An Appeal With No Appeal for The Media   

Should third parties be liable for revealing the contents of illegally recorded conversations?

Is it ethical to use intercepted phone messages as the basis for a new story? In June, the Cincinnati Enquirer renounced its articles about Chiquita Brands International, citing its belief that its reporter had relied on voice mail messages obtained illegally. But exactly one month later, a judge in Washington, D.C., threw out a suit against a congressman who received an illegally recorded tape of a phone call and passed it on to the press.

In December 1996, several members of Congress, including House Speaker Newt Gingrich (R-Ga.) and Rep. John Boehner (R-Ohio), participated in an interstate conference call to discuss a House ethics probe of Gingrich. Boehner used a cellular phone.

Florida Democratic activists Alice and John Martin, who were monitoring a police scanner in their car, intercepted and taped Boehner's transmission. They delivered a copy of the tape, with a letter explaining how they had gotten it, to Rep. James A. McDermott (D-Wash.), at that time the ranking Democrat on the House Ethics Committee.

McDermott's staff allegedly provided copies of the tape to the New York Times, Atlanta Journal-Constitution and Roll Call. The Times published a story based on the tape on January 10, 1997.

The Justice Department claimed the Martins violated the federal wiretapping statute, which prohibits interception of cellular phone calls. Both pleaded guilty in April 1997; each was fined $500.

In March 1998, Boehner sued McDermott, claiming he violated both the federal wiretap law and a similar Florida statute when he disclosed Boehner's illegally intercepted phone communication. Boehner argued that McDermott knew--or should have known--that the Martins had broken the law when they made their recording, and that McDermott could not legally disseminate it.

McDermott countered that the First Amendment prohibits the government from restraining or punishing individuals who disclose truthful information about matters of public importance, as long as the material is obtained lawfully. Because he had neither intercepted the telephone call nor asked anyone to do so, he had not broken the law, McDermott said.

U.S. District Court Judge Thomas F. Hogan reluctantly agreed that, although the statutes prohibit unauthorized recording and disclosure of a conversation by the intercepting party, they do not bar an innocent third party from receiving and publishing it. McDermott successfully located and exploited the loopholes in the statutes, Hogan wrote.

He noted that McDermott had not participated in the "unscrupulous, underhanded" theft, nor was he "aware of the tape's existence until the Martins dropped it on his doorstep." Existing case law, Hogan wrote, "suggests that information, even if initially garnered through illegal means, is lawfully obtained by anyone who did not himself break the law to obtain it."

In mid-August, Boehner announced he would appeal the decision in "Tapegate" to the U.S. Court of Appeals. His press release included letters from House colleagues, including Judiciary Committee Chairman Henry Hyde (R-Ill.), supporting his decision.

One letter was from Rep. Michael Oxley (R-Ohio), a former FBI agent with self-described "personal experience involving wiretap issues." Oxley argued that both the interception of the call by the Martins and the disclosure of it by McDermott were crimes. He cited the convictions of several aides of U.S. Sen. Charles Robb (D-Va.) for intercepting and leaking a cell phone conversation of Robb's political rival, then-Lt. Gov. L. Douglas Wilder. Portions were published in 1991 in the Washington Post.

It will be up to the appeals court to decide whose interpretation of the law is correct. For the time being, Hogan's ruling states that a third party, such as a journalist, who neither intercepts a phone conversation nor conspires to do so, commits no crime when he receives and disseminates the contents, especially when the conversation involves a matter of public interest.

But don't be surprised if Congress revisits the wiretap law next year. In his letter to Boehner, Hyde wrote that Hogan's interpretation "certainly was not the intent of the Congress in enacting the statute."

News organizations, such as the Washington Post and the New York Times, have long taken the position that they have the right to publish the contents of a conversation intercepted by someone else as long as it is newsworthy. But if the appeals court reverses Hogan's ruling, or if Congress amends the statute, the news media could become vulnerable to criminal charges for doing just that.