to the relevant communications. The Wiretap Act is a
wiretapping statute, and just because a scenario sounds in
fraud or deceit does not mean it sounds in wiretapping.80
80
As § 2511(2)(d) contemplates that a “party” to a
communication can “intercept” it, we are led to believe that
the present version of the Wiretap Act gives “intercept” a
broader connotation than “the ordinary meaning of ‘intercept’
. . . [which] is ‘to stop, seize, or interrupt in progress or
course before arrival.’” See Konop v. Hawaiian Airlines, Inc.,
302 F.3d 868, 878 (9th Cir. 2002) (quoting Webster’s Ninth
New Collegiate Dictionary 630 (1985)); see also Goldman v.
United States, 316 U.S. 129, 134 (1942) (“The natural
meaning of the term ‘intercept’ . . . indicates the taking or
seizure by the way or before arrival at the destined place.”),
overruled on other grounds by Katz, 389 U.S. 347; Black’s
Law Dictionary (10th ed. 2014) (defining “intercept” as “to
covertly receive or listen to (a communication)”). We will
not, therefore, adopt the defendants’ other alternative
argument, which is that the plaintiffs’ Wiretap Act claim
should fail for want of an “interception.” If the plaintiffs’
claims had been brought under the Wiretap Act as it existed
when Pasha was decided, however, the plaintiffs would likely
fail to show an “interception” for the same reason that, today,
they fail to show that the defendants were not parties to the
relevant communications within the meaning of § 2511(2)(d).
See Pasha, 333 F.2d at 198 (“Interception connotes a
situation in which by surreptitious means a third party
overhears a telephone conversation between two persons. We
believe that impersonation of the intended receiver is not an
interception within the meaning of the statute.”).
39
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