditionally release[d] and forever discharge[d]” all claims against Lesley “resulting from or in any way relating to any act or omission done or committed” by Lesley prior to September 10, 1993. The fact that the release also refers specifically to claims under the parties' prior divorce agreement does not limit the scope of the release. “[A] release may be prompted by the settlement of a specific dispute or resolution of a specific issue, but broad wording in the release operates to settle all other, unrelated matters, even if they were not specifically in the parties' minds at the time the release was executed.” Eck v. Godbout, 444 Mass. 724, 728 (2005).

Debra contends that the release is unenforceable. The burden of proving that the release was invalid was on her. Costello v. Hayes, 249 Mass. 349, 353 (1924). She has not carried that burden. There was no evidence of coercion, fraud, or incapacity.

Debra cites no authority for her argument that the agreement is unenforceable because it was not approved by the Probate Court. It is true that “a separation agreement is a judicially sanctioned contract' that is valid and enforceable only if and as approved by the judge.” Kropf v. Kropf, 439 Mass. 97, 104 (2005), quoting Bell v. Bell, 393 Mass. 20, 26 (1984) (Abrams, J., dissenting). However, the court is not aware of any reason (and Debra has not offered any) why two divorced individuals may not agree to modify their rights by agreement, especially where the modification is based on developments that have occurred since the divorce and there is no claim that the new agreement is unfair.

Debra also contends that the release is unenforceable because Lesley breached the parties' amended settlement agreement by failing to establish a trust, which is referred to in paragraph F of the document. However, paragraph F provides that Lesley give a promissory note that “shall be paid into a trust fund, which shall be established at the time of any such payment ...” Exhibit 15, par. F. The document does not say who is to establish the trust. Since the beneficiaries of the trust are both Lesley and Debra, either or both of them could establish the trust. In any case, the agreement provides that the trust shall be established when the promissory note is paid.[FN4] Under paragraph F, the promissory note is not due until either the house in Somerset is sold “to an unrelated third party” or at Lesley's death, whichever occurs earlier. Since neither of those things has occurred, Lesley could not have breached the agreement by failing to establish the trust.

4) Lesley Rich's Disclosure of Information

Lesley Rich disseminated information obtained from Debra Rich's emails and instant messages in two ways.[FN5] First, he conveyed to Robin Fisher or her attorney the fact that evidence regarding Andrew Fisher's activities existed in the form of electronic messages in his possession. It is unclear whether this was done directly in his telephone conversation with Robin Fisher or indirectly through counsel. However it may have been accomplished, the fact that the information was conveyed is evidenced by the subsequent negotiations regarding his deposition and the indemnity agreement, as well as the items requested in the subpoena issued to him for that deposition. Second, Lesley Rich disclosed the contents of the emails and instant messages themselves at his deposition.

Debra Rich's claims for both of these disclosures is barred by the so-called “litigation privilege.” That doctrine provides a defendant with immunity from suit.[FN6] The litigation privilege has been described as follows:

Written or oral communications made by a party, witness, or attorney prior to, in the institution of, or during and as part of a judicial proceeding involving said party, witness, or attorney are absolutely privileged even if uttered maliciously or in bad faith.

Mass. G. Evid., Art. V, Intro. Note § (h)(1) (2010), citing Correllas v. Viveiros, 410 Mass. 314, 319–21 (1991), and Sriberg v. Raymond, 370 Mass. 105, 108 (1976).

“The reason for the privilege is that it is more important that witnesses be free from the fear of civil liability for what they say than that a person who has been defamed by their testimony have a remedy.” Aborn v. Lipson, 357 Mass. 71, 72 (1970). Fisher v. Lint, 69 Mass.App.Ct. 360, 366 (2007).

This privilege most often arises in cases of defamation. However, it applies in other contexts as well. “A privilege which protected an individual from liability for defamation would be of little value if the individual were subject to liability under a different theory of tort.” Correllas, supra at 324 (applying privilege in claim for intentional infliction of emotional distress). The Restatement of Torts, Second, states the general rule that the absolute privilege applicable in cases of defamation applies “to the publication of any matter that is an invasion of privacy.” Restatement (Second) Torts, § 652F. See also, Alperin, Summary of Basic Law, § 17.35 (“Actions for invasion of privacy are subject to the defense of privilege”). Thus, the absolute privilege applies to Debra's claims under both the Privacy Act and the Wiretap Act.

Robin Fisher filed her divorce action in 2006. By the time Lesley Rich contacted her about the electronic correspondence between her husband and Debra Rich, the action was pending. Further, Lesley Rich's disclosures were pertinent to the divorce proceeding. Lesley Rich is therefore immune from any liability based on these disclosures.

ORDER

Judgment shall enter in favor of the defendant, Lesley Rich, and against the plaintiff, Debra Rich, on Counts I, II and III of the complaint.

Footnotes

[FN1] Count I of the complaint seeks damages under Subsection C of the Wiretap Act, which provides for criminal penalties. At best, it is duplicative of Count II, winch seeks damages under Subsection Q of that Act. Count III alleges a violation of G.L.c. 214, § 1B. Counts IV through VIII of the complaint, alleging violations of Rhode Island law, were previously dismissed by the court (Moses, J.) on Lesley Rich's motion for summary judgment. (Paper # 34.) The final count of the complaint, Count IX, seeks injunctive relief as a remedy for violation of the Massachusetts Wiretap Act and Rhode Island law. At trial, the parties agreed to bifurcate the issues of punitive damages and attorneys fees.

[FN2] Lesley Rich is a member of the Massachusetts and Rhode Island bars.

[FN3] Lesley's accessing Debra's emails in her “personal file cabinet” was not contemporaneous with transmission and therefore would not constitute interception if the state act were construed to include a “real time” requirement. However, it does not appear that Lesley gained any additional information from the stored emails that he did not obtain through use of the key logger.

[FN4] The promissory note, which is signed by Lesley and attached to the amendment, provides that the proceeds of the note “shall be paid into a trust fund, which shall be established at the time of any such payment.” Notices to the payee are to be given to Debra. Exhibit 15, Attached Note.

[FN5] Lesley Rich, under the alias, “Helen Dworfman,” informed Robin Fisher of Andrew's infidelity in a letter of February 17, 2004. Using the alias, “Lorraine Sader,” he contacted the board of directors of Andrew Fisher's employer about his activities. He also used the alias, “Sarah,” to communicate with Andrew Fisher himself. There was no evidence that Lesley disclosed the contents of the emails or instant messages in any of those communications. Debra Rich makes no argument that Lesley “used” the information obtained from those electronic messages to make these contacts in violation of the Wiretap Act. G.L.c. 272, § 99Q.

[FN6] Debra Rich does not contend the law of Georgia differs from that of Massachusetts. There is therefore no need to engage in a conflict of laws analysis. Mass.R.Civ.P. 44.1.