Cell Phone Snooping: Why Electronic Eavesdropping Goes Unpunished

Article excerpt

I. Introduction II. The Technology III. Federal Statutory Scheme and its History

A. Federal Communications Act of 1934

B. Title III of the Omnibus Crime Control and Safe Streets Act of

1968

C. Electronic Communication Privacy Act of 1986

D. Other Legislation IV. The Protection of Cellular Transmissions in Practice

A. The Community of Scanning Enthusiasts

B. Few Prosecutions for Infringing Upon the Privacy of Cellular

Transmissions V. Why Virtually No oNe Is Being Prosecuted For Infringing

Upon Cellular Privacy

A. Detection of Eavesdroppers Impossible

B. Interception Must Be Intentional

C. It Has Been Asserted that the Wiretap Act Does Not Cover

Cellular Communications

D. Cellular Transmissions are Seen by Many as not Exhibiting a

Reasonable Expectation of Privacy VI. CONCLUSION

I. INTRODUCTION

The story of John and Alice Martin has become a familiar one. On December 2 1, 1996, the Floridians were driving in their car, listening to an allegedly unmodified police scanner that John Martin had purchased at Radio Shack in September.(1) Suddenly, the couple "recognized some voices" that the scanner had intercepted, and they realized that the subject of the conversation they were listening to concerned an investigation of House Speaker Newt Gingrich then being conducted by the House Ethics Committee.(2) Accordingly, the Martins recorded the conversation using a tape recorder they had with them in the car.(3) They took the tape to the Florida office of their Congressional representative. Democrat Karen L. Thurman, who ultimately returned it to the couple during their visit to Washington a few weeks later.(4) Representative Thurman, who apparently had not listened to the tape, told the Martins to deliver it to fellow Representative Jim McDermott, the ranking Democrat on the House Ethics Committee at the time, and directed them in preparing a letter addressed to McDermott which stated. "we also understand that we will be granted immunity.(5) The couple then presented the letter and tape to McDermott.(6) Within the next few days, the text of the conversation was printed in the New York Times, Roll Call, and the Atlanta Journal-Constitution.(7) Following a press conference at which the Martins stated that they had given the tape to McDermott, the Representative presented it to the Ethics Committee.(8) Republicans believe that McDermott was responsible for passing the tape along to the media.(9)

The recorded conversation turned out to be a cellular conference call involving several House Republicans, including Speaker Gingrich, House Majority Leader Dick Armey of Texas, and Representatives John Boehner of Ohio and Bill Paxton of New York.(10) The conversation, conducted in anticipation of Gingrich's announcement admitting that he had violated the rules of the House, essentially plotted damage control.(11) Such plotting apparently violated an agreement Gingrich had made with the Ethics Committee "not to use his office and his allies to orchestrate a Republican counterattack" in response to the Committee's investigation.(12)

The Ethics Committee did not use the tape as evidence against the Speaker. Rather, the recording was immediately turned over to the Department of Justice upon the insistence of House Ethics Committee Chairwoman Nancy Johnson.(13) As soon as the Department received the tape, the FBI initiated a criminal investigation.(14) Pursuant to this investigation, the FBI interviewed the major players in the case(15) and examined the Martins' scanner in order to determine whether it had been modified after purchase.(16)

Florida State Attorney Jerry Blair stated in January that he is unlikely to pursue criminal charges against the Martins.(17) The Department of Justice, however, was not as quick to announce whether its investigation into this matter would result in the prosecution of the Martins or anyone on Capital Hill suspected of disclosing the contents of the tape. …