03/02/2020 Bartnicki v. Vopper, 532 US 514 - Supreme Court 2001 - Google Scholar [5] Tellingly,we noted in Florida Star that "[t]o the extent sensitive information rests in private hands, the government may under some circumstances forbid its nonconsensual acquisition, thereby bringing outside of the Daily Mail principle the publication of any information so acquired." 491 U. S., at 534; see also id., at 535 ("[I]t is highly anomalous to sanction persons other than the source of [the] release"). [6] The problem is pervasive because legal "radio scanners [may be] modified to intercept cellular calls." S. Rep. No. 99-541, at 9. For example, the scanner at issue in Boehner v. McDermott, 191 F. 3d 463 (CADC 1999), had been recently purchased at Radio Shack. See Thompson, 35 Am. Crim. L. Rev., at 152, and n. 138 (citing Stratton, Scanner Wasn't Supposed to Pick up Call, But it Did, Orlando Sentinel, Jan. 18, 1997, p. A15). [7] In crafting the exclusionary rule, we did not first require empirical evidence. See Elkins, 364 U. S., at 218 ("Empirical statistics are not available to show that the inhabitants of states which follow the exclusionary rule suffer less from lawless searches and seizures than do those of states which admit evidence unlawfully obtained"). When it comes to this Court's awesome power to strike down an Act of Congress as unconstitutional, it should not be "do as we say, not as we do." [8] The Court attempts to distinguish Ferber and Osborne on the ground that they involved low-value speech, but this has nothing to do with the reasonableness of the "dry-up-the-market" theory. The Court also posits that Congress here could simply have increased the penalty for intercepting cellular communications. See ante, at 529. But the Court's back-seat legislative advice does nothing to undermine the reasonableness of Congress' belief that prohibiting only the initial interception would not effectively protect the privacy interests of cellular telephone users. [9] The Court observes that in many of the cases litigated under § 2511(1), "the person or persons intercepting the communication ha[ve] been known." Ante, at 530. Of the 206 cases cited in the appendices, 143 solely involved § 2511(1)(a) claims of wrongful interception—disclosure was not at issue. It is of course unremarkable that intentional interception cases have not been pursued where the identity of the eavesdropper was unknown. Of the 61 disclosure and use cases with published facts brought under §§ 2511(1)(c) and (d), 9 involved an unknown or unproved eavesdropper, 1 involved a lawful pen register, and 5 involved recordings that were not surreptitious. Thus, as relevant, 46 disclosure cases involved known eavesdroppers. Whatever might be gleaned from this figure, the Court is practicing voodoo statistics when it states that it undermines the "dry-up-the-market" theory. See ante, at 531, n. 17. These cases say absolutely nothing about the interceptions and disclosures that have been deterred. Save trees - read court opinions online on Google Scholar. https://scholar.google.com/scholar_case?q=bartnicki&hl=en&as_sdt=2006&case=2171346211086974391&scilh=0 15/15