Monday, September 27, 2010

Wiretapping in the iPhone age

So this is how people treat each other in the modern age. This case arises from a wills and estates dispute. Various family members, including in-laws, were visiting a dying mother. They met in the kitchen to discuss their different intentions about mom's will. For strategic advantage, someone tape-recorded someone else on an iPhone without his knowledge.

The case is Caro v. Weintraub, decided on August 13. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 makes it illegal to wiretap or record an oral communication for the purpose of committing a crime or a tort. The guy who was taped can sue the taper.

Caro cannot sue family member Weintraub. The Second Circuit (Cabranes, Wesley and Livingston) agrees that Caro is a "party" to the communication under the statute even though others were in the room. But in order to proceed with his case against Weintraub, Caro has to show that the conversation was intercepted "for the purpose of committing any criminal or tortious act." Here's the dilemma for the Second Circuit:

whether Title III requires that the claimant assert that the recording occurred with a separate and independent tortious intent, or whether the necessary tortious intent can be inferred from the act of recording itself. In other words, must a plaintiff plead that the defendant had intent to use the illicit recording to commit a tort beyond the act of recording illicitly or may the defendant merely have the intent to record and that alone is sufficient?

Other Circuits have taken up this issue. They have all held that the defendant must intend to use the illicit recording to commit a tort or a crime beyond the act of recording itself, such as blackmail or some other harmful act. The secret recording itself is not the requisite tort or crime. The Second Circuit adopts that view and therefore holds that Caro cannot sue Weintraub. While Caro argues that the independent tort was the violation of his privacy rights under Connecticut law, unfortunately for Caro, state privacy law does not reach that far. The closest privacy interest that Caro might assert is the "invasion of privacy by intrusion upon the seclusion of another." But Connecticut law recognizes no such right. Caro cannot sue Weintraub under Title III.

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