[ISN] Loophole found in wiretap law

From: mea culpa (jerichoat_private)
Date: Fri Sep 11 1998 - 13:15:08 PDT

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    September 8, 1998
    Loophole found in wiretap law
         By Jeffrey Silva
    WASHINGTON =97A federal court ruling has exposed a huge loophole in the
    wiretap law, one that gives wireless consumers far less protection from
    eavesdropping than industry officials and government policy makers have
    led the public to believe to date.=20
    U.S. District Judge Thomas Hogan recently ruled the First Amendment can
    trump wireless privacy protection.=20
    The case at issue involved the interception of a conference call in which
    House Speaker Newt Gingrich (R-Ga.) and other GOP leaders plotted strategy
    to deal with ethics violations a congressional committee was to cite
    against the speaker.=20
    Rep. John Boehner (R-Ohio), chairman of House Republican Conference, was
    using his cellular telephone in Florida during the GOP skull session. A
    Florida couple with Democratic sympathies, John and Alice Martin, picked
    up the GOP conversation on their scanner.=20
    The Martins gave a tape of intercepted GOP call to their representative,
    Rep. Karen Thurman (D-Fla.). Thurman and aides to House Minority Whip
    David Bonior (D-Mich.) discussed the tape, and Thurman later advised the
    Martins to give it to McDermott, a member of the ethics panel probing
    Gingrich at that time.=20
    When the matter became public and controversial McDermott surrendered his
    House Ethics Committee seat.=20
    McDermott subsequently gave copies to the tape to The New York Times, The
    Atlanta-Journal Constitution and Roll Call and possibly to other media
    outlets. The Times broke the story on the Jan. 13, 1997, front page,
    causing great embarrassment to Gingrich and his colleagues.=20
    After a Justice Department probe, the Martins were charged with
    misdemeanors for illegally intercepting the cellular telephone call and
    fined $500 each.=20
    Boehner sued McDermott in March 1998, arguing the 1986 electronic
    communications privacy act bans the intentional disclosure of wireless,
    wireline or other electronic communications that have been illegally
    However, Judge Hogan concluded =91=91the First Amendment prevents the
    government from punishing the disclosure of truthful, lawfully obtained
    information of public significance=92=92 and McDermott escaped prosecution.=
    Jamin Raskin, a constitutional law professor at American University in
    Washington, D.C., said Hogan made the right call.=20
    =91=91It is a fairly universal principle in law that if people come into
    possession of evidence illegally they can do what they want with it,=92=92
    said Raskin.=20
    Indeed, taped conversations that possibly violate Maryland=92s wiretap law
    triggered revelations about President Clinton=92s =91=91inappropriate
    relationship=92=92 with former White House intern Monica Lewinsky.=20
    =91=91The bottom line is that if you don=92t want to be recorded, don=92t t=
    alk on
    the telephone,=92=92 said Raskin.=20
    At the same time, Hogan=92s 15-page opinion was laced with reservations tha=
    Boehner=92s lawyers likely will latch onto in their appeal.=20
    =91=91The wiretap statutes appear to contemplate that the taped conversatio=
    in this case was unlawfully obtained, since it was stolen in a most
    unscrupulous, underhanded fashion,=92=92 said Hogan. =91=91Logic suggests t=
    hat a
    criminal cannot launder the stains off illegally obtained property simply
    by giving it to someone else, when that other person is aware of its
    =91=91The First Amendment case law does not seem to adopt this logic, howev=
    and it 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,=92=92 stated Hogan. =91=91Although the court finds th=
    interpretation illogical, and, even worse, suspects that it effectively
    undermines the protection that wiretap statutes supposedly afford, the
    court is bound to accept and follow it.=92=92
    Ted Cruz, an attorney for Boehner, said the ruling =91=91dilutes the [wiret=
    statute into nothingness.=92=92
    The Cellular Telecommunications Industry Association, which is pursuing
    legislation in Congress to crack down on scanners capable of being
    modified to intercept cellular calls, said it did not wish to comment at
    this time.=20
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