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FC: Police dept needs warrant to monitor officer's pager, court says
From: Declan McCullagh <declan () well com>
Date: Mon, 14 May 2001 09:45:13 -0400

[This seems to be an interesting case, but of limited practical
significance. What police departments, at least in the sixth circuit,
will do now is simply obtain a warrant, or, as this court points out,
"give notice to officers that random monitoring of their
department-issued pagers was possible." --Declan]

---

http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=01a0157p.06
   
            ELECTRONIC CITATION: 2001 FED App. 0157P (6th Cir.)
   
                           File Name: 01a0157p.06
   
                       UNITED STATES COURT OF APPEALS
   
                           FOR THE SIXTH CIRCUIT
   
                             _________________
   
                                David Adams,
                                      
                                 Plaintiff-Appellant,
                                      
                                          v.
                                      
    City of Battle Creek, a municipal corporation; Jeffrey P. Kruithoff,
                               an individual,
                                      
                                Defendants-Appellees,
                                No. 99-1543
                                      
                Appeal from the United States District Court
   
           for the Western District of Michigan at Grand Rapids.
   
              No. 98-00233--David W. McKeague, District Judge.
   
                           Argued: August 8, 2000
   
                      Decided and Filed: May 11, 2001
   
           Before: MERRITT, KRUPANSKY, and BOGGS, Circuit Judges.
   
                             _________________
   
                                  COUNSEL
   
   ARGUED: Marshall W. Grate, ROBERTS, BETZ & BLOSS, Grand Rapids,
   Michigan, for Appellant. John Patrick White, VARNUM, RIDDERING,
   SCHMIDT & HOWLETT, Grand Rapids, Michigan, for Appellees. ON BRIEF:
   Marshall W. Grate, ROBERTS, BETZ & BLOSS, Grand Rapids, Michigan, for
   Appellant. John Patrick White, VARNUM, RIDDERING, SCHMIDT & HOWLETT,
   Grand Rapids, Michigan, Clyde J. Robinson, OFFICE OF THE CITY
   ATTORNEY, Battle Creek, Michigan, for Appellees.
   
        MERRITT, J., delivered the opinion of the court, in which BOGGS,
   J., joined. KRUPANSKY, J. (pp. 11-22), delivered a separate opinion
   concurring in part and dissenting in part.
   
                             _________________
   
                                  OPINION
   
                             _________________
   
        MERRITT, Circuit Judge. With certain exceptions, the federal
   wiretap act criminalizes and creates civil liability for intentionally
   intercepting electronic communications without a judicial warrant.
   This case was brought under the federal wiretapping act, known as the
   Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2522. It
   raises the question of whether the police department may tap a police
   officer's pager without a warrant or notice to the officer. The police
   department, through use of a duplicate or "clone" pager, tapped
   without a warrant the plaintiff's pager provided by the department
   because it erroneously thought he was assisting drug dealers. The case
   turns on what is meant when the Act uses the phrase "in the ordinary
   course of business" to create two exceptions to the prohibition
   against wiretapping.
   
        In the present case it is both clear and conceded that the
   definition of "intercept" in the Act includes pagers within the
   language "acquisition of the contents of any . . . electronic . . .
   device."(1) Then, in the definition section for "electronic device,"
   the statute creates two "in-the-ordinary-course-of-business"
   exceptions to wiretap liability. The scope and meaning of these two
   exceptions are up for interpretation in this appeal. The two
   exceptions are not altogether clear:
   
          (5) "electronic, mechanical, or other device" means any device
     or apparatus which can be used to intercept a wire, oral, or
     electronic communication other than -
     
     (a) any telephone or telegraph instrument, equipment or facility,
     or any component thereof, (i) furnished to the subscriber or user
     by a provider of wire or electronic communication service in the
     ordinary course of its business and being used by the subscriber or
     user in the ordinary course of its business or furnished by such
     subscriber or user for connection to the facilities of such service
     and used in the ordinary course of its business; or (ii) being used
     by a provider or wire or electronic communication service in the
     ordinary course of business, or by an investigative or law
     enforcement officer in the ordinary course of his duties.
     
   18 U.S.C. § 2510(5) (emphasis added).
   
        The first problem is what the underlined phrase "other than"
   (normally an adverbial phrase, see Webster's Third Int'l Dict. (1958))
   is supposed to modify. Does it modify the immediately preceding action
   "to intercept [an] . . . electronic device," or does it act as an
   adjective, modifying "device or apparatus" or does it modify some
   other action or thought not expressed in clear language? The second
   problem is: does the use of "in-the-ordinary-course-of-business"
   language, as an exception, imply, and therefore mean, that the tapping
   of the communication is so routine, customary or well accepted that
   the parties to the tapped communication would, should or did know of
   the tap. We will deal with these two issues of interpretation below.
   
        1. The Meaning of the Phrase "Other Than." - There is no
   discussion in the case law of what the phrase "other than" in the
   statutory definition of "electronic, mechanical or other device" is to
   modify. Its dictionary label as an adverbial phrase would indicate
   that it is to modify the immediately preceding verb phrase "to
   intercept a wire, oral, or electronic communication." This does not
   make sense when read with the language that follows it.
   
        If "other than" modifies "used to intercept . . . electronic
   communication,"the scope of the "other than" exception would be as
   broad as the statute itself. This means, therefore, that "other than"
   must modify the nouns "device or apparatus." The language immediately
   following "other than" is "any telephone or telegraph, or any
   component thereof," all of which are also nouns. A better word choice
   than the "other than" phrase probably would have been "excluding"
   because subparts (a) and (b) to § 2510 (5) are exclusions to the main
   definition. In any event, the cases discussing these exceptions apply
   "other than" this way, and it is the only way that makes sense.
   
        2. Exceptions to Liability. - We conclude that the exceptions do
   not apply to this case. Both the "ordinary course of business"
   exception, or "business use" exception as it is also called, as well
   as the law enforcement exception, require that the interception of a
   communication be undertaken by employers or law enforcement agencies
   in the ordinary course of their businesses using equipment provided by
   a communications carrier as part of the communications network. For
   this exception to apply, we must find, first, that the equipment used
   to make the interception be "furnished to the subscriber or user by a
   provider of wire or electronic communication service in the ordinary
   course of its business and being used by the subscriber or user in the
   ordinary course of its business . . ." § 2510(5)(a)(i). Although
   plaintiff raises the issue of whether a clone pager fits within the
   definition prescribed in the exception, it is clear that the clone
   pager, a piece of electronic communication equipment, was provided to
   the City by MobileComm, a Bell South company, in the ordinary course
   of its business as a provider of wire and electronic communication
   services. We find, as did the district court, that the first part of
   the exception is met.
   
        The second part of the exception requires that the clone pager be
   used in "the ordinary course" of the police department's business.
   "Ordinary course of business" is not defined in the statute, but it
   generally requires that the use be (1) for a legitimate business
   purpose, (2) routine and (3) with notice. There is some disagreement
   in the case law about whether "covert" monitoring can ever be in the
   "ordinary course of business." Although we do not find that the
   statute requires actual consent for the exception to apply, we do hold
   that monitoring in the ordinary course of business requires notice to
   the person or persons being monitored. Because it is undisputed here
   that plaintiff was not given any notice that his pager was being
   monitored, the exceptions cannot apply.
   
        Most courts interpreting these exceptions have held that advance
   notice in some form is necessary. "What is ordinary is apt to be
   known; it imports implicit notice." Amati v. City of Woodstock, 176
   F.3d 952, 955 (7th Cir.), cert. denied, 120 S. Ct. 445 (1999). In
   Bohach v. City of Reno, 932 F. Supp. 1232 (D. Nev. 1996), police
   officers claimed that the police department's retrieval of stored
   messages generated by their pagers was a violation of the Act. The
   court held that the officers had no reasonable expectation of privacy
   when the police department warned pager users in advance that their
   messages would be logged on the network. In Sanders v. Robert Bosch
   Corp., 38 F.3d 736, 740-42 (4th Cir. 1994), the Fourth Circuit held
   that recording all telephone conversations on certain lines after bomb
   threats were received by the company was not in the ordinary course of
   business where the employees did not receive notice of the recording.
   
        Defendants here did not routinely monitor officers' pagers or
   give notice to officers that random monitoring of their
   department-issued pagers was possible. We disagree with defendants to
   the extent that they contend that plaintiff impliedly consented to the
   interception of his pages by the clone pager simply because he
   accepted and used a department-issued pager. The general policy of the
   department that department-issued equipment, which includes the pager,
   was not to be "converted to personal use" cannot provide the necessary
   notice to officers to find consent to surreptitious interception of
   their messages by clone pagers. The so-called policy prohibiting
   personal use cannot form an after-the-fact justification for
   intercepting plaintiff's pager where the policy had not been enforced
   and the department conceded it was aware that pagers were used by many
   members of the force for personal use.
   
        We do not find any need under the facts presented here to analyze
   the "business use" and "law enforcement" exceptions separately.
   Congress most likely carved out an exception for law enforcement
   officials to make clear that the routine and almost universal
   recording of phone lines by police departments and prisons, as well as
   other law enforcement institutions, is exempt from the statute. See
   First v. Stark Cnty. Bd. of Comm'rs, No. 99-3547, 2000 WL 1478389 (6th
   Cir. Oct. 4, 2000). Such a system routinely and indiscriminately
   records all phone activity in and out of the police department. This
   practice is well known in the industry and in the general public, and
   the courts have ruled that even prisoners are entitled to some form of
   notice that such conversations may be monitored or recorded. United
   States v. Paul, 614 F.2d 115 (6th Cir. 1980); see also, e.g., United
   States v. Van Poyck, 77 F.3d 285 (9th Cir. 1996) (detention center);
   United States v. Daniels, 902 F.2d 1238, 1245 (7th Cir. 1990); United
   States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987); Campiti v. Walonis,
   611 F.2d 387 (1st Cir. 1979)(monitoring of specific inmate call,
   without regulation or notice, and not routinely done, violates
   statute).
   
        3. Municipal Liability Under the Privacy Act. - Plaintiff seeks
   to hold the City liable under the wiretapping act, as well as Jeffrey
   Kruithoff, a police department employee. Defendants raise the question
   of whether the City is a "person" for purposes of the Act. The statute
   defines "person" as "any employee, or agent of the United States or
   any State or political subdivision thereof, and any individual,
   partnership, association, joint stock company, trust or corporation."
   18 U.S.C. § 2510(6).
   
        Most courts addressing the issue have held that the 1986
   amendments indicate that a governmental entity may be liable in a
   civil suit under the Act. Organizacion JD Ltda.. v. United States
   Dep't of Justice, 18 F.3d 91, 94-95 (2d Cir. 1994); Conner v. Tate,
   No. Civ. A. 1:00-CV-1723TW, ___ F. Supp. 2d ___, 2001 WL 128449, at
   **2-3 (N.D. Ga. Feb. 9, 2001); Dorris v. Absher, 959 F. Supp. 813,
   819-20 (M.D. Tenn. 1997) (municipal liability exists), aff'd in part
   on other grounds and rev'd in part, 179 F.3d 420 (6th Cir. 1999)
   (claims against county were settled prior to appeal and therefore not
   addressed on appeal); PBA Local No. 38 v. Woodbridge Police Dep't, 832
   F. Supp. 808, 822-23 (D.N.J. 1993).
   
        Only the Seventh Circuit has ruled to the contrary. Amati v. City
   of Woodstock, 176 F.3d 952, 956 (7th Cir.), cert. denied, 120 S. Ct.
   445 (1999). It based its cursory decision to exempt governmental
   entities from liability under the Act solely on the plain language of
   the definition of "person" in the statute, which does not expressly
   include governmental entities; but it did not deal with the meaning of
   the word "entity." Finding no ambiguity, it refused to look to the
   legislative history. But we look to the legislative history in order
   to give meaning to the word "entity," which was added to the
   definition in 1987.
   
        The provision of the Act providing for civil liability, section
   2520,(2) was amended in 1987 and made part of the 1986 Privacy Act.
   The amendment added the words "or entity" to those who may be held
   liable under the Act. The addition of the words "entity" can only mean
   a governmental entity because prior to the 1986 amendments, the
   definition of "person" already included business entities. In order
   for the term not to be superfluous, the term "entity" necessarily
   means governmental entities. As support for this view, we note that
   the amendment added the same language to the civil liability provision
   for interception of stored wire and electronic communications under 18
   U.S.C. § 2707(a). The Senate Committee Report summarizing § 2707, the
   parallel section for liability for intercepting stored communications,
   specifically states that the word "entity" includes governmental
   entities. S. Rep. No. 541, 99th Cong., 2d Sess. 43 (1986), reprinted
   in 1986 U.S.C.C.A.N. 3555, 3597.
   
        Based on the amendments to the statute and the legislative
   history behind them, as well as the case law considering the issue, we
   hold that governmental entities may be liable under 18 U.S.C. § 2520.
   Finding that a municipality may be liable under the Act, we conclude
   that questions of material fact remain as to who was involved in
   authorizing the interception and how it arose. Summary judgment is not
   appropriate on this issue at present because the facts are
   undeveloped. We remand it to the district court for further
   development of this issue.
   
        4. The Fourth Amendment. - Plaintiff also claims that monitoring
   his pager through use of the clone pager constitutes an illegal
   "search and seizure" in violation of his Fourth Amendment rights,
   actionable through 42 U.S.C. § 1983. The defendants argued, and the
   district court agreed, that plaintiff had no right to privacy in his
   department-issued pager and that no Fourth Amendment violation
   occurred.
   
        Supreme Court precedent makes it clear that courts should avoid
   unnecessary adjudication of constitutional issues. Ashwander v.
   Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J.,
   concurring) ("The Court will not pass on a constitutional question,
   although properly presented by the record, if there is also present
   some other ground upon which the case may be disposed of."). Accord
   United States v. Vaughn, No. 97-3539, 1998 WL 774004, *3 (6th Cir.
   Oct. 13, 1998). Where a statutory or nonconstitutional basis exists
   for reaching a decision, as it does here, it is not necessary to reach
   the constitutional issue.
   
        One application of this doctrine is the principle of statutory
   construction that states that a comprehensive statute, like the
   federal wiretapping statute, designed to protect specific
   constitutional values may be read to provide the exclusive remedies in
   the field so long as the statute itself suffers no constitutional
   infirmity. Sutherland Statutory Construction § 499-500 (1984 ed.).
   See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973) (although
   § 1983 by its terms was literally applicable to prisoners' actions,
   some actions lie under habeas corpus as "the more specific act"); Lee
   v. Hughes, 145 F.3d 1272, 1276-77 (11th Cir. 1998) (given
   comprehensive statutory scheme established by Civil Service Reform
   Act, federal officer was precluded from raising § 1983 claim); NAACP,
   Detroit Branch v. Detroit Police Officers Ass'n, 900 F.2d 903, 912-13
   (6th Cir. 1990) (plaintiff cannot bring claims under §§ 1981 and 1983
   that fall within Title VII's parameters). The Electronic
   Communications Privacy Act is part of detailed legislative scheme
   under Title III of the Omnibus Crime and Control Act of 1986. The
   legislation seeks to balance privacy rights and law enforcement needs,
   keeping in mind the protections of the Fourth Amendment against
   unreasonable search and seizure. Congress made the Act the primary
   vehicle by which to address violations of privacy interests in the
   communication field. Berry v. Funk, 146 F.3d 1003, 1013 (D.C. Cir.
   1998) (citing City of Milwaukee v. Illinois, 451 U.S. 304, 314
   (1981)). No claim is made that the statute is unconstitutional or that
   it is less protective of privacy rights than the Fourth Amendment. The
   plaintiff makes no claim that Fourth Amendment rights, as they relate
   to wiretapping, are broader or more comprehensive than the federal
   statute. There is no difference between the conduct relevant to
   plaintiff's statutory claim and the conduct relevant to his
   constitutional claim. Because no argument is made that the substantive
   or remedial standards provided by the Fourth Amendment differ from the
   federal statute, we do not reach any question of interpretation under
   the Fourth Amendment. All such constitutional issues are pretermitted.
   
        5. Qualified Immunity for Kruithoff. - As an alternative to
   affirming summary judgment, Kruithoff urges us to affirm the district
   court as to him on the ground of qualified immunity for both the
   Privacy Act and Fourth Amendment claims. The district court did not
   rule on this defense because it found no liability and we generally do
   not address issues that were not addressed below. In addition, a
   factual dispute remains as to Kruithoff's role, if any, in authorizing
   the clone pager. Two witnesses testified that he authorized its use,
   but Kruithoff denies this. Qualified immunity is generally not
   appropriate where questions of fact remain. Johnson v. Jones, 515 U.S.
   304, 319-20 (1995).
   
                                 CONCLUSION
   
        For the foregoing reasons, we reverse the district court's grant
   of summary judgment to defendants, affirm the denial of plaintiff's
   partial motion for summary judgment and remand to the district court
   for further proceedings.
   
               ______________________________________________
   
                   CONCURRING IN PART, DISSENTING IN PART
   
               ______________________________________________
   
        KRUPANSKY, Circuit Judge, concurring in part and dissenting in
   part. The panel majority has reversed the district court's grant of
   summary judgment to the defendant-appellees, finding that the
   electronic monitoring at issue in this case did not fall within one of
   the statutory exclusions provided by the federal wiretapping laws. In
   so doing, the panel majority has disregarded the plain language of the
   controlling statute by imputing a notice requirement into the ordinary
   course of business and law enforcement tests of the federal
   wiretapping laws. Because I am persuaded that the officers of the City
   of Battle Creek Police Department monitored David Adams's use of his
   alphanumeric pager in the ordinary course of its business, see 18
   U.S.C. § 2510(5)(a)(i), and in the ordinary course of exercising their
   law enforcement duties, see 18 U.S.C. § 2510(5)(a)(ii), I respectfully
   dissent.
   
        Plaintiff-Appellant David Adams ("Adams") has served as a law
   enforcement officer(1) for Defendant-Appellee City of Battle Creek
   Police Department since 1986. In conjunction with his position as a
   law enforcement officer, Adams was assigned an alphanumeric pager.(2)
   Numerous allegations of complicity in drug activity have marked his
   tenure: (1) in 1989, his patrol partner was charged with drug
   trafficking; (2) a number of informants alleged that Adams had
   protected drug dealers; (3) Adams had appeared to maintain a close
   friendship with a local drug dealer. However, investigators had failed
   to surface substantial evidence of wrongdoing by Adams.
   
        In 1995, Sgt. Patrick Alspaugh ("Alspaugh"), head of the Special
   Investigations Unit,(3) became increasingly concerned that the
   department's drug investigations were being compromised by an inside
   source. On two separate occasions, acting on reliable intelligence(4)
   that drug transactions were ongoing at certain residences, police
   officers arrived at those locations to find that there were no drugs
   on the premises. On a third occasion, while attempting to search a
   residence, officers were fired upon by perpetrators attempting to flee
   upon the officers' arrival. Given the nature of the targets' ability
   to evade police investigation, Alspaugh reasoned that a member of the
   police department had been informing the targets of the investigation
   before the officers were able to arrive and conduct their search.
   
        Alspaugh had assigned Officer Kathy Klomparens ("Klomparens"), a
   member of the Special Investigations Unit, to these cases. Alspaugh
   subsequently learned that Adams and Klomparens had had frequent
   contacts outside of the workplace. Alspaugh also learned that Adams
   may have been a close confidant of one of the targets of the
   unsuccessful narcotics investigations. Recalling the earlier
   allegations against Adams, Alspaugh requested of Jeffrey Kruithoff
   ("Kruithoff"), then-Deputy Chief of Police, that Adams' official pager
   be cloned in order to determine if Klomparens was informing Adams of
   the status of the active investigations. The parties have disputed
   whether Kruithoff authorized the use of the cloned pager.(5)
   
        As Adams was paged by unidentified third parties, Alspaugh wrote
   down the numbers. He then attempted to determine if any of the numbers
   matched any of Klomparens's personal phone or pager numbers. Alspaugh
   intercepted one text message which informed Adams of the time and
   place of a police funeral. Because the cloned pager had not provided
   any incriminating information, Alspaugh destroyed the list after four
   or five days and discontinued monitoring the cloned pager. Alspaugh
   then contacted a member of the Federal Bureau of Investigation, who
   informed him that Alspaugh's surreptitious monitoring of Adams' pager
   may have been illegal. Alspaugh promptly returned the cloned pager to
   the telecommunications concern.
   
        In 1996, Michael Lind, an intelligence officer,(6) informed Adams
   of the surreptitious monitoring of his pager. Until that time, no
   member of the police department had informed Adams that he had been
   the target of an investigation into the possibility that he had been
   aiding drug traffickers in their attempts to evade police detection.
   
        On March 9, 1998, Adams filed the instant complaint,(7) alleging
   seven counts against defendants Kruithoff, Pope,(8) and the City of
   Battle Creek Police Department (collectively "defendants"): (1)
   defendants had violated the Wire and Electronic Communications
   Interception Act, 18 U.S.C. § 2510, et seq.;(9) (2) defendants had
   infringed upon Adams' Fourth Amendment rights against unreasonable
   searchs and seizures; (3) defendants had violated Michigan's
   wiretapping statute; (4) defendants had invaded Adams privacy in
   violation of Michigan law; (5) defendants had violated Michigan's
   civil rights act; (6) defendants had intentionally inflicted emotional
   distress in violation of Michigan law; (7) Kruithoff's affair with
   Adams' wife had resulted in a loss of consortium to Adams in violation
   of Michigan law.(10) The parties filed cross- motions for summary
   judgment. The lower court granted the defendants' motion and denied
   the plaintiff's motion. The district court held that the defendants'
   surreptitious monitoring fell within the business use exception
   contained in the wiretapping act:
   
          The sensitive nature of information relating to drug
     trafficking investigations is obvious; maintenance of its
     confidentiality essential to the success of the mission and safety
     of law enforcement officers. Suspicion that plaintiff may have been
     involved in leaking drug raid information to drug traffickers was
     understandably a matter of grave concern to Detective Sergeant
     Patrick Alspaugh, Supervisor of the Special Investigations Unit,
     whose concern prompted the cloning of plaintiff's pager. It was
     also a matter of much greater significance to the police
     department's "business" than an employee's improper use of a
     telephone for personal purposes. Moreover, the extent of the
     intrusion was minimal. The monitoring was based on particularized
     suspicion of wrongdoing, lasted only 10-14 days, and yielded, with
     the exception of one verbal message concerning a police memorial
     service, merely a listing of telephone numbers from which plaintiff
     was called. No monitoring of conversations took place. The recorded
     telephone numbers were found not to be incriminating and the
     monitoring was voluntarily discontinued.
     
          Under these circumstances, as to which there is no genuine
     issue of material fact, the Court holds the subject monitoring of
     plaintiff's pager, limited in duration and minimally intrusive, was
     justified by a valid business purpose.
     
   Adams v. City of Battle Creek, et al., No. 98cv233, slip op. at 8-9
   (W.D. Mich. April 28, 1999). The district court further held that
   Adams' Fourth Amendment rights were not violated by the defendants'
   surreptitious monitoring as he had no reasonable expectation of
   privacy in the use of his departmentally-provided pager.(11) This
   appeal timely followed.
   
        Summary judgment should "be rendered ... if the pleadings,
   depositions, answers to interrogatories, and admissions on file,
   together with the affidavits, if any, show that there is no genuine
   issue as to any material fact and that the moving party is entitled to
   a judgment as a matter of law." Federal Rule of Civil Procedure 56(c);
   Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary
   judgment will not lie if the dispute about a material fact is
   'genuine,' that is, if the evidence is such that a reasonable jury
   could return a verdict for the nonmoving party." See Anderson v.
   Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Ezzo's Investments,
   Inc. v. Royal Beauty Supply, Inc., 243 F.3d 980, 985 (6th Cir. 2001).
   Courts presented with motions for summary judgment must consider the
   tendered evidence, and the reasonable inferences therefrom, in the
   light most favorable to the non-movant. See Matsushita Elec. Indus.
   Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 588 (1986); Redding v.
   St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The reviewing court
   conducts a de novo examination of a district court's order awarding
   summary judgment. See American Medical Security, Inc. v. Auto Club
   Ins. Ass'n of Mich., 238 F.3d. 743, 749 (6th Cir. 2001).
   
        Wiretapping or monitoring electronic communications has been
   illegalized and is subject to civil and criminal penalties. See 18
   U.S.C. § 2511(1)(a) ("Except as otherwise specifically provided in
   this chapter 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 [is subject to
   penalties described in 18 U.S.C. § 2511(4)(a).]"). In defining the
   term "electronic, mechanical, or other device,"(12) Congress excluded
   certain types of non-consensual monitoring from the purview of the
   statute:
   
     "electronic, mechanical, or other device" means any device or
     apparatus which can be used to intercept a wire, oral, or
     electronic communication other than--
     
          (a)any telephone or telegraph instrument, equipment or
     facility, or any component thereof, (i) furnished to the subscriber
     or user by a provider of wire or electronic communication service
     in the ordinary course of its business and being used by the
     subscriber or user in the ordinary course of its business or
     furnished by such subscriber or user for connection to the
     facilities of such service and used in the ordinary course of its
     business;(13) or (ii) being used by a provider of wire or
     electronic communication service in the ordinary course of its
     business, or by an investigative or law enforcement officer in the
     ordinary course of his duties[.](14) 
     
   18 U.S.C. § 2510(5).(15)
   
        The panel majority has determined that those exceptions apply
   only when a legitimate purpose supports the monitoring, the monitoring
   is routine, and the monitoring officials have given actual notice to
   those being monitored.(16) While I agree that a legitimate
   justification is required, nevertheless, I do not find support in the
   statute or the associated case law for requiring in all circumstances
   advance notice or routine monitoring.
   
        Courts have required notice of the possibility of monitoring in
   cases where the quantum of the asserted business or law enforcement
   interest is low. See, e.g., Sanders v. Robert Bosch Corp., 38 F.3d
   736, 741-742 (4th Cir. 1994) ("In short, there is no business reason
   asserted for the decision not to notify all the Guardsmark employees
   of the use of the voice logger."). However, when confronted with more
   substantial justifications, courts have permitted businesses to
   monitor without advance notice. See, e.g., Briggs v. American Air
   Filter Co., Inc., 630 F.2d 414, 420 n.9 (5th Cir. 1980) ("Since the
   specific justification advanced here is so closely tied to a
   legitimate business purpose, we have no hesitation holding that there
   is nothing extraordinary about McClure's act of listening in. Were the
   business justification less compelling, the absence of any company
   policy or prior warnings concerning use of company telephones might be
   more significant."); Arias v. Mutual Central Alarm Service, Inc., 202
   F.2d 553, 559 (2d Cir. 2000) ("Whether notice is required depends on
   the nature of the asserted business justification, and here, where the
   recording is at least in part intended to deter criminal activity, the
   absence of notice may more effectively further this interest."); Berry
   v. Funk, 146 F.3d 1003, 1009 ("[If] covert monitoring is to take place
   it must itself be justified by a valid business purpose, or, perhaps,
   at least must be shown to be undertaken normally.").(17)
   
        Moreover, the panel majority has ignored an express provision of
   the Wiretapping Act in holding that actual notice is required: the
   Wiretapping Act does not prohibit electronic eavesdropping where one
   of the parties has consented to the monitoring. See 18 U.S.C. §
   2511(1)(c) ("It shall not be unlawful under this chapter for a person
   acting under color of law to intercept a wire, oral, or electronic
   communication, where such person is a party to the communication or
   one of the parties to the communication has given prior consent to
   such interception."). Courts have determined that such consent may be
   explicit or it may be implied from the surrounding facts. See, e.g.,
   United States v. Workman, 80 F.3d 688, 692-94 (2d Cir. 1996); United
   States v. Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996). If the party
   has received advance notice of monitoring, then that party may
   ordinarily be said to have consented to the subsequent monitoring.
   Hence, by reading the business use and law enforcement exceptions to
   include actual notice, the panel majority has made those exceptions
   superfluous in light of the consent exception.(18) See Amati, 176 F.3d
   at 955 ("If there is actual notice, there will normally be implied
   consent. So if the 'ordinary course' exclusion required proof of
   notice, it would have no function in the statute because there is a
   separate statutory exclusion for cases in which one party to the
   communication has consented to the interception.") (citations
   omitted).
   
        Given the fact that the ordinary course exclusions require the
   reviewing court to engage in a reasonableness analysis as to the
   nature, scope, and justification of the monitoring, it is important to
   note the circumstances surrounding the instant monitoring. In order to
   maintain the integrity of their drug investigations,(19) the police
   department initiated surreptitious monitoring of Adams' departmental
   pager.(20) The monitoring was short-lived, effectuated no longer than
   required by its supporting purpose. The monitoring itself was hardly
   invasive as no personal messages were ever intercepted or recorded. In
   addition, because Adams had been informed that he was not to use
   departmental equipment for personal use, he had a limited expectation
   of privacy in the personal messages relayed by the pager. Moreover,
   Adams was aware that his equipment could be inspected at any time. It
   is true that Adams did not have specific notice that his pager could
   be monitored by the police department. However, in view of the
   seriousness of the justification proffered by the police department
   and the limited incursion on Adams' privacy interests, Alspaugh and
   Kruithoff were acting in the ordinary course of the department's
   business and of their law enforcement duties when they monitored
   Adams' pager by cloning it.(21)
   
        In enacting the Wiretapping Act, Congress did not intend to
   prohibit all wiretapping or electronic monitoring. Hence, it created
   two statutory exceptions to liability, both of which cover the
   monitoring sub judice. The law enforcement officers of the City of
   Battle Creek Police Department monitored Adam's departmental pager in
   order to safeguard the integrity of their investigations. A legitimate
   interest provided the impetus for the monitoring, which did not extend
   beyond that interest in its scope or length.(22) I would affirm the
   district court's judgment. I therefore respectfully dissent.(23)
   
   Footnotes
   
        1 Section 2510(4) says: "'intercept' means the aural or other
   acquisition of the contents of any wire, electronic, or oral
   communication through the use of any electronic, mechanical, or other
   device. . . ."
   
        2 18 U.S.C. § 2520 provides:
   
        Except as provided in 2511(2)(ii), any person whose wire, oral or
   electronic communication is intercepted, disclosed, or intentionally
   used in violation of this chapter may in a civil action recover from
   the person or entity which engaged in that violation such relief as
   may be appropriate.
   
        1 Until 1993, Adams served as a patrolman. In 1993, Adams was
   promoted to the position of detective.
   
        2 The police department had given Adams a copy of departmental
   policy which indicated "Department issued equipment, supplies and
   uniforms, will at no time be converted [to] personal use." The police
   department had notified Adams that "[it was] the policy of the Police
   Department to perform regular audits and inspections of all department
   issued equipment. These inspections ensure proper maintenance and use
   of all department equipment and supplies."
   
        3 The Special Investigations Unit of the City of Battle Creek
   Police Department is primarily responsible for narcotics
   investigations.
   
        4 The police department would station officers outside these
   residences. These officers would then monitor the residences in the
   hours preceding any given search.
   
        5 Kruithoff has claimed that then-Chief of Police Thomas Pope
   authorized the use of the cloned pager. As this matter has come before
   this court on an appeal of the district court's order granting
   defendants' motion for summary judgment, it will be assumed for the
   purposes of this opinion that Kruithoff authorized the use of the
   cloned pager.
   
        6 Lind had applied to law school in 1996 and had disclosed on his
   law school application that he may have criminally violated the
   federal wiretapping laws. Lind felt it necessary to apprise Adams of
   his possibly felonious conduct.
   
        7 In addition to learning of the monitoring, Adams discovered
   that Kruithoff had had an affair with Adams' wife in 1990. Adams has
   contended that this affair prompted the monitoring of Adams' cloned
   pager.
   
        8 All claims against Pope were voluntarily dismissed on February
   23, 1999.
   
        9 See 18 U.S.C. § 2511(a) ("Except as otherwise specifically
   provided in this chapter 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 [is
   subject to penalties described in 18 U.S.C. § 2511(4)(a).]").
   
        10 This claim was voluntarily dismissed on September 8, 1998.
   
        11 The district court dismissed Adams' other claims without
   prejudice as the district court declined to exercise supplemental
   jurisdiction over them in the absence of any federal claims. See 28
   U.S.C. § 1367(c).
   
        12 "'[I]ntercept' means the aural or other acquisition of the
   contents of any wire, electronic, or oral communication through the
   use of any electronic, mechanical, or other device." 18 U.S.C. §
   2510(4).
   
        13 This provision is normally referred to as the "business use
   exception" or the "extension phone exception."
   
        14 This provision is normally referred to as the "law enforcement
   exception" or the "prison phone exception."
   
        15 Law enforcement is the "business" of the City of Battle Creek
   Police Department. But see Amati, 176 F.3d at 955 ("[The business use
   exception] is intended for situations in which a business or other
   entity, presumably one not involved in law enforcement (for otherwise
   this exclusion would duplicate the one for eavesdropping in the
   ordinary course of law enforcement), records calls to or from its
   premises in order to monitor performance by its employees."). The
   panel majority has imputed to the law enforcement section a solitary
   purpose-that of excluding from the act's coverage the law enforcement
   practice of monitoring inmate phone calls- without any evidence that
   Congress intended that the exception be so limited. The cases which it
   has cited in support of that proposition have merely ruled that the
   law enforcement exception applies to inmate phone calls. None of the
   cases have limited the purview of the law enforcement exception to
   those circumstances.
   
        16 While the law enforcement exception has no such requirement,
   the business use exception requires that the electronic monitoring
   device be provided in the course of the provider's business. I agree
   with the panel majority's determination that the cloned pager was
   provided to the police department in the course of the provider's,
   MobileComm's, business. Adams' arguments to the contrary are
   unavailing.
   
        17 The panel majority cites Amati v. City of Woodstock, 176 F.3d
   952 (7th Cir. 1999), and Sanders v. Robert Bosch Corp., 38 F.3d 736
   (4th Cir. 1994), as support for their mandate that notice is required.
   Neither case supports requiring notice as a sine qua non element of
   the ordinary course test. In fact, Amati expressly held otherwise:
   "The plaintiffs argue that wiretapping cannot be 'in the ordinary
   course of law enforcement' unless there is express notice to the
   people whose conversations are being listened to. The statute does not
   say this, and it cannot be right." Amati, 176 F.3d at 955. The Sanders
   court's analysis makes clear that the court was balancing the asserted
   business interest against the employee's interest in advance notice:
   
     Covert use of a surveillance device must be justified by a valid
     business purpose. Here, the justification advanced for the ongoing
     interception of telephone calls, i.e., the fear of bomb threats,
     does not in any way explain the fact that Bosch failed to inform
     any Guardsmark personnel, other than the supervisors, of the use of
     the voice logger. In short, there is no business reason asserted
     for the decision not to notify all the Guardsmark employees of the
     use of the voice logger."
     
   Sanders, 38 F.3d at 741-42 (footnotes omitted). The panel majority has
   also cited a district court case, Bohach v. City of Reno, 932 F. Supp.
   1232 (D. Nev. 1996), which did not deal with the exclusions at issue
   here, but instead focused on 18 U.S.C. § 2701 which permits internet
   service providers to store and retrieve electronic messages. See
   Bohach, 932 F. Supp. at 1236-1237.
   
        18 The panel majority places talismanic reliance on the notion
   that the monitoring must be routine. However, that would encourage
   businesses to record all phone calls when the asserted business
   justification required only limited monitoring. Such a result would be
   an unnecessary infringement on the privacy of any "innocent
   bystanders." See Briggs, 630 F.2d at 420 n.9 ("A general practice of
   surreptitious monitoring would be more intrusive on employees' privacy
   than monitoring limited to specific occasions.").
   
        19 The department has provided numerous reports of allegations of
   Adams' involvement in drug activity. The fact that none of these
   allegations have been proven is not dispositive. Rather, the issue is
   whether, given the seriousness of these allegations and the harm which
   could occur to narcotics investigators if these allegations were true,
   defendants acted in the ordinary course of their duties.
   
        20 Adams has contended that the true motive for the cloning of
   the pager was far more involved than the purpose proffered by the
   appellees. Adams has alleged that Kruithoff monitored his activity
   because he had had an affair with Adams' wife a few years earlier.
   Indeed, Kruithoff has admitted having an affair with Adams' wife. And,
   for the purpose of reviewing the instant motion for summary judgment,
   it is reasonable to infer that Kruithoff indeed authorized the use of
   the cloned pager. However, it is undisputed that Alspaugh, not
   Kruithoff, raised concerns about Adams' possible role in sabotaging
   the drug investigations. It is undisputed that Alspaugh, not
   Kruithoff, maintained control of the cloned pager. Moreover, it is
   undisputed that Alspaugh did not provide Kruithoff (or anyone else)
   with a copy of the list he created during the course of the
   monitoring.
   
        21 The circumstances in Briggs provide a commercial analog to
   those in this case: the employer had a particularized suspicion that
   an employee had been providing company secrets to the competition; the
   employee had been warned not to disclose the secrets; and the
   monitored phone call was between the competitior and the employee. The
   Briggs Court found that "it is within the ordinary course of business
   to listen in on an extension phone for at least so long as the call
   involves the type of information he fears is being disclosed." Briggs,
   630 F.2d at 420.
   
        22 Because I find that the implicated activity is within the
   exceptions provided by the act, I do not reach the issue as to whether
   the act contemplates holding police departments liable for the
   malfeasance of their employees. In addition, because I find that the
   district court properly awarded summary judgment in favor of the
   defendants, I would affirm the lower court's consequent denial of the
   plaintiff's motion for summary judgment.
   
        23 I concur in the majority's disposition of the Fourth Amendment
   claim and the qualified immunity issue.



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