Newt Gingrich, the Martins, Congressman McDermott, et. al.

 

Some of you may have followed the controversy over the interception of a cellular phone call involving Newt Gingrich. While it is not, strictly speaking, a computer crime case, it does involve issues of privacy and the Electronic Communication and Privacy Act, which we will be encountering shortly in connection with Steve Jackson, so I thought it might be worth discussing the case in class tomorrow. Here are some questions worth thinking about:

Did the Martins violate the act? If so, what penalty are they liable for? Does it depend on what version of the facts you believe?

Assuming that Congressman McDermott is the one who leaked the contents of the tape to the news media, did you violate the act? What penalty is he liable for?

What about the newspapers (and CNN webbed news!) which printed quotations from, or a summary of, the tape? Are they in violation?

A rough sketch of the facts (you can get more detailed information off CNN's web site)

 

1. The Martins intercepted and tape recorded a cellular phone conversation involving Newt Gingrich and some other Republican political types discussing how they should respond to the ethics committee hearing. The Martins say they were recording it for their unborn grandchild, so that when he got older they could play him tapes of famous people talking. They said they recorded it with a recently purchased police scanner. The Martins are said to be active in local Democratic politics.

2. The Martins took the tape to their local (Democratic) congressional representative, and were advised to pass it on to Congressman McDermott, who is on the Ethics Committee. They did so.

3. Someone, presumably McDermott, leaked the tape to the news media.

4. Critics of Gingrich alleged, and supporters denied, that the tape showed Gingrich violating an agreement he had made with the ethics committee not to orchestrate a campaign in his defense.

5. Some commentators claim that the Martins' account is implausible--that it would have required some technical expertise to make that good a recording of an intercepted phone call, especially given that scanners currently sold are not supposed to be able to scan the relevant frequencies.

Here is the relevant chunk of the ECPA:

 

(a) intentionally intercepts, endeavors to intercept, or procures any

other person to intercept or endeavor to intercept, any wire, oral, or

electronic communication;

 

...

 

(c) intentionally discloses, or endeavors to disclose, to any other

person the contents of any wire, oral, or electronic communication,

knowing or having reason to know that the information was obtained

through the interception of a wire, oral, or electronic communication in

violation of this subsection; or

 

(d) intentionally uses, or endeavors to use, the contents of any wire,

oral, or electronic communication, knowing or having reason to know that

the information was obtained through the interception of a wire, oral,

or electronic communication in violation of this subsection;

 

shall be punished as provided in subsection (4) or shall be subject to

suit as provided in subsection (5).

 

(4)(a) Except as provided in paragraph (b) of this subsection or in

subsection (5), whoever violates subsection (1) of this section shall be

fined under this title or imprisoned not more than five years, or both.

 

 

(b) If the offense is a first offense under paragraph (a) of this

subsection and is not for a tortious or illegal purpose or for purposes

of direct or indirect commercial advantage or private commercial gain,

and the wire or electronic communication with respect to which the

offense under paragraph (a) is a radio communication that is not

scrambled or encrypted, then--

 

...

 

(ii) if the communication is the radio portion of a cellular telephone

communication, a public land mobile radio service communication or a

paging service communication, the offender shall be fined not more than

$500.