Price v. Turner

• Decision Date: 14 August 2001
• Docket Number: DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,No. 00-15026,00-15026
• Citation: 260 F.3d 1144
• Parties: (9th Cir. 2001) LEORA PRICE,, v. FRANK VANCE TURNER; EL DORADO COUNTY,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1144

260 F.3d 1144 (9th Cir. 2001)

LEORA PRICE, PLAINTIFF-APPELLANT, v. FRANK VANCE TURNER; EL DORADO COUNTY, DEFENDANTS-APPELLEES.

No. 00-15026

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 12, 2001

Filed August 14, 2001

Counsel William C. Dresser, San Jose, California, for the plaintiff-appellant.

Marjorie E. Manning and Kevin W. Reager, Bolling, Walter & Gawthrop, Sacramento, California; Franklin G. Gumpert, Baskett, Gumpert & Reiner, Sacramento, California, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Chief District Judge, Presiding D.C. No. CV-98-000252-LKK

Before: Mary M. Schroeder, Chief Judge, Donald P. Lay^* and David R. Thompson, Circuit Judges.

OPINION

Schroeder, Chief Judge

The principal issue in this appeal is whether certain private cordless telephone conversations are protected from interception by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communication Privacy Act of 1986 (hereafter the "Wiretap Act"). See 18 U.S.C. §§§§ 2510, 2511. The district court granted summary judgment for the defendants because all relevant intercepted cordless telephone calls in this case were placed at a time when the Wiretap Act permitted the interception of cordless telephone communications without exception. We agree with the district court and affirm.

The plaintiff, Leora Price, sometimes called her friend Laura Beckman and also occasionally used the Beckmans' family phone. Some of Price's calls were placed to or from the Beckmans' cordless phone. One defendant is Frank Turner, a neighbor of the Beckmans, who was able to monitor the Beckmans' conversations on their cordless phone by using a radio scanner he purchased at Radio Shack. Turner apparently began the monitoring in 1989, and in June 1991, he contacted the El Dorado County Sheriff's Department to report that he had overheard cordless phone conversations between unidentified parties discussing illegal drug transactions. Sheriff's officers told Turner to continue the monitoring and instructed him to report conversations pertaining to illegal activity, providing him with written authorization and a voice-activated recorder. Turner began recording most of the conversations picked up by his AM/FM radio scanner, and provided taped recordings to law enforcement officers.

During the course of proceedings not directly related to this litigation, it came to the attention of plaintiff's counsel in this case that Price was a party to some of the indiscriminately recorded phone conversations. Price then filed this action against Turner and the County of El Dorado in state court, alleging violations of both state and federal law. After extensive discovery, the district court granted defendants' motions for summary judgment as to Price's federal claims, remanding her state claims back to the state superior court. Price appealed.

Price contends that Turner's conduct violated the Wiretap Act, which forbids the nonconsensual interception and disclosure of "wire, oral, or electronic communications." See 18 U.S.C. §§ 2511. All of the identified intercepted cordless phone communications in this case took place prior to the 1994 amendments to the Wiretap Act. The question of whether Turner violated the Act by intercepting those communications can be answered by tracing the Act's legislative history.

As a preliminary matter, however, we need to understand the nature of cordless phone communications. This case involved Turner's interception by use of a common radio scanning device of the radio wave component of the Beckmans' cordless phone transmissions. When a cordless phone is used, the parties' words travel over the radio waves between the base unit of the phone and its headset. See Askin v. McNulty, 47 F.3d 100, 104 (4th Cir. 1995). Those radio waves can be easily intercepted and overheard by anyone listening on an ordinary radio receiver. See McKamey v. Roach, 55 F.3d 1236, 1239-40 (6th Cir. 1995); United States v. Smith, 978 F.2d 171, 178-79 (5th Cir. 1992) ("The significant difference between land line telephone conversations and conversations carried out over early versions of cordless phones was the ease with which cordless phone conversations could be intercepted.").

At the time of its original enactment in 1968, the Wiretap Act did not expressly refer to the monitoring of radio transmissions. When Congress enlarged the Act's coverage in 1986, Congress explicitly excepted protection for the "radio portion of a cordless telephone communication." See 18 U.S.C.A. §§ 2510(1), (12)(A) (West 1990). It was not until 1994 that Congress amended the Act to prohibit the interception of cordless telephone communications.¹ Very recently, the Supreme Court outlined the history of the Wiretap Act. See Bartnicki v. Vopper, 531 U.S. 990, 121 S. Ct. 1753, 1759-60 (2001). A more comprehensive discussion is contained in McKamey v. Roach, 55 F.3d 1236, 1240 (6th Cir. 1995).

The Supreme Court's decision in Bartnicki was issued after the district court's summary judgment in this case, and involved First Amendment interests rather than a claim by a private party against another private party alleging a direct violation of the Wiretap Act. The Court's analysis and history of the Act is, however, authoritative and leaves no doubt that the Act did not protect cordless phone conversations that took place before the statutory amendment in 1994. Given the Court's favorable citations to the Sixth Circuit's analysis in Nix v. O'Malley, 160 F.3d 343, 346 (6th Cir. 1998), and in McKamey, 55 F.3d at 1240, there can be no question that interceptions of cordless phone communications prior to 1994 do not violate the Wiretap Act. See Bartnicki , 121 S. Ct. at 1759-60 & n.7; see also McKamey, 55 F.3d at 1240 (holding that before 1994, §§ 2510(1) and (12)(A) permitted the interception of cordless telephone communications without exception). In this case, none of the intercepted conversations that Price has been able to identify took place after 1993.

The 1986 Wiretap Act's exception for cordless telephone communications was contained in the Act's definition of both "wire communications" and "electronic communications." See 18 U.S.C.A. §§ 2510(1), (12)(A) (West 1990). Probably for that reason, Price attempts to maintain that cordless phone conversations are nevertheless protected by the Act as an "oral communication," which is defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." See 18 U.S.C.A. §§ 2510(2) (West 1990). The interpretation urged by Price, however, would render the definition of "oral communications" inconsistent with the statutory definitions of "wire" and "electronic" communications. Moreover, an oral communication must be one "uttered by a person," and the interception or disclosure of an oral communication must be of the communication itself. See id.; Smith, 978 F.2d at 175-76. The interception of a cordless phone's radio transmission is not an interception of the oral utterance itself, but of the radio signal produced by the phone's handset and its base unit. Therefore, the interception of a cordless phone transmission cannot be the interception of an oral utterance. This is the precise holding of the Sixth Circuit in McKamey, see 55 F.3d at 1239, which we noted has been cited with approval by the Supreme Court in Bartnicki, see 121 S. Ct. at 1759 n.7, and with which we are in full agreement. The district court therefore properly granted summary judgment on Price's federal claim that Turner violated the Wiretap Act, because the Act provided no protection for her cordless calls at the time Turner intercepted them.

Price also claims that Turner's interceptions violated her federal constitutional right to privacy. To better understand this claim, some explanation of the technological history of the cordless telephone is helpful.

[4] As we have discussed, at the time of the Wiretap Act's original enactment, and continuing through the time it was amended in 1986 to expressly exclude protection for cordless telephone communications, cordless phones acted essentially as a radio transmitter and could "be intercepted easily with readily available technology, such as an AM radio. " See S. Rep. No. 541, 99th Cong., 2d Sess. 12 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3566. Congress therefore concluded that it would be inappropriate to criminalize the interception of such...