Posted by Eugene Volokh:
Secret Audiotapes:
http://volokh.com/archives/archive_2007_05_27-2007_06_02.shtml#1180676118
[1]Mickey Kaus writes:
On page 93 of the new Gerth-Van Natta Hillary Clinton book, a
sentence describes how, during the '92 campaign, Hillary herself
"listened to a secretly recorded audiotape of a phone conversation
of Clinton critics plotting their next attack. The tape contained
disucssions of another woman who might surface with allegations
about an affair with Bill. Bill's supporters monitored frequencies
used by cell phones, and the tape was made during one of those
monitoring sessions."
...
Isn't [this] not so legal? ... See also [2]this exegesis of the
elements of a violation of 18 U.S.C. 2511(1)(a)....
To answer Mickey's question, 18 U.S.C. � 2511(1) does provide (and as
best I can tell did provide in 1992) that
Except as otherwise specifically provided in this chapter any
person who--
(a) intentionally intercepts, endeavors to intercept, or procures
any other person to intercept or endeavor to intercept, any wire,
oral, or electronic communication;
[is guilty of a felony, and subject to civil suit].
Thus, if Hillary conspired with those who intercepted the phone
conversations, solicited such interception, or aided that
interception, that would be a crime.
What if the tapes just anonymously landed on her desk, so that there
is no conspiracy, solicitation, or aiding, and she just listened to
them and used them in her campaign? That too would be prohibited, by
section (d), which equally covers any person who
(d) intentionally uses, or endeavors to use, the contents of any
wire, oral, or electronic communication, knowing or having reason
to know that the information was obtained through the interception
of a wire, oral, or electronic communication in violation of this
subsection.
Her only defense (assuming the tapes were pretty clearly a result of
an intercepted communication) would be, I think, that the First
Amendment allows her to use information that she indirectly got from
someone else's intercept in crafting the campaign's own First
Amendment activity. See the narrow and mysterious [3]Bartnicki v.
Vopper (2001), which makes most First Amendment calculations in this
area hard to make, and ignore the temptation to make much out of
[4]Boehner v. McDermott (D.C. Cir. 2007) (en banc) (4-1-4), in which
the swing vote turned on a special factor not present here (the fact
that the defendant was a Representative whose conduct was also barred
by a House Rule).
References
1. http://www.slate.com/id/2167180/&#clintoncell
2. http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01052.htm
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-1687
4. http://pacer.cadc.uscourts.gov/docs/common/opinions/200705/04-7203b.pdf
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
