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U.S. Supreme Court to hear cell-phone privacy case

By Raju Chebium
CNN.com Correspondent

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WASHINGTON (CNN) -- In a case involving the privacy of cellular-telephone conversations, the U.S. Supreme Court will decide if federal and state laws preventing people from using information obtained through illegal wiretaps violate the First Amendment.

The nation's highest court will hear oral arguments in two related cases, Bartnicki v. Vopper and U.S. v. Vopper, on December 5.

The cases arose out of an intercepted cell-phone conversation in 1993 between Pennsylvania teacher's union officials Gloria Bartnicki and Anthony Kane. Someone tapped into the call and recorded it. Local radio host Frederick Vopper played the tape on the air, justifying the move as necessary in the public interest, according to legal filings and prior court rulings in the matter.

Bartnicki and Kane filed suit, seeking money from Vopper and other parties under federal and Pennsylvania statutes providing penalties for those who use wiretapped information despite suspecting or knowing that the material was obtained illegally.

The high court is being asked to decide the legality of those portions of the Electronic Communications Privacy Act and a similar Pennsylvania wiretapping law.

Both those statutes impose penalties on those who use or disseminate information gathered through tapping into "wireless, oral or electronic" communication, court papers show.

The legality of civil and criminal penalties imposed on those who do the tapping is not at issue in the cases pending before the high court.

Similarity to Gingrich controversy

The Pennsylvania case is similar to a well-publicized wiretapping of cell-phone conversations between leading Congressional Republicans in 1996.

Rep. John Boehner, an Ohio Republican, was talking to House Republican leaders when a Florida couple picked up the call on their scanner, taped it and gave it to Democratic House Ethics Committee member Jim McDermott of Seattle, who publicized the tape. The conversation involved the ethics panel's finding against then House Speaker Newt Gingrich. The Florida couple pleaded guilty to wiretapping and paid fines.

Boehner sued McDermott claiming his Fourth Amendment privacy rights were violated. McDermott said he had a First Amendment right to use the information any way he saw fit. Boehner lost in the trial court, but the D.C. Circuit Court of Appeal overruled the lower court, ruling that McDermott's First Amendment rights were not violated. That case did not reach the U.S. Supreme Court.

The phone call

Bartnicki and Kane belonged to a Pennsylvania teacher's union involved in contentious contract negotiations with the Wyoming Valley West School District.

In May 1993, Bartnicki called Kane on her cellular telephone to discuss whether to settle for a 3-percent salary increase proposed by the district or hold out for a 6-percent raise the union wanted, court records show.

Angry that district officials had discussed terms of their deal with reporters, Kane told Bartnicki, "We're gonna have to go to their homes ... to blow off their front porches, we'll have to do some work on some of those guys."

Someone whose identity remains a mystery to this day tapped into the call, taped it and left the tape in the mailbox of Jack Yocum, the head of a local group opposed to the teachers' demand, court papers show.

After recognizing the voices, Yocum gave the tape to local radio personality Frederick Vopper, who played it several times on his news-talk show. Local television stations also played the tape and newspapers published the transcripts.

Neither Yocum nor Vopper nor the radio stations know who intercepted the call and neither did they have any role in the illegal wiretap, according to prior court rulings in the matter.

Case goes to federal court

Bartnicki and Kane sued Vopper, Yocum and two radio stations that carried Vopper's news-talk show in Pennsylvania federal court.

The lawsuit, which sought more than $50,000 in damages, alleged that the defendants violated federal and Pennsylvania wiretapping laws, which allow affected parties to file lawsuits and seek monetary fines, court papers show.

In addition to penalizing those who tap into "wire, oral or electronic" communications, the statutes provide penalties for those who publicize information knowing someone else obtained it by illegally eavesdropping.

Vopper and the radio stations argued that the laws had a chilling effect on their First Amendment right to report the news in the public interest. Yocum also invoked the First Amendment, saying the laws prevented him from speaking freely, according to lower-court rulings.

In June 1996, the trial court ruled in favor of Bartnicki and Kane. The defendants can be held liable because the wiretapping laws do not violate the First Amendment, the judge ruled, adding that the laws were designed to "protect wire and oral communications and an individual's privacy interest."

The media and Yocum appeal

Vopper, Yocum and the radio stations appealed to the 3rd U.S. Circuit Court of Appeals in Philadelphia.

The federal government joined the case when it reached the appeals court, siding with Bartnicki and Kane in a bid to prevent the wiretapping laws from being overturned.

The appeals court narrowed the issues in the case to a single question: Whether people's free-speech rights shield them from wiretapping penalties if they "use or disclose" conversations they knew were illegally obtained -- even if they had no role in getting the information.

The appeals court's majority ruling

In December 1999, the appeals court ruled 2-1 in Vopper's and Yocum's favor, saying the laws placed an unfair burden on their free speech rights.

Judge Dolores Sloviter wrote in the majority opinion that wireless privacy would be better preserved if the authorities penalized whoever did the actual interception.

"We are also concerned that the provisions will deter significantly more speech than is necessary," she wrote.

"Reporters often will not know the precise origins of information they receive from witnesses and other sources, nor whether the information stems from a lawful source," she added.

Sloviter also differentiated Bartnicki from the case involving Gingrich because the Bartnicki-Kane call was aired in the public interest, while McDermott used the tape for partisan purposes.

The lone dissent

In a dissent, Judge Louis Pollak wrote: "Unless disclosure is prohibited, there will be an incentive for illegal interceptions."

He also rejected the argument that the wiretapping laws limited journalists' ability to do their jobs.

People's privacy is paramount, he said, adding that a "responsible journalist" would not seek to publish or air an "apparently newsworthy conversation" without first checking whether the information had been obtained legally.

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