McKamey v. Roach

• Decision Date: 09 June 1995
• Docket Number: No. 94-5559,94-5559
• Citation: 55 F.3d 1236
• Parties: Robert L. McKAMEY and Edward E. Jett, Plaintiffs-Appellants, v. Randall ROACH; Ziena Roach; I.M. Watson; Jon Walls; Michael Scott Golden; Nikki Spense; Curtis Blanton; Archer C. Stevens; John Doe; Richard Doe; Mary Doe, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1236

55 F.3d 1236

Robert L. McKAMEY and Edward E. Jett, Plaintiffs-Appellants, v. Randall ROACH; Ziena Roach; I.M. Watson; Jon Walls Michael Scott Golden; Nikki Spense; Curtis Blanton; Archer C. Stevens; John Doe Richard Doe; Mary Doe Defendants-Appellees.

No. 94-5559.

United States Court of Appeals, Sixth Circuit.

Argued April 11, 1995.

Decided June 9, 1995.

Jerrold L. Becker (argued and briefed), Lockridge & Becker, Knoxville, TN, for plaintiffs-appellants Robert L. McKamey, Edward E. Jett.

Peter Alliman (argued and briefed), Lee, Alliman and Carson, Madisonville, TN, Billy P. Sams, Webster, Sams, Irving, & Ritter, Oak Ridge, TN, for defendants-appellees Randall Roach, Ziena Roach, I.M. Watson.

Peter Alliman, Lee, Alliman and Carson, Madisonville, TN, Billy P. Sams, Webster, Sams, Irving, & Ritter, Oak Ridge, TN, R. Louis Crossley, Jr., Long, Ragsdale & Waters, Knoxville, TN, for defendants-appellees Jon Walls, Curtis Blanton.

Peter Alliman, Lee, Alliman and Carson, Madisonville, TN, R. Louis Crossley, Jr., Long, Ragsdale & Waters, Knoxville, TN, for defendant-appellee Nikki Spense.

Peter Alliman, Lee, Alliman and Carson, Madisonville, TN, for defendant-appellee Archer C. Stevens.

Before: MERRITT, Chief Judge; LIVELY and KEITH, Circuit Judges.

LIVELY, Circuit Judge.

This is an action for damages brought under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. Secs. 2510-2521 (1988) (Title III or the Act). The plaintiffs complained that the defendants Randall and Ziena Roach intercepted and recorded telephone conversations between the plaintiffs, and disseminated the recordings to the remaining defendants in violation of Title III. The district court held that because the plaintiff Jett used a cordless telephone in conversing with McKamey and the defendants intercepted and recorded only the radio transmissions from that instrument, Title III does not provide a remedy in damages. We agree and now affirm the judgment of the district court.

I.

A.

The defendants Randall and Ziena Roach are neighbors of the plaintiff Edward Jett in Anderson County, Tennessee. The Roaches own a scanner capable of intercepting cordless telephone conversations. In their complaint the plaintiffs alleged that beginning around January 28, 1992, the Roaches intercepted and recorded twelve to thirty telephone conversations between them in violation of Title III. Neither plaintiff knew his conversations were being intercepted or recorded.

According to the complaint, during their conversations McKamey used a standard land-line telephone, while Jett used a cordless telephone within his home. McKamey claims he never knew that Jett was using a cordless phone. Jett's cordless phone was equipped with a "Cobra Secur-Loc" and digital security codes designed to decrease interference from other cordless phones. The cordless portion of the conversations were transmitted between the cordless phone base unit and the handset of Jett's cordless phone via AM or FM radio signals. These radio signals can be intercepted rather easily with a radio scanner such as the one used by the defendants.

In their complaint the plaintiffs also alleged that the defendants Roach revealed the contents of their taped conversations to the other defendants for the purpose of humiliating and embarrassing the plaintiffs and causing them economic and political harm. Additionally, the plaintiffs charged that the defendants maliciously published these taped conversations and disseminated them to members of public agencies in Anderson County for the purpose of harming the reputation of the plaintiffs.

B.

The defendants filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). We take all well-pled averments of the complaint as true. Following oral argument, the district court granted the defendants' motion. In its memorandum opinion, the court held that Title III does not protect the conversations in which Jett used a cordless telephone from interception because such conversations do not come within the statutory definitions of the types of communications made illegal by the Act. Title III defines and protects three types of communications--"wire" communications, "electronic" communications, and "oral" communications.

The court further concluded that any subjective expectation of privacy the plaintiffs might have had in their conversation was not objectively reasonable. This was so, according to the court, because "[w]hen Jett essentially broadcast the plaintiffs' conversations over his cordless phone, any objective expectation of privacy McKamey might have had in his conversation was lost."

II.

On appeal, the plaintiffs assert that this case is one of first impression because all earlier cases relied upon by the district court involved criminal prosecutions, whereas this The purpose of the Act--"to deal with increasing threats to privacy resulting from the growing use of sophisticated electronic devices" (quoting State v. Howard, 235 Kan. 236, 679 P.2d 197, 201 (1984))--requires a more flexible reading of Title III than that given by the district court, according to the plaintiffs. Even if Jett cannot rely on Title III to recover damages, plaintiffs' counsel contends that McKamey had an objectively reasonable expectation of privacy that he should be permitted to vindicate in this action.

case is totally between private parties. They also contend that this case is different from other cases decided under Title III because McKamey used a traditional land-based telephone and was unaware that Jett was using a cordless instrument. None of the Title III cases, they argue, established a per se rule that regardless of the facts and circumstances, no conversation in which a cordless telephone is used by either party is covered by the Act.

III.

This is a case of statutory construction. That being so, we look first to the language of the Act to determine whether the communications between Jett and McKamey, transmitted and intercepted via radio waves from Jett's cordless phone, were protected.

A.

Title III as amended in 1986 forbids the non-consensual interception of wire, oral and electronic communications. 18 U.S.C. Sec. 2511(1)(a). Furthermore, the statute also forbids the intentional disclosure or use of the contents of any wire, oral or electronic communication if one has knowledge that the information was obtained through illegal interception. 18 U.S.C. Sec. 2511(1)(c) & (d). Violators are subject to criminal prosecutions as well as civil damages to the party whose communications were intercepted. 18 U.S.C. Secs. 2511(4) & 2520. Unless the plaintiffs' conversations qualify as wire, oral or electronic communications, however, Title III affords them no protection.

At the time of the conversations between Jett and McKamey, the Act's definitions of "wire" and "electronic" communications specifically exempted from those definitions the radio portion of a conversation involving the use of a cordless telephone.

The statute defined "wire communication" as:

any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception ... but such term does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.

18 U.S.C. Sec. 2510(1) (1988) (emphasis added). Similarly, the statute provided that an "electronic communication" was:

any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system ... but does not include--(A) the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.

18 U.S.C. Sec. 2510(12)(A) (1988) (emphasis added). ¹

The courts that have addressed the question agree overwhelmingly that cordless telephone transmissions are not "wire" or "electronic" communications covered by Title III. See In re Askin, 47 F.3d 100, 103 (4th Cir.1995); United States v. Smith, 978 F.2d 171, 175 (5th Cir.1992) (noting that "Title III expressly excludes cordless telephone transmissions from the definitions of 'wire' and 'electronic' communication"), cert. denied, --- U.S. ----, 113 S.Ct. 1620, 123 L.Ed.2d 179 (1993); Tyler v. Berodt, 877 F.2d 705, 706 (8th Cir.1989) (per curiam) (stating that "the While it is true that most of the cited cases involved warrantless interceptions by law enforcement officers that led to criminal prosecutions, for our purposes this is a distinction without a difference. The analysis of the Act is the same; there is just no Fourth Amendment issue in this purely civil action between private individuals.

emerging view is that cordless telephone transmissions were not 'wire communications' even before the 1986 amendment"), cert. denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d 743 (1990); United States v. Carr, 805 F.Supp. 1266, 1271 (E.D.N.C.1992); Edwards v. Bardwell, 632 F.Supp. 584, 589 (M.D.La.1986), aff'd, 808 F.2d 54 (5th Cir.1986); State v. Smith, 149 Wis.2d 89, 438 N.W.2d 571, 577 (1989); State v. Delaurier, 488 A.2d 688, 693-94 (R.I.1985); State v. Howard, 235 Kan. 236, 679 P.2d 197, 204-05 (1984).

The plaintiffs rely on United States v. Hall, 488 F.2d 193, 197 (9th Cir.1973). In Hall, the defendants appealed their drug convictions arguing that the electronic surveillance of their radio-telephone conversations which led to their arrests violated Title III and the Fourth Amendment. The Hall court concluded that when one party to a communication uses a land-line telephone, the conversation is a wire communication even if the other party uses a mobile radio phone. Id. at 197. Hall is...