03/02/2020 Bartnicki v. Vopper, 532 US 514 - Supreme Court 2001 - Google Scholar William D. Sims, Jr., Thomas S. Leatherbury, and Marie R. Yeates; and for Representative James A. McDermott by Frank Cicero, Jr., Christopher Landau, and Daryl Joseffer. [1] See 48 Stat. 1069, 1103. [2] Either actual damages or "statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000" may be recovered under 18 U. S. C. § 2520(c)(2);under the Pennsylvania Act, the amount is the greater of$100 a day or $1,000, but the plaintiff may also recover punitive damages and reasonable attorney's fees. 18 Pa. Cons. Stat. § 5725(a) (2000). [3] Title 18U. S. C. § 2511(1)(c) provides that any person who "intentionally discloses, or endeavors to disclose, to any other person 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;. . . shall be punished . . . ." The Pennsylvania Act contains a similar provision. [4] Title 18 U. S. C. § 2511(1)(a) provides: "(1) Except as otherwise specifically provided in this chapter [§§ 2510-2520 (1994 ed. and Supp. V)] 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; . . . shall be punished . . . ." [5] In the Boehner case,as in this suit, a conversation over a car cell phone was intercepted, but in that case the defendant knew both who was responsible for intercepting the conversation and how they had done it. 191 F. 3d, at 465. In the opinion of the majority, the defendant acted unlawfully in accepting the tape in order to provide it to the media. Id., at 476. Apparently because the couple responsible for the interception did not eavesdrop "for purposes of direct or indirect commercial advantage or private financial gain," they were fined only $500. See Department of Justice Press Release, Apr. 23, 1997. In another similar case involving a claim for damages under § 2511(1)(c), Peavy v. WFAA—TV, Inc., 221 F. 3d 158 (CA5 2000), the media defendant in fact participated in the interceptions at issue. [6] In particular,calls placed on cellularand cordless telephones can be intercepted more easily than those placed on traditional phones. See Shubert v. Metrophone, Inc., 898 F. 2d 401, 404-405 (CA3 1990). Although calls placed on cell and cordless phones can be easily intercepted, it is not clear how often intentional interceptions take place. From 1992 through 1997, less than 100 cases were prosecuted charging violations of 18 U. S. C. § 2511. See Statement of James K. Kallstrom, Assistant Director in Charge of the New York Division of the FBI on February 5, 1997 before the Subcommittee on Telecommunications, Trade, and Consumer Protection, Committee on Commerce, U. S. House of Representatives Regarding Cellular Privacy. However, information concerning techniques and devices for intercepting cell and cordless phone calls can be found in a number of publications, trade magazines, and sites on the Internet, see id., at 6, and at one set of congressional hearings in 1997, a scanner, purchased off the shelf and minimally modified, was used to intercept phone calls of Members of Congress. [7] See, e. g., Nix v. O'Malley, 160 F. 3d 343, 346 (CA6 1998); McKamey v. Roach, 55 F. 3d 1236, 1240 (CA6 1995). [8] In answering this question, we draw no distinction between the media respondents and Yocum. See, e. g., New York Times Co. v. Sullivan, 376 U. S. 254, 265-266 (1964); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 777 (1978). [9] "But while a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary to such a showing in all cases. . . . Nor will the mere assertion of a contentneutral purpose be enough to save a law which, on its face, discriminates based on content." Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642-643 (1994). [10] The Solicitor General has cataloged some of the cases that fall under subsection (d): "[I]t is unlawful for a company to use an illegally intercepted communication about a business rival in order to create a competing product; it is unlawful for an investor to use illegally intercepted communications in trading in securities; it is unlawful for a union to use an illegally intercepted communication about management (or vice versa) to prepare strategy for contract negotiations; it is unlawful for a supervisor to use information in an illegally recorded conversation to discipline a subordinate; and it is unlawful for a blackmailer to use an illegally intercepted communication for purposes of extortion. See, e. g., 1968 Senate Report 67 (corporate and labor-management uses); Fultz v. Gilliam, 942 F. 2d 396, 400 n. 4 (6th Cir. 1991) (extortion); Dorris v. Absher, 959 F. Supp. 813, 815-817 (M. D. Tenn. 1997) (workplace discipline), aff'd in part, rev'd in part, 179 F. 3d 420 (6th Cir. 1999). The statute has also been held to bar the use of illegally intercepted communications for important and socially valuable purposes. See In re Grand Jury, 111 F. 3d 1066, 1077-1079 (3d Cir. 1997)." Brief for United States 24. [11] Put another way, what gave rise to statutory liability in this suit was the information communicated on the tapes. See Boehner v. McDermott, 191 F. 3d 463, 484 (CADC 1999) (Sentelle, J., dissenting) ("What . . . is being punished . . . here is not conduct dependent upon the nature or origin of the tapes; it is speech dependent upon the nature of the contents"). [12] That question was subsequently reserved in Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 837 (1978). [13] In cases relying on such a rationale, moreover, the speech at issue is considered of minimal value. Osborne v. Ohio, 495 U. S. 103 (1990); New York v.Ferber, 458 U. S., at 762 ("The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis "). The Government also points to two other areas of the law—namely, mail theft and stolen property—in which a ban on the receipt or possession of an item is used to deter some primary illegality. Brief for United States 14; see also post, at 550-551 (Rehnquist, C. J.,dissenting). Neither of those examples, though, involve prohibitions on speech. As such, they are not relevant to a First Amendment analysis. https://scholar.google.com/scholar_case?q=bartnicki&hl=en&as_sdt=2006&case=2171346211086974391&scilh=0 13/15