Simpson v. Simpson

• Decision Date: 24 April 1974
• Docket Number: No. 73-1521.,73-1521.
• Parties: Beverly Camp SIMPSON, Plaintiff-Appellant, v. John G. SIMPSON, III, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

490 F.2d 803 (1974)

Beverly Camp SIMPSON, Plaintiff-Appellant, v. John G. SIMPSON, III, Defendant-Appellee.

No. 73-1521.

United States Court of Appeals, Fifth Circuit.

March 8, 1974.

Rehearing and Rehearing Denied April 24, 1974.

Robert Sellers Smith, Huntsville, Ala., Emily Carssow, ACLU, Atlanta, Ga., for plaintiff-appellant.

Glenn F. Manning, Huntsville, Ala., for defendant-appellee.

Before BELL, COLEMAN and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied April 24, 1974.

BELL, Circuit Judge:

The issue presented on this appeal is the scope of the wire interception provisions of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510-2520. Is the interception by a husband using electronic equipment of the conversations of his wife with a third party over the telephone in the marital home included in the statutory proscription? The context in which we must address this issue is a suit by the wife for civil damages against the husband, pursuant to Section 2520. The district court answered in the negative and we affirm, although the language and legislative history of the Act leaves the question in considerable doubt.

THE FACTS

Harboring uncertainties as to his wife's faithfulness, appellee obtained a device for tapping and recording telephone conversations. He attached the device to phone lines within his home, and thereby intercepted conversations between his wife and another man. The conversations were mildly compromising establishing that the other man was making advances, and that while the wife was resisting, she was not doing so in a firm and final fashion. Convinced that he had "caught her," appellee played the tapes, or portions thereof, to various neighbors and family members. He also played them for a lawyer, on whose advice the wife agreed to an uncontested divorce.

After the divorce appellant brought this action. Failing below, she has appealed, arguing before this court that her claim is bolstered by constitutional protections of privacy and emerging concepts of women's rights. We take a more pedestrian view of the case, and are of the opinion that it involves nothing more nor less than statutory construction. If Congress intended to extend such a remedy to persons in her position, appellant prevails; if it did not, she fails. This being the case, we turn to the statute and its history.

TITLE III

Title III of the Omnibus Act broadly prohibits the interception¹ or disclosure of a wire communication,² subject to stated exceptions which are not relevant to this case.³ Violators are subject to criminal penalties of up to $10,000 or five years.⁴ They are also civilly liable to persons whose communications they intercept or disclose.⁵

The naked language of Title III, by virtue of its inclusiveness, reaches this case. However, we are of the opinion that Congress did not intend such a farreaching result, one extending into areas normally left to states, those of the marital home and domestic conflicts.⁶ We reach this decision because Congress has not, in the statute, committee reports, legislative hearings, or reported debates indicated either its positive intent to reach so far or an awareness that it might be doing so. Given the novelty of a federal remedy for persons aggrieved by the personal acts of their spouses within the marital home,⁷ and given the severity of the remedy seemingly provided by Title III, we seek such indications of congressional intent and awareness before extending Title III to this case.

Our independent search of legislative materials has been long, exhaustive, and inconclusive. To summarize the results, we have found no direct indications that Congress intended so much, and only several scattered suggestions that it was aware that the statute's inclusive language might reach this case. In support of this general statement, we now turn to a specific discussion of the statute and its history.

An initial observation about Title III is that it is a part of a crime control act. In the Omnibus Act Congress sought generally to strengthen the position of law enforcement officials, see Senate Judiciary Comm., Senate Report No. 1097, 1968 U.S.Code Cong. & Admin.News, p. 2112.⁸ Further, the Senate report states that, "The major purpose of title III is to combat organized crime." Id. at U.S.Code Cong. & Admin.News 1968, p. 2157. Five of Title III's eleven sections deal almost exclusively with procedures for utilizing electronic surveillance against criminal activities, 18 U.S.C.A. §§ 2514, 2516-2519, and its principal goal is surveillance standards that satisfy the constitutional requirements of Berger v. New York, 1967, 388 U.S. 41, 87 S.Ct. 1873, 18 L. Ed.2d 1040, and Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L. Ed.2d 576. See Senate Report, pp. 2161-2163.

Be this as it may, Title III also was intended to protect individuals against invasions of their privacy by sophisticated surveillance devices. Senate Report, p. 2153. Thus, the Senate report introduces its section on the "Problem" with the following paragraph:

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. Commercial and employer-labor espionage is becoming widespread. It is becoming increasingly difficult to conduct business meetings in private. Trade secrets are betrayed. Labor and management plans are revealed. 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.

Id. at U.S.Code Cong. & Admin.News 1968, p. 2154. The report further states that, "To assure the privacy of oral and wire communications, title III prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officers . . . ." Id. at U.S.Code Cong. & Admin.News 1968, p. 2153. The nature and breadth of Congress's response to private surveillance is fairly indicated by the Senate report's section entitled "Prohibition," quoted in full in the margin.⁹

For our purposes it must be pointed out that we have herein quoted virtually every phrase of the report's text dealing with private surveillance — amounting to less than one of the ten pages about Title III, the balance concerning electronic surveillance by law enforcement officials. Not only does the report, like the act, focus on crime control, but it also contains no clear indication that Congress intended to intrude into the marital relation within the marital home. We thus have considered it necessary to consult the extensive legislative hearings on the subject, the better to gauge Congress's intent and awareness.¹⁰

The impression left by these hearings is similar to that produced by the report — the focus was official use of surveillance devices, with little explication of how far the private prohibition should extend. This is strikingly true of the hearings immediately preceding passage of Title III. While there are occasional references to the fact that the bill would prohibit private use of electronic surveillance techniques,¹¹ there are no substantive discussions of the probable or desired reach of the prohibition. Earlier hearings also accorded little attention to private users. For example, we have found in Sen. McClellan's 1966 hearings only three relevant sentences.¹² Similarly, of Sen. Long's six-part 1965-1966 hearings, four parts dealt exclusively with government surveillance, and one with "service observing" by telephone companies; Part 5 dealt in part with private use,¹³ although much of it concerned government serveillance practices.

Of what testimony there was about private surveillance, only a minor portion was with reference to the marital setting. The only relevant passages which we have found, in hearings stretching over five years, are set forth in the margin.¹⁴ It should be noted that the concerns and information in these passages are primarily directed towards the involvement of private investigators in marital conflicts. Indeed, were appellant seeking to recover from a third party, we could not, on the basis of this legislative history, accept the defense that the interceptions were authorized by the husband. However, to our minds a third-party intrusion into the marital home, even if instigated by one spouse, is an offense against a spouse's privacy of a much greater magnitude than is personal surveillance by the other spouse. The latter, it seems to us, is consistent with whatever expectations of privacy spouses might have vis-a-vis each other within the marital home.¹⁵

When we narrow our search to material relevant to this ultimate issue, that of whether Congress intended its regulations to invade the realm of personal acts within the marital home, we find very little indeed. We think that only two passages support appellant's case, these being the testimony of Ben Jamil and John W. Leon, quoted in note 14. These statements suggest congressional awareness that private individuals were using electronic surveillance techniques within their own homes. However, they do not support the proposition that Congress was concerned that such activities took place.¹⁶

OTHER CONSIDERATIONS.

Given this inconclusive legislative history, we think two other factors are important. First, it is clear that Congress did not intend to prohibit a person from intercepting a family member's telephone conversations by use of an extension phone in the family home— subsection (5) (a) (i) of section 2510 directly covers this point.¹⁷ If there is a convincing distinction between this clearly...