mailing list archives
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]
ELECTRONIC CITATION: 2001 FED App. 0157P (6th Cir.)
File Name: 01a0157p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
City of Battle Creek, a municipal corporation; Jeffrey P. Kruithoff,
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.
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.
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
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
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
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).
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
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
"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
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)
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
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
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
8 All claims against Pope were voluntarily dismissed on February
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. §
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
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
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
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.
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if it remains intact.
To subscribe, visit http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
- FC: Police dept needs warrant to monitor officer's pager, court says Declan McCullagh (May 14)