"whoever violates subsection (1) of this section shall be fined
under this title or imprisoned not more than five years, or
both." There is no specifically listed exception in the statute
for interspousal wiretapping.
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 not
specifically excluded by the statute. Kempf, 868 F.2d at
972-73; Heyman, 548 F. Supp. at 1045-47.
This Court finds no reason to depart from this interpretation
of the statute indicating that Congress intended to preempt
state law in the area of wiretapping regulation. Were the
Seventh Circuit to address the issue, we believe it would come
to the same conclusion, given the recent consensus among the
federal courts in interpreting the statute.
Consequently, this Court adopts the view that 18 U.S.C. § 2511
prohibits all unauthorized interspousal wiretapping
committed within the marital home. As a result of the
undisputed facts in the present case, the Plaintiff is entitled
to judgment as a matter of law under 18 U.S.C. § 2520(a) for
Defendant Carter's unauthorized recording of the telephone
conversations between his wife and the Plaintiff. The Court
finds, however, that there is insufficient information provided
in the complaint for a determination of damages under 18 U.S.C. § 2520(b)
at this time. This issue will be addressed in further
Ergo, Defendant Carter's motion for summary judgment as to
Count I of the complaint is DENIED, and the Plaintiff's motion
for summary judgment on Count I is ALLOWED.
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