[Congressional Record Volume 143, Number 19 (Thursday, February 13, 1997)]
[Extensions of Remarks]
[Pages E255-E256]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  NOT WHOM YOU TELL, BUT HOW YOU KNOW

                                 ______
                                 

                          HON. NORMAN D. DICKS

                             of washington

                    in the house of representatives

                      Thursday, February 13, 1997

  Mr. DICKS. Mr. Speaker, several Members of the House of 
Representatives, including the chairman of the Republican Congressional 
Campaign Committee, have made some rather hasty public statements 
concerning the recorded cellular telephone call involving Speaker 
Gingrich and all of its legal ramifications. Many claims have been made 
about the laws that are applicable to disclosure of confidential 
information, but I am concerned there has been insufficient legal 
research into the statutes involved and into the legal precedents in 
existence. In this regard, Mr. Speaker, I am submitting for the Record 
an analysis that was printed in this week's National Law Journal by an 
expert first amendment lawyer whose practice involved areas of 
newsgathering, publishing, and broadcasting. In this article, Victor A. 
Kovner takes issue with an assertion made by allies of Speaker Gingrich 
who were involved in the recorded conversation. Specifically, the 
charge was made that forwarding and publishing information from such a 
conversation was a felony. In this article, Mr. Kovner explores the 
Federal wiretap statute (18 U.S.C. 2510 et seq.) as it pertains to 
recorded conversations and concludes that ``there is scant authority 
for finding a criminal violation based on mere disclosure by a person 
who had no role in the underlying recording.''
  I urge my colleagues to carefully consider Mr. Kovner's compelling 
reasoning as presented in the National Law Journal.

             [From the National Law Journal, Feb. 10, 1997]

                  Not Whom You Tell, But How You Know

                         (By Victor A. Kovner)

       Congressman Jim McDermott has ``committed a felony,'' New 
     York Rep. Bill Paxon charged at his initial press conference, 
     referring to the alleged delivery by Mr. McDermott, D-Wash., 
     of the tape of the Newt Gingrich strategy conference to the 
     New York Times and Atlanta Journal-Constitution. It is sad to 
     see a fine career ``disintegrate,'' said Mr. Paxon.
       Strong words, coming as they did from the chair of the 
     Republican Congressional Campaign Committee and a participant 
     in the taped conversation in which, as later found by Special 
     Counsel James M. Cole, Speaker Gingrich violated his promise 
     to the Ethics Committee not to orchestrate an effort to 
     minimize the charges brought against him.
       But was there any basis for such a serious charge by Mr. 
     Paxon? Perhaps the Florida couple who overheard the 
     conversation on their police scanner (equipment that has been 
     for years widely and lawfully available at retail outlets 
     around the country) may have technically violated the Federal 
     Wiretap Statute, 18 U.S.C. 2510 et seq., which was amended in 
     recent years to cover interception of cellular and cordless 
     calls, as well as regular phone calls. Congress apparently 
     intended to provide for an expectation of privacy with the 
     amendments, and the 8th U.S. Circuit Court of Appeals agreed 
     that cordless phone calls made before the amendments did not 
     have a justifiable expectation of privacy. Tyler v. Berodt, 
     877 F.2d 705 (8th Cir. 1989), cert. denied, 110 S. Ct. 723 
     (1990).
       What about the role of Mr. McDermott, who reportedly sent 
     copies to the newspapers? Assuming those reports are accurate 
     (he has declined to define the role, if any, he played), the 
     Paxon theory goes, Mr. McDermott violated the portion of the 
     statute that bars disclosure of an illegal tape or its 
     contents.
       This theory proves too much, for if Mr. McDermott's alleged 
     conduct was criminal, why not that of the New York Times or 
     the Atlanta Journal-Constitution? The statute in question 
     makes unlawful not only the unauthorized interception or 
     recording, but also disclosure ``knowing or having reason to 
     know'' that the recording was unlawful. 18 U.S.C. 2511(1)(c). 
     Why Bill Paxon presumed that Jim McDermott had such knowledge 
     while the newspapers, which examined the tape carefully and 
     transcribed it in its entirety, did not, is unclear. Notably, 
     Mr. Paxon did not charge either newspaper with criminal 
     conduct.
       Though, in the context of civil claims for damages, courts 
     have taken various views of the statute's reach, there is 
     scant authority for finding a criminal violation based on 
     mere disclosure by a person who had no role in the underlying 
     recording. In 1993 a number of people associated with Sen. 
     Charles Robb, D-Va., were fined for distributing illegal 
     tapes of personal calls of then-Lt. Gov. Douglas Wilder. 
     Unlike the serendipitous recording of the Gingrich strategy 
     conference, the Wilder tapes were made by a person who had 
     systemically and unlawfully recorded hundreds of cellular 
     calls.


                          protective precedent

       But any attempt to prosecute people who had no involvement 
     in or knowledge of the unlawful recording, such as Mr. 
     McDermott or the newspapers--neither of whom had any prior 
     association of any kind with the Florida couple--would face 
     serious constitutional problems. In Landmark Communications 
     v. Virginia, 435 U.S. 829 (1978), the Supreme Court held that 
     the First Amendment prohibits criminal punishment for 
     disclosure of confidential judicial disciplinary proceedings 
     by nonparticipants in the proceedings. The mere publication 
     of truthful information, even though confidential by law, was 
     found protected.
       In dismissing a claim for invasion of privacy by a rape 
     victim whose identity had been inadvertently but unlawfully 
     released to a reporter by an employee of a sheriff's office, 
     the Supreme Court later noted, ``We hold only that where a 
     newspaper publishes

[[Page E256]]

     truthful information which it has lawfully obtained, 
     punishment may lawfully be imposed, if at all, only when 
     narrowly tailored to a state interest of the highest order.'' 
     Florida Star v. B.J.F., 490 U.S. 524, 109 S. Ct. 2603 (1989).
       Given the extraordinary newsworthiness of Speaker 
     Gingrich's violation of a commitment he had just made as part 
     of his plea bargain, it is hard to imagine the presence of a 
     state interest of the ``highest order'' warranting the 
     institution of criminal proceedings against Mr. McDermott or 
     the newspapers.
       In a case similar to Landmark Communications, a California 
     appellate court has written, ``[S]tate law cannot impose 
     criminal or civil liability upon a nonparticipant for breach 
     of the confidentiality required by [law].'' Nicholson v. 
     McClatchy Newspapers, 177 Cal. App. 3d 509,223 Cal. Rptr. 58 
     (Cal. App. 3d Dist. 1986).
       As a matter of common sense, the participants in the 
     recorded conversation plainly had a diminished expectation of 
     privacy when Rep. John A. Boehner, R-Ohio, joined the 
     conversation on his car phone. Surely the others were aware 
     that he was on a car phone. Surely they were aware that 
     cellular phones may be recorded by nonparticipants with 
     equipment that has been sold lawfully in thousands of stores 
     throughout the country. If Speaker Gingrich was aware he was 
     participating in a nonsecure communication and was then 
     caught violating his commitments to the Ethics Committee, he 
     and Ohio Republican Representative Boehner are principally to 
     blame. Under these circumstances, any claim that the conduct 
     of Jim McDermott (or the newspapers) was felonious would be 
     reckless and irresponsible.

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