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Supreme Court Briefs

No. 99-1687, 99-1728



In The
Supreme Court of the United States

GLORIA BARTNICKI AND ANTHONY F. KANE, JR.,
Petitioners,
V.

FREDERICK W. VOPPER. Ct al.,
Respondents.

UNITED STATES OF AMERICA,
Petitioner,
V.

FREDERICK W. VOPPER, et al.,
Respondents.

On Writs of Certiorari to the
United States Court of Appeals
tor the Third Circuit


BRIEF AMICUS CURIAE OF THE
CELLULAR TELECOMMUNICATIONS INDUSTRY
ASSOCIATION IN SUPPORT OF PETITIONERS



MICHAEL F. ALTSCHUL
CELLULAR
TELECOMMUNICATIONS
INDUSTRY ASSOCIATION
1250 Connecticut Avenue, N.W
Suite 200
Washington, D.C. 20036
(202) 785-0081



September 6, 2000
HOWARD J. SYMONS
Counsel of Record
TARA M. CORVO
ROBIN E. TUTTLE
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, PC.
701 Pennsylvania Avenue, N.W.
Suite 900
Washington, D.C. 20004
(202) 434-7300

Counsel for Amicus Curiae





TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES in

STATEMENT OF INTEREST

INTRODUCTION AND SUMMARY OF ARGUMENT
ARGUMENT 4

I. ENSURING THE PRIVACY OF SUBSCRIBER COMMUNICATIONS FURTHERS THE FEDERAL POLICIES OF ALLOWING WIRELESS
CUSTOMERS TO
EXERCiSE THEIR RIGHT TO SPEAK
FREELY AND ENCOURAGING THE
GROWTH OF THE WIRELESS INDUSTRY.. 4

A. There is a Strong Federal Policy of Protecting Wireless Subscribers' Rights as
First Amendment Speakers 4

B. There is a Strong Federal Policy of Encouraging the Growth and Development of
the Wireless Service Industry 7

II. RESPONDENTS HAVE NO FIRST
AMENDMENT RIGHT TO DISCLOSE
ILLEGALLY INTERCEPTED COMMUNI
CATIONS 9

A. The Acts of Disclosing and Using Illegally
Intercepted Communications Are Not
Expressive Conduct Protected by the First
Amendment
9



Pag
e

ii

TABLE OF CONTENTS—Continued

Page
B. Even if Respondents' Acts of Disclosing
and Using Illegally Intercepted Commu-
nications Are Expressive Conduct, Their
Right to Engage in Such Conduct Is
Outweighed by the Government's
Substantial Interest in Protecting Privacy
in Wireless Communications

1. The Government Has A Substantial
Interest in Protecting the Privacy of
Wireless Communications

2. ECPA's Prohibitions on Expressive
Conduct Are Narrowly Drawn

C. The Cases Cited by Respondents As
Support for the Argument that the First
Amendment Bars ECPA's Prohibitions On
Expressive Conduct Are Inapposite

CONCLUSION


II



12


12
iii

TABLE OF AUTHORITIES

Cases

Bartnicki v. Vopper, 200 F.3d 109 (3rd Cir.
1999) passim
Iioehner v. McDermott. 191 F.3d 463 (D.C.
Cir.
1999) passim
Brandenhurg v. Ohio, 395 U.S. 444, 89 S.Ct.
1827, 23 L.Ed.2d430(1969) 10
Branzhuri~ v. Haves, 408 U.S. 665, 92 S.Ct.
2646, 33 L. Ed.2d 626(1972) 10,11
Clark v. Comnmunitv fir Creative Non-
Violence,
468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d
221
(1984) 9,10,11
Cox Broad. Coip. v. Cohn, 420 U.S. 469, 95
S.Ct. 1029,43L.Ed.2d328(1975) 17
Dietemann i'. Time, Inc., 449 F.2d 245 (9th
Cir.
1971) 10
Geihard v. United States, 4(18 U.S. 45, 92
S.Ct.
2357,33 L.Ed.2d 179 (1972) 6
1-larper & Row, Publishers, Inc. i'. Nation
Enter.,
47! U.S. 539, 105 S.Ct. 2218,85 L.Ed.2d 588
(1985) 10
Kat: v. United States, 389 U.S. 347, 88 S.Ct.
507, 19 L.Ed.2d 576(1967) 12
Konigsherg i'. State Bar of California, 366 U.S.
36,81 S.Ct.997,6L.Ed.2d 105 (1961) 9
Landmark Communications, Inc. v. Virginia,
435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed. 2d
1(1978).. 17
New York Times Co. v. Sullivan, 376 U.S.
254, 845.Ct.710, II L.Ed.2d686(1964)
10
New York Times Co. v. United States, 403
U.S. 713,91 S.Ct.2140,29L.Ed.2d822(1971)
11
Peavv v. WFAA-TV, Inc., 2000 WL 1051909
(5th
Cir. 2000) passim
16

19





iv
TABLE OF AUTHORITIES—Continued
Page
Smith v. Daily Mail Pub!. Co., 443 U.S. 97, 99
S.Ct. 2667,61 L.Ed.2d 399 (1979) 17-18
Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533,
105 L. Ed.2d 342 (1989) 9,10
The Florida Star i.'. B.J.F., 491 U.S. 524, 109
S.Ct.2603, 105L.Ed.2d443(1989) 18
United States v. Cianfrani. 573 F.2d 835 (3rd
Cir. 1978) 6
United States v. O'Brien, 391 U.S. 367, 88 S.Ct.
1673, 20 L.Ed. 2d 672(1968) 9,12

Statutory Authority
18 U.S.C. § 1029 7
18 U.S.C. §§ 2510et seq passim
18U.S.C.§2512 7
47U.S.C.§ 151 7
47 U.S.C. § 302a(d) 6
47 U.S.C. § 309(j) 7, 8
47 U.S.C. §§ 332(a)(2), (3) 8
47 U.S.C. § 332(c) 8
Omnibus Budget Reconciliation Act of 1993,
Pub. L. No. 103-66, 6002(b), 107 Stat. 312 8
Administrative Authority

Implementation oj Sections 3(n) and 332 of the
C'ommunications Act, Regulatory Treatment of
Mobile Services, Second Report and Order, 9
FCC Rcd 1411(1994) 8

Legislative History

H.R. Rep. No. 103-1 11, 103d Cong., 1st Sess.
(1993) 8
H.R. Rep. No. 103-213, 103d Cong., 1st Sess.
(1993) 8
v

TABLE OF AUTHORITIES—Continued
Page
S. Rep. No. 90-1097, 90th Cong., 2d Sess.
(1968) 5
S. Rep. No. 99-541, 99th Cong., 2d Sess. (1986)..passm





STATEMENT OF INTEREST

The Cellular Telecomm unications Industry Association ("CTIA") is the international organization of the wireless commullications industry for both
wireless carriers and manufacturers. Membership in the association covers all commercial mobile radio service ("CMRS") providers and manufacturers.
CTIA represents more broadband Personal Communications Service carriers and more cellular carriers than any other trade association. As such, CTIA is
uniquely situated to represent the interests of the wireless industry with
2
respect to the matter before the Court.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Third Circuit's decision undermines Congress's carefully constructed statutory scheme to secure the privacy of the contents of wireless
communications. Ensuring wireless subscriber privacy furthers Congress's dual interests in developing the growth of wireless telecommunications and
preserving wireless subscribers' First Amendment rights to speak freely, without fear of interception. Congress has determined that these interests
outweigh any First Amendment rights the media and other individuals may have to "speak" through expressive conduct by revealing the contents of
illegally intercepted communications.

Wireless service use has expanded exponentially in recent years. There are over 100 million wireless subscribers in the


No counsel lbr any party in this case authored this brief in whole or in part, an(I no person or entity other than anticus curiae and its members made any monetary
contribution to the preparation or submission of this brief.
2 CTIA has obtained consent from all l~etitioners and Respondents to file this brief.

Bartuicki v. Vopper. 20(1 R3d I 0') (3rd Cir. 1999).


2
United States today, and each day, that number grows by
another 67,082 new subscribers. Since 1993, the number of
wireless customers has increased by 90 million customers.
Nearly 14 million of those customers have subscribed to
wireless service in just the last six months.4

Subscribers of wireless service use their service for both
business and personal purposes. Employees use wireless
telephones to conduct business while commuting or traveling.
Individuals use wireless telephones to keep in touch with
family and friends. There is also a growing trend to replace
traditional wireline telephones, both at home and in the
oltice, with wireless telephones. Experts in the wireless
industly expect that the number of current wireless subscri
hers will double within the next two years:

The wireless industry has invested approximately $58
billion to deploy facilities and services since 1993.6 Today,
wireless competition flourishes. More than 241 million
Americans can choose from between three and eight wireless
service providers. More than 178 million Americans can
choose from among five or more wireless providers. Over 8 I
niillion Americans can choose from among six or more wire-
less providers.7 However, the industry's investments will be
compromised without suitable protections for the privacy of
subscriber communicatIons. Subscribers to wireless services
have a legitimate expectation of privacy in their
communications, and will not speak freely if their


4"The History of Wireless," /fi~qs/fitqhisiory.cfm>.

Id.
6
"Annualized Wireless Industry Data Survey Results," cum.com/statsurv/survcyIl999 I 2b.chn>.
7"The I listory (it Wireless," __ hi story .c tnt>
3

expectations are not met. Recognizing the threat to subscrib-
ers' First Amendment rights and the wireless industry,
Congress carefully tailored statutory protection for privacy
in wireless communications.

The Third Circuit's decision invalidating the protections
of the Electronic Communications Privacy Act of 1986
("ECPA"/ against disclosure of illegally intercepted
communications, if allowed to stand, will have significant and
far-reaching repercussions beyond the issues involved in this
case. The decision will nullify a large number of state laws
providing similar protection. More generally, such a decision
could ultimately restrict the application of numerous other
laws restricting the disclosure of information, such as those
preserving the confidentiality of the names of rape victims
or juvenile offenders, as long as the disclosing party has not
participated in the illegal interception or theft of that
information.

Congress has determined that ill order to preserve certain
values of American society—protecting the confidentiality
of private conversations, the names of young wrongdoers
and the identity of innocent victims of crime—any rights of
the public to "speak" by disclosing certain private or
sensitive information must be curtailed. This restriction
applies with even greater justification where that
information was obtained through unlawful means. ECPA
was carefully crafted to address the specific problems
Congress identified, without unnecessarily restricting any
additional "speech." The Third Circuit's decision upsets this
balance. CTIA submits this brief in support of Petitioners'
argument that the Third Circuit's decision in this matter
must be reversed.




IX U.S.C. §§ 25 10 ci seq.





4
ARGUMEN'!'

I. ENSURING THE PRIVACY OF SUBSCRIBER
COMMUNICATIONS FURTHERS THE FEI)ERAL
POLICIES OF ALLOWING WIRELESS
CUSTOMERS TO EXERCISE THEIR RIGHT
TO SPEAK FREELY ANI) ENCOURAGING
THE GROWTH OF THE WIRELESS INDUSTRY

Congress repeatedly has recognized that preserving sub-
scribers' expectation of private communications is essential
to its dual goals of protecting the First Amendment rights of
wireless subscribers and promoting the growth and
development of the wireless industry. Through Title III of
the Omnibus Crime Control and Safe Streets Act of 1 968, as
amended by ECPA, and the Communications Act of 1934
(the "Communications Act"), Congress has given express
privacy protection to communication over wireless
telephones and has established remedies for invasions of
these communications. These provisions represent a
congressional mandate t~ secure subscriber privacy. The
Third Circuit's decision undermines wireless subscriber
privacy rights. It also contradicts Congress's determination
that the preservation of subscriber privacy is vital to wireless
subscribers' First Amendment right to speak and, in turn, to
the growth and development of the wireless service industry.

A. There is a Strong Federal Policy of
Protecting Wireless Subscribers' Rights
as First Amendment Speakers.

Americans have a significant societal and financial interest
in maintaining the privacy of communications, and
legitimately expect that their communications, including


5
wireless communications, are private.9 They expect that
their communications will not be unlawfully intercepted, and
that the contents of their communications will not be
unlawfully disclosed or used. A loss of the expectation of
privacy in effect nullifies wireless subscribers' First
Amendment right to speak.

Congress recognized that a loss of privacy would restrict
the speech of wireless subscribers, and took a number of
legislative steps to ensure subscriber privacy. Congress
enacted Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 (amended by ECPA) to "protectil the
privacy of wire and oral communications" and "delineat[e]
on a uniform basis the circumstances and conditions under
which the interception of wire and oral communications may
be authorized.~~0t In 1986, when the cellular
telecommunications industry was in its infancy, Congress
amended the prior definition of protected "wire
communication" specifically to
II
include cellular communications. Thus, ECPA protects
communications, including wireless communications, from


Although the Petitioners in this matter may be considered
public figures who were discussing matters that may be of public
concern, their public stature and the public nature of their
conversation does not obliterate the protection of privacy afforded
them in their communications. Notably, had there been no illegal
interception of their communication, Respondents would not have
known about the communication, whether it was between public
figures or private individuals, and whether its nature was of public
concern or a private interest.

Even if this Coun finds that Petitioners' communication was
not protected from (liselosure and use because the Petitioners
were public figures discussing a matter of public concern, this
Court should find that communications between private individuals
regarding private or public matters are protected from unlawful
interception, disclosure, and use.

'~ S. Rep. No. 90-1097, 9t)th Cong., 2d Sess., 66 (1968).
Sec S. Rep. No. 99-541, 99th Cong., 2(1 Sess., 6 (1986).






2 Id. at
5.

6 7
unlawful interception, and from the unlawful disclosure and
use of information obtained from such unlawful
interceptions.

The legislative history of ECPA confirms that ECPA was
designed to "protect the privacy of our citizens" so that
potential customers would not be "discouragej4j om
,,12
using innovative communications systems. This Court
also has recognized that in enacting ECPA, "the protection
of privacy was an overriding congressional concern."
Gelbard v. United States, 408 U.S. 41, 48, 92 S.Ct. 2357,
33 L.Ed.2d 1 79 (1972). Similarly, in United States v.
Cianfrani, the court noted that:

protection of the privacy of communications is vital to
our society. We depend upon the free interchange of
ideas and information And we are dedicated to the
proposition that each individual should be free from
unwarranted intrusion into his private affairs Only by
governing strictly both authorization and disclosure of
intercepted communications did Congress believe that
such weighty interests could be protected adequately.

573 F.2d 835, 856 (3rd Cir. 1978).

Section 302(d) of the Communications Act confirms the
overriding impotttnce that Congress has placed on privacy in
wireless communications. Section 302(d) directs the Federal
Communications Commission ("FCC") to deny equipment
authorization to any scanning receiver that is capable of
receiving transmissions in the frequencies allotted to wireless
service, or may be readily altered to receive such
transmissions, and prohibits the manufacture or import of
such receivers. 47 U.S.C. § 302a(d). Further, Congress also
has taken steps to increase subscriber confidence in the
confidentiality of wireless communications by making it a
crime to engage in a broad array of activities related to the
theft of wireless service,13 and to engage in the manufacture.
distribution, possession, or advertising of interception
devices. ~

B. There is a Strong Federal Policy of Encour-
aging the Growth and Development of the
Wireless Service Industry.
The privacy protections described above are a critical
element of the statutory framework to encourage the growth
in wireless services. If persons do not expect that their
wireless communications will be kept private, they will not
be willing to subscribe to wireless service. Such a result con-
tradicts the explicit Federal policy of encouraging the use of
wireless service.

The Communications Act includes several provisions to
facilitate and encourage the growth of the wireless service
industry. Section 1 of the Communications Act, for instance,
establishes the national policy of "makilingi available . . . a
rapid, efficient, Natioti-wide, and world-wide . . . radio com-
munication service 47 U.S.C. § 151. Likewise, section
309(j) of the Communications Act establishes a competitive


~ Eor instance, 18 U.S.C. § 1029 imposes fines, imprisonment
ranging from It) to 20 years, or both, on a person who "knowingly
and with intent to defraud uses, produces, traffics in. has control
or custody of, or possesses a telecommunications instrument that
has been modified or altered to obtain unauthorized use of
telecommunications services" (§ t029(a)(7)); "knowingly and with
intent to defraud uses, produces, traffics in, has control or
custody of, or possesses a scanning receiver" (§ 1029(a)(8)); or
"knowingly uses, produces, traffics in, has controt or custody of,
or possesses hardware or software, knowing it has been
configured to insert or modify telecommunication identifying
information associated with or contained in a telecommunications
instrument so that such instrument may be used to obtain
telecommunications service without authorization" (§ I t)29(a)(9)).
N 18 U.S.C. § 2512.




8

bidding procedure to promote the rapid and efficient assign-
ment of wireless spectrum. 47 U.S.C. § 309(j).

More specifically, in 1993, Congress established a national
regulatory framework for CMRS that preempted state and
local rate and entry regulation and authorized the
deregulation of these services at the Federal level.tS Through
the enactment of section 332(c), Congress sought to
promote investment in wireless services. See
Implementation (4 Sections 3(n) and 332 of the
Communications Act, Regulatory Treatment of Mobile
Services, Second Report and Order, 9
(6

FCC Rcd 1411, 1421 (1994). The legislative history of
section 332 clarifies Congress's understanding that a uniform
national policy is necessary to promote competition in the
wireless marketplace and further the Federal policy to
encourage further investment in wireless infrastructure. See
H.R. Rep. No. 103-213, 103d Cong., 1st Sess., 480-81
(1993), H.R. Rep. No. 103-Ill, 103d Cong., 1st Sess., 260
(1993).

The protection of subscriber privacy that Congress
established in ECPA is crucial to Congress's overall goal of
promoting the use of wireless communications and the
success of the industry. As Congress recognized, allowing
persons to disclose intercepted communications may
discourage consumers from using those services, and "may



Omnibus Budgct Reconciliation Act of 1993, Pub. L. No. 103-
66,
6002(b~, 107 Stat. 312, 392-393 (coditied in scattered sections of
47 U.S.C.).
6 More generally, section 332 also requires the FCC to manage
the

spectrum in such a way as to ~'improve the efficiency of spectrum
use and reduce the burden upon spectrum users" and "encourage
competition and provide services to the largest number of feasible
users." 47 U.S.C.

§§ 332(a)(2), (3).
9

discourage American businesses from developing new
innovative forms of telecommunication."17

II. RESPONDENTS HAVE NO FIRST AMENDMENT
RIGHT TO DISCLOSE ILLEGALLY
INTERCEPTED COMMUNICATIONS

Respondents have no First Amendment right to disclose
private wireless communications. Disclosing and using ille-
gally intercepted communications is not expressive conduct
protected by the First Amendment. Even if it were protected
conduct, under the O'Brien test,'5 Respondents' First Amend-
ment rights would be outweighed by wireless subscribers' right
to privacy ensured by ECPA.

A. The Acts of I)isclosing and Using Illegally
Intercepted Communications Are Not
Expressive Conduct Protected by the First
Amendment.

Only "expressive" conduct—conduct that rises to the level
of being "communicative and that, in context, would
reasonably be understood by the viewer to be commu-
nicative"—may be accorded First Amendment protection.
Clark v. Community for Creative Non-Violence, 468 U.S.
288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); see also
Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105
L.Ed.2d 342 (1989). Disclosing and using illegally inter-
cepted communications is not expressive conduct, and does
not merit First Amendment protection.

'~ S. Rep. No. 99—541, supra. nIl, at 5.
'~ United States v. O'Brien. 391 U.S .367, 377, 88 S.Ct. 1673,
2t) L.Ed.2d 672 (1968).
9 Similarly, not all speech is protected by the First Amendment.
See Konigsbe,~g c. State Bar of Califtnnia, 366 U.S. 36, 49, 81
S.Ct. 997, 6 L. Ed.2d 105 (1961). For example, there is no First
Amendment protec—





10
This Court has found conduct to be "expressive" where it
is inexorably tied to expression of ideas or beliefs. In Clark,
for example, persons sought permission to camp in
Lafayette Park to call attention to the plight of the
homeless. In Johnson, a person bumed the American flag to
protest the renomination of President Reagan. In contrast,
Respondents' disclosure of unlawfully obtained conversations
is not an attempt to express a particular viewpoint. Their act
of disclosing information does not sufficiently possess the
communicative elements that were found in Johnson to
implicate the First Amendment. See .lohnson, 491 U.S. at
404-406. As such, Respondents' conduct is not protected by
the First Amendment.

In fact, ECPA was enacted to prohibit the very sort of
conduct in which Respondents engaged. ECPA does not limit
to whom its prohibitions apply. Neither any individual nor
the media is exempt from these prohibitions. As this Court
has recognized, the "First Amendment does not guarantee
the press a constitutional right of special access to
information not available to the public generally." Branzburg
v. ha yes, 408 U.S. 665, 684, 92 S.Ct. 2646, 33 L.Ed.2d 626
(1972).
Nor is the First Amendment a "license to trespass, to steal,
or to intrude by electronic means into the precincts of
another's home or office." Dietemann v. Time, Inc., 449
F.2d 245, 249 (9th Cir. 1971). "Although stealing documents
or private wiretapping could provide newsworthy
information, neither
II

reporter nor source is immune from conviction for such
conduct Branzhurg, 408 U.S. at 691 20

B. Even if Respondents' Acts of Disclosing and
Using Illegally Intercepted
Communications Are Expressive Conduct,
Their Right to Engage in Such Conduct Is
Outweighed by the Government's
Substantial Interest in Protecting Privacy in
Wireless Communications.

Even if Respondents' actions are deemed expressive con-
duct, their First Amendment right to disclose information is
outweighed by the Government's substantial interest in
protecting the privacy of wireless communications. Expres-
sive conduct protected by the First Amendment "may be
forbidden or regulated if the conduct itself may
constitutionally be regulated, if the regulation is narrowly
drawn to further a substantial governmental interest, and if
the interest is unrelated to the suppression of free speech."
Clark, 468 U.S. at 294 (citing O'Brien). Courts have often
tempered First Amendment rights iti this manner. In Clark,
for example, the Court found that the statute restricting
individuals from sleeping in the park served the substantial
governmental interest of maintaining the park in an
attractive and intact condition, and thus justified limitations
on First Amendment freedoms. The Government has such a
similarly substantial interest in protecting the privacy of
wireless communications.





tion tkr publication of libelous statements (see New York Times Co.
v. Sullivan, 376 U.S. 254, 84 S.Ct. 711), II L.Ed.2d 686 (1964)); for
advocating use of torce or violation of law to incite or produce
imminent lawlessness (see Brandenburg v. Ohio, 395 U.S. 444, 89
S.Ct. 1827, 23 L.Ed.2d 43(J (1969)); or (or appropriation of an
author's copyrightable expressions (see harper & Ron, Publishers,
Inc. v. Nation Enter., 471 U.S. 539, 1(15 S.Ct. 2218,85 L.Ed:2d
588 (1985)).


2(1 While the Court on one occasion penoitted newspapers to
publish stolen, confidential documents (i.e., the Pentagon Papers),
New York Tunes Co. v. United States, 41)3 tJ.S. 713, 91 SCi. 2140,
29 L.Ed.2d 822 (1971), it did so because it found that the
Government did not meet its burden of showing justification for the
imposition of a prior restraint on expression.





13
12

I. The Government Has A Substantial Interest in
Protecting the Privacy of Wireless Cornm
unications.
There is a substantial governmental interest in protecting
Ihe privacy of wireless communications. As described fully
above, ECPA's prohibitions on illegal interception,
disclosure, and use of private communications are part of a
continuing congressional effort to preserve wireless sub-
scribers' right to speak freely, and to promote investment in
and development of wireless technology and infrastructure by
encouraging consumer confidence in the service, the
network, and the privacy of wireless communications.

For these reasons, the court below and other courts
considering the question have agreed that there is a sub-
stantial governmental interest in protecting privacy in com-
munications. Bartnicki, 200 F.3d a 122; Peavy v. WFAA-TV,
Inc., 2000 WL 1051909 (5th Cir. 2000), Bochner v.
McDermott, 191 F.3d 463 (D.C. Cir. 1999)~2t

2. ECPA 's Prohibitions on Expressive Conduct
Are Narrowly Drawn.

Statutory prohibitions on speech or expressive conduct
comport with the First Amendment if the burdens on the
prohibited speech are necessary and narrowly tailored to
achieve the Government's interest. O'Brien, 391 U.S. at 377.


21 In the search-and-seizure context, moreover, this Court and
Congress have recognized a constitutional right to privacy of
telephone conversations, whether wireline or wireless. See Katz v.
United States, 389 tJ.S. 347. 352, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967) (telephone conversations intended by the speakers to be
private are private; ~~ltlo read the Constitution more narrowly is to
ignore the vital role that the public telephone has come to play in
private communication'); see also S. Rep. No. 99-541 at 2 (citing
Katz).
ECPA's prohibition on certain expressive speech meets this
standard.

First, ECPA's burdens on speech are necessary in order to
protect the privacy of wireless communications and the First
Amendment rights of wireless users to speak freely without
fear of being intercepted. The Bochner and Pea~'y courts
specifically recognized the suppressing effect on free speech
that results from lack of privacy. See Boehner, 191 F.3d at
468 ("Ielavesdroppers destroy the privacy of conversations.
The greater the threat of intrusion, the greater the inhibition
on candid exchanges. Interception itself is damaging enough.
But the damage to free speech is all the more severe when
illegally intercepted commutlications may be distributed with
impunity."); Peavy, 2000 WL 1051909 ar 36 (the
"protection of communications' confidentiality encourages,
rather thati suppresses, free expression."). As the Boehner
and Peavy decisions recognize, parties to a communication
will no longer speak freely if they fear their communications
can be unlawfully intercepted, disclosed, and used without
recourse.

If this Court affirms the Third Circuit's ruling, persons
whose privacy has been invaded through illegal interception,
disclosure, and use of their communications will have no
recourse for the damages they have suffered, because the
identity of the person who unlawfully intercepts the
22
communication is often never known. As Judge Pollak noted
below in his dissent, "tome would not expect [the unlawful
eavesdropperj to reveal publicly the contents of the
communication; if lhei did so Ihel would risk incriminating

22 White the media outlet may know the identity of the
interceptor, state shield laws will prevent disclosure of the
interceptor's identity. Further, as discussed above, affirming the
Third Circuit's holding will likely nullify most, if not all, of the state
statutes, including Pennsylvania's statute, that regulate electronic
surveillance and the disclosure of private communications obtained
through such surveillance.





14
lhimselli." Bart,iicki, 200 F.3d at 133 (quoting Boehner, 191
F.3d at 470). Likewise, in Boehner, the court explained that
interceptors " 'can literally launder illegally intercepted
information' and there would be 'almost no force to deter
exposure of any intercepted secret."' Id. at 470 (quoting
Boehner v. McDermott, 1998 WL 436897, *4 (D.D.C. July
28, 1998)).23 It is for this very reason that Congress
imposed liability on individuals who knowingly disclose or use
illegally intercepted communications. Congress's goals can-
not be achieved without a corresponding burden on the media
or other individuals' speech or expressive conduct.

Second, ECPA's burdens on speech are narrowly tailored
to address the Government's interests. The Third Circuit
erroneously held that there was no evidence that ECPA
furthers the Government's interest in promoting privacy,
that the connection between preventing third parties from
using or disclosing intercepted material and preventing the
initial interception was "indirect at best," and that the court
was "not prepared to accept the United States' unsupported
allegation that the statute is likely to produce the
hypothesized effect." Bartnicki, 200 F.3d at 125-26.
However, it is patently obvious that if individuals and the
media cannot disclose or use a communication that they
know, or have reason to know, has been obtained through an
illegally intercepted communication, the demand for such
communications will be largely eliminated, thus deterring
would-be interceptors. The Third Circuit's demand that the
United States offer concrete evidence that ECPA's
prohibition has "deterred any other would-be interceptors"
sets an unattainable standard. The deterrent effect of the
statute is proved by the fewer number of unlawful
eavesdropping cases and the less frequent need

23 Even where the identity of the interceptor is known, as it was
in Boe/u,er. meaningful recourse is olteri impossible once the private
speech has been publicly disclosed.
IS
for enforcement activity under ECPA, neither of which is
capable of being presented as evidence. Under the Third
Circuit's interpretation of narrow tailoring, the balance of
harms would weigh in favor of disclosure in each instance.
Such a result is not compatible with the standard set forth by
this Court in O'Brien.

The other courts that have balanced ECPA and First
Amendment considerations have found more than a
sufficient nexus between the problem and solution. For
instance, the Peavy court found that:

(pirohibiting interception alone is not sufficient to
protect the privacy of communications. Without the
itse and disclosure proscriptions, government's efforts
to prohibit interception would be far less effective,
because a person who illegally intercepts a conversation
and wishes to disclose it to the public can do so, at no
risk to himself, by simply anonymously providing the
contents of the communication—by use of a tape or
otherwise— to third parties, such as the media, who have
an interest in disclosing, or otherwise using, those
contents (as in Bartnicki).

2000 WL 1059109 at 36.24

The Boehner court also recognized the connection
between the activities prohibited by ECPA and the statute's
desired result:

fu]less disclosure is prohibited, there will be an incentive
for illegal interceptions; and unless disclosure is

24 The Peavy court distinguishes its holding (and that in
Boehner) from the Third Circuit's decision below on the basis that in
Peavy and Boehner, there were allegations that the defendants Itad
participated in the illegal interception. However, the holdings of
Peavy and Boehner apply with equal force here, because liability for
unauthorized disclosure and use under ECI~A does not depend on
participation in the underlying illegal i!ticrcept ion.





16

prohibited, the damage caused by an illegal interception
will be compounded. It is not enough to prohibit dis-
closure only by those who conduct the unlawful
eavesdropping. One would not expect them to reveal
publicly the contents of the communication; if they did
so they would risk incriminating themselves. It was
therefore 'essential' for Congress to impose upon third
parties, that is, upon those not responsible for the
interception, a duty of non-disclosure.

191 F.3d at 470.

As the dissent below persuasively argued, ECPA is
narrowly tailored to achieve the substantial governmental
interest in protecting the privacy of wireless
communications. This Court should similarly find that the
Government's interest in protecting the privacy of wireless
communications ts narrowly tailored.

C. The Cases Cited by Respondents As Support for
the Argument that the First Amendment
Bars ECPA's Prohibitions On Expressive
Conduct Are Inapposite.

Respondents rely principally upon four cases for the
proposition that the First Amendment protects lawfully
obtained information and prohibits criminal sanctions for the
publication of truthful information. Although all four cases
address the conflict between First Amendment rights and
persotial privacy, as protected by various state statutes, these
cases are factually inapposite to the matter before the Court.
This case involves the imposition of civil sanctions for the
intentional disclosure and use of a private communication
that the parties to the communication had not made public
and that the Respondents ktiew, or had reason to know, was
unlawfully obtained. Far from deciding the case at bar, the
cases relied upon by Respot1dents specifically reserved the
question of whether prohibition of disclosure or use of
17

unlawfully obtained inlormation would violate the First
Amendment.

First, Cox Broad. Corp. v. Cohn, 420 U.S. 469, 95 S.CI.
1029, 43 L.Ed.2d 328 (1975) is of no avail to Respondents
because the Court specifically found in Cox that thc
information disclosed was not private. The Court held that a
rape victim's privacy had faded, even though her name was
published in violation of a Georgia statute, because the
reporter lawfully learned the name of the victim from
records made available for public inspection. Accordingly,
the First Amendment barred the State from imposing any
sanctions on the newspaper for publication after disclosure.
In contrast, in this case, the information disclosed was a
private communication that neither party to the
communication made public. More specifically, the
communication here was unlawfully intercepted, disclosed,
and used.

Landmark Comtnunications, Inc. v. Virginia, 435 U.S.
829, 98 S.Ct. 1535, 56 L.Ed.2d I (1978) is similarly
unavailing. There, the Court held that criminal sanctions
could not be imposed on a newspaper for unlawfully divulging
lawfully obtained, truthful information regarding certain
confidential proceedings because the State's interests in
protecting such confidentiality did not sufficiently justify the
infringement on First Amendment rights. In this case,
however, the remedy being sought is civil, not criminal; the
subject of the civil suit is an unlawful disclosure of
information that was unlawfully obtained from a private
communication; and the Government's interest in protecting
privacy in communications, accomplished by ECPA's
prohibitions, justifies the limitations on the Respondents'
First Amendment rights, as elaborated previously.

Respondents' reliance on Stnith v. Daily Mail Puhl'g Co.,
443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979) is also
baseless. In Daily Mail, the Court held that there was no
expectation of privacy, and criminal sanctions could not be





18

imposed when newspapers published, in violation of a West
Virginia statute, the name of a juvenile offender that they
lawfully obtained from witnesses, the police, and a
prosecutor. In this case, the disclosure concerned unlawfully
obtained information. Further, the parties to the communi-
cation at issue here had a reasonable expectation of privacy
that did not fade when their communication was illegally
intercepted, disclosed, and used.

Finally, The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct.
2603, 105 L.Ed.2d 443 (1989) does not support
Respondents' arguments. In Florida Star, the Court held that a
statute prohibiting a newspaper from publishing the name of
a victim it had obtained from a publicly released police
report violated the First Amendment. But unlike the
information published in Florida Star, the communication
disclosed and used in this case was not lawfully obtained.
Rather, it was obtained through an illegal interception of a
private communication. Florida Star did not decide the
question presented by this case: "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." 491
U.S. at 535 n.8.

Contrary to Respondents' suggestion, the protected status
of otherwise public information provides no support for an
asserted right to publish information that has been unlawfully
obtained or intercepted. This Court should affirm its past
precedent of allowing disclosure of private information only
when such information has been lawfully obtained, and hold
that unlawfully obtained, non-public information protected
by statute must be kept confidential. If individuals and the
media can disclose the fruits of unlawful interception with
tnpun ity, the privacy of this con fidential in formation—
whether the contents of a confidential wireless com-
munication, the name of a juror, or the identify of a rape
victim—will be fatally compromised, and those whose
19

privacy has been violated will be left without an effectivc
remedy. The right to publish must be tempered by this rigltt
to privacy. Likewise, the right of citizens to communicate
freely with one another is strengthened by precluding thc
disclosure of unlawfully intercepted conversattons.

CONCLUSION

For the above reasons, the decision of the Third Circuit
allowing the media to disclose the contents of unlawfully
intercepted, private wireless communications should be
reversed.

Respectfully submitted,
MICHAEL F. ALTSCHUL CELLULAR
TELECOMMUNICATIONS

INDUSTRY ASSOCIATION

1250 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20036
(202) 785-0081


September 6, 2000
HOWARDJ. SYMONS
Coutisel o~f Record
TARA M. CORVO ROBIN E. TUYELE
MINTZ, LEVIN, CouN, FERRIS,

GLOVSKY AND POPEO, P.C.
701 Pennsylvania Avenue, N.W.
Suite 90t)
Washington, D.C. 20004
(202) 434-7300
Counsel for Amicus Curiae