Cell phone snooping: why electronic eavesdropping goes unpunished.

• Author: Thompson, Kimberly R.

1. Introduction II. The Technology III. Federal Statutory Scheme and its History

   1. Federal Communications Act of 1934

   2. Title III of the Omnibus Crime Control and Safe Streets Act of

      1968

   3. Electronic Communication Privacy Act of 1986

   4. Other Legislation IV. The Protection of Cellular Transmissions in Practice

   1. The Community of Scanning Enthusiasts

   2. Few Prosecutions for Infringing Upon the Privacy of Cellular

      Transmissions V. Why Virtually No oNe Is Being Prosecuted For Infringing

      Upon Cellular Privacy

   1. Detection of Eavesdroppers Impossible

   2. Interception Must Be Intentional

   3. It Has Been Asserted that the Wiretap Act Does Not Cover

      Cellular Communications

   4. Cellular Transmissions are Seen by Many as not Exhibiting a

      Reasonable Expectation of Privacy VI. CONCLUSION

1. INTRODUCTION

   The story of John and Alice Martin has become a familiar one. On December 2 1, 1996, the Floridians were driving in their car, listening to an allegedly unmodified police scanner that John Martin had purchased at Radio Shack in September.(1) Suddenly, the couple "recognized some voices" that the scanner had intercepted, and they realized that the subject of the conversation they were listening to concerned an investigation of House Speaker Newt Gingrich then being conducted by the House Ethics Committee.(2) Accordingly, the Martins recorded the conversation using a tape recorder they had with them in the car.(3) They took the tape to the Florida office of their Congressional representative. Democrat Karen L. Thurman, who ultimately returned it to the couple during their visit to Washington a few weeks later.(4) Representative Thurman, who apparently had not listened to the tape, told the Martins to deliver it to fellow Representative Jim McDermott, the ranking Democrat on the House Ethics Committee at the time, and directed them in preparing a letter addressed to McDermott which stated. "we also understand that we will be granted immunity.(5) The couple then presented the letter and tape to McDermott.(6) Within the next few days, the text of the conversation was printed in the New York Times, Roll Call, and the Atlanta Journal-Constitution.(7) Following a press conference at which the Martins stated that they had given the tape to McDermott, the Representative presented it to the Ethics Committee.(8) Republicans believe that McDermott was responsible for passing the tape along to the media.(9)

   The recorded conversation turned out to be a cellular conference call involving several House Republicans, including Speaker Gingrich, House Majority Leader Dick Armey of Texas, and Representatives John Boehner of Ohio and Bill Paxton of New York.(10) The conversation, conducted in anticipation of Gingrich's announcement admitting that he had violated the rules of the House, essentially plotted damage control.(11) Such plotting apparently violated an agreement Gingrich had made with the Ethics Committee "not to use his office and his allies to orchestrate a Republican counterattack" in response to the Committee's investigation.(12)

   The Ethics Committee did not use the tape as evidence against the Speaker. Rather, the recording was immediately turned over to the Department of Justice upon the insistence of House Ethics Committee Chairwoman Nancy Johnson.(13) As soon as the Department received the tape, the FBI initiated a criminal investigation.(14) Pursuant to this investigation, the FBI interviewed the major players in the case(15) and examined the Martins' scanner in order to determine whether it had been modified after purchase.(16)

   Florida State Attorney Jerry Blair stated in January that he is unlikely to pursue criminal charges against the Martins.(17) The Department of Justice, however, was not as quick to announce whether its investigation into this matter would result in the prosecution of the Martins or anyone on Capital Hill suspected of disclosing the contents of the tape. Because the Department had yet to comment publicly on its investigation, Representative John Boelmer sent a letter to U.S. Attorney General Janet Reno on March 21, 1997, in which he asked for information about the investigation and requested a status report.(18)

   On April 23, 1997, federal prosecutors filed one-count criminal informations against each of the Martins in the United States District Court in Jacksonville, Florida.(19) The couple immediately agreed to plead guilty to the charge of intercepting a cellular call, and in addition, they promised to assist the FBI and Department of Justice in their pending investigation of the remaining individuals involved in the matter.(20) Federal prosecutors involved in the case stated that they had no evidence that the Martins' "interception was [conducted] for a tortious or illegal purpose" or for pecuniary gain.(21) Ultimately, the Martins were each fined $500.(22)

   An element in the plea bargaining agreement between the government and the Martins stated that no further federal charges will be brought against the couple,(23) yet the Department of Justice made it clear that its investigation of this matter would continue.(24) Indeed, a federal grand jury was empaneled in the U.S. District Court for the District of Columbia for the purpose of investigating how the tape was leaked to the press. That federal grand jury has issued subpeonas, to James Cole, the outside counsel conducting the ethics investigation of Speaker Gingrich, and to two members of Representative McDermott's congressional staff.(25) Because the grand jury appears to be moving Slowly,(26) Republicans continue to press the Department of Justice.(27)

   When reporting the events surrounding the creation of the Gingrich tape, the press made constant reference to a federal statute prohibiting the interception of a cellular call.(28) These references spoke of Title III of the Omnibus Crime Control Act of 1968,(29) which, as amended by the Electronic Communications Privacy Act of 1986,(30) makes it a crime to intercept, use, or disclose the contents of a cellular transmission.(31) Despite the Wiretap Act's provision for criminal penalties and the fact that numerous radio scanning enthusiasts have admitted to intercepting cellular communications on a regular basis.(32) very few individuals have been prosecuted under the Act.(33) This Note explores the reasons for this curious inconsistency between the broad protection for cellular communications provided by federal statute and the effect of the statute in practice.

   The Wiretap Act has generated a great deal of literature. Scholars and practitioners have considered the admissibility of evidence under the Wiretap Act(34) proposed that it be amended so as to provide additional protection for communication,(35) analyzed whether or not it includes an interspousal immunity exception,(36) explored employer surveillance of employees(37) discussed the attorney-client privilege in the context of electronic communications(38) and presented arguments about other issues arising out of the statute.(39) Surprisingly, however, no one has explored the reasons behind the lack of prosecutions of individuals who intercept cellular transmissions.

   Part II of this Note defines the technical terms used throughout this discussion. Part III outlines the federal statutory scheme which protects the privacy of cellular communication, as well as its history. Part IV illustrates that, in practice, cellular transmissions receive little privacy protection, given a large community of eavesdroppers who admit to intercepting cellular conversations, and the rarity with which such listeners are prosecuted. Part V analyzes the reasons behind the infrequency of prosecution and concludes that it is a result of several factors, including the impossibility of detecting this eavesdropping, the difficulty the government faces in proving an illegal interception of a cellular transmission, the erroneous perception that the Wiretap Act does not cover cellular communications, and a popular view that cellular conversations do not entail a reasonable expectation of privacy. This Note concludes that the current prosecutorial response to cellular eavesdroppers is not overly problematic given that a civil remedy is available to victims, cellular subscribers can utilize technology which. can not be intercepted, and the Wiretap Act sought to balance the privacy of cellular communication with the interests of radio hobbyists. Finally, the implications of this analysis for the pending investigation into the events surrounding the disclosure of the Gingrich tape are discussed.

2. The Technology

   The immediate predecessor of cellular technology was the radio telephone, also known as the mobile phone. The radio telephone is essentially a radio set which operates by converting the sound waves created by a speaker's voice into radio waves and by broadcasting those radio waves onto a particular frequency so that they can be intercepted by a receiver connected to wire telephone lines.(40) Similarly, the receiver converts the other party's wire communication into radio waves, broadcasting them so that they can be intercepted by the radio telephone, which converts the radio waves back into sound waves.(41) Because the radio waves generated by both parties are broadcast, conversations in which at least one of the parties is on a radio telephone can easily be intercepted by any type of a radio receiver capable of picking up the proper frequencies.(42) The ease with which radio telephones can be intercepted led the Ninth Circuit, in a 1986 opinion, to analogize a plaintiffs radio telephone to a "ham radio station...[that is] simply limited in the number of frequencies upon which it can broadcast and receive and is limited in power.(43)

   Another type of wireless communication is the cordless phone. The cordless phone contains both a base unit, which is connected to a wire telephone line, and a hand-held mobile unit, which converts sound waves to radio waves, thus...