The opinion of the court was delivered by: Richard Mills, District Judge:
Cross motions for summary judgment.
The material facts of the case are not disputed. The
Plaintiff filed a two count complaint against the Defendants
for alleged violations of 18 U.S.C. § 2511, the federal
wiretapping statute. Count I is brought against Defendant
Carter and Count II is brought against Defendant Neuf. Carol
Walker alleges that Robert Carter, with the assistance of Neuf,
intercepted and recorded telephone conversations between the
Plaintiff and Defendant Carter's former wife at the Carter
residence — during their marriage — on several occasions from
1988 through 1991. All of these recordings were made without
the Plaintiff's or Mrs. Carter's consent.
The Plaintiff seeks damages against the Defendants under
18 U.S.C. § 2520 for their violation of 18 U.S.C. § 2511. The
Plaintiff and Defendant Carter have filed cross motions for
summary judgment as to Count I of the complaint, with each
party arguing for a different interpretation of the federal
Under Fed.R.Civ.P. 56(c), summary judgment shall be granted
if the record shows that "there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law." Black v. Henry Pratt Co.,
778 F.2d 1278, 1281 (7th Cir. 1985). The moving party has the
burden of showing the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct.
2548, 2553, 91 L.Ed.2d 265 (1986). A genuine issue of material
fact exists when "there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.
2505, 2511, 91 L.Ed.2d 202 (1986). In determining whether a
genuine issue of a material fact exists, the evidence is to be
taken in the light most favorable to the non-moving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598,
1608, 26 L.Ed.2d 142 (1970). Once the moving party has met its
burden, the opposing party must come forward with specific
evidence, not mere allegations or denials of the pleadings,
which demonstrates that there is a genuine issue for trial.
Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).
Based on a review of the record, the entire controversy
appears to revolve around a dispute concerning the proper
interpretation to be given 18 U.S.C. § 2511 in conjunction with
18 U.S.C. § 2520. Consequently, this is a legal dispute which
this Court is capable of resolving by means of summary
judgment. The Seventh Circuit has not yet addressed the
argument which Defendant Carter asserts, but in interpreting
the decisions of other U.S. Courts of Appeals, the Court finds
that summary judgment is appropriate for the Plaintiff.
18 U.S.C. § 2510(2) defines "oral communication" as "any oral
communication uttered by a person exhibiting an expectation
that such communication is not subject to interception."
18 U.S.C. § 2520(a) & (b) provide that "any person whose wire,
oral, or electronic communication is intercepted, disclosed, or
intentionally used in violation of this chapter may in a civil
action recover from the person or entity which engaged in that
violation . . . damages under subsection (c) and punitive
damages in appropriate cases; and . . . a reasonable attorney's
fee and other litigation costs reasonably incurred."
18 U.S.C. § 2520(c)(2) allows a court to assess as damages the greater of
the amount of actual damages sustained by the plaintiff or
statutory damages of $100 for each day of the violation or
$10,000, whichever is greater. In other words, 18 U.S.C. § 2520
allows a plaintiff to file a civil action for any conduct which
would constitute a violation of 18 U.S.C. § 2511.
The question, then, is whether the uncontroverted conduct of
Defendant Carter amounts to a violation of 18 U.S.C. § 2511.
Defendant Carter claims that because he tapped the telephone
line of his own residence, he cannot be held liable to the
Plaintiff under 18 U.S.C. § 2520. However, that view is
contrary to the view held today by the majority of the U.S.
Courts of Appeals.
Defendant Carter relies on the case of Simpson v. Simpson,
490 F.2d 803 (5th Cir. 1974), which held that 18 U.S.C. § 2511
did not apply to interspousal wiretapping committed within the
marital home. The Simpson holding was premised on the belief
that federal courts should not become involved with domestic
relations disputes. 490 F.2d at 805. That case, though, has
been roundly criticized and its holding rejected by the
majority of the federal courts that have subsequently addressed
the issue of marital wiretapping. See United States v. Jones,
542 F.2d 661, 667 (6th Cir. 1976); Pritchard v. Pritchard,
732 F.2d 372, 374 (4th Cir. 1984); and Kempf v. Kempf,
868 F.2d 970, 972-73 (8th Cir. 1989). In addition, numerous district
courts across the country have concluded that the federal
wiretapping statute prohibits nonconsensual spousal wiretapping
within the marital home. Kempf, 868 F.2d at 973; Heyman v.
Heyman, 548 F. Supp. 1041, 1045-47 (N.D.Ill. 1982).
The courts which have rejected the Simpson holding have done
so on the basis of the language of 18 U.S.C. § 2511 and the
legislative history of the statute. The courts have determined
that Congress did not intend to create an exception for
interspousal wiretapping and chose to use clear and unambiguous
language in 18 U.S.C. § 2511 prohibiting all wiretapping ...