Nos. 99-1687 and 99-1728 

In the Supreme Court of the United States 
GLORIA BARTNICKI AND ANTHONY F. KANE, JR., 
PETITIONERS 

v. 
FREDERICK W. VOPPER, AKA FRED WILLIAMS, ET AL. 

UNITED STATES OF AMERICA, PETITIONER 

v. 
FREDERICK W. VOPPER, ET AL. 

ON WRITS OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

BRIEF FOR THE UNITED STATES 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
DAVID W. OGDEN 

Assistant Attorney General 
MICHAEL R. DREEBEN 

Deputy Solicitor General 
JEFFREY A. LAMKEN 

Assistant to the Solicitor 

General 
DOUGLAS N. LETTER 
SCOTT R. MCINTOSH 

Attorneys 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the imposition of civil liability under 18 U.S.C. 
2511(1)(c) and (d) for using or disclosing the contents of 
illegally intercepted communications, where the defendant 
knows or has reason to know that the interception was 
unlawful but is not alleged to have participated in or 
encouraged it, violates the First Amendment to the United 
States Constitution. 

(I) 

II 

PARTIES TO THE PROCEEDINGS 

Petitioners Gloria Bartnicki and Anthony F. Kane, Jr., 
were plaintiffs in the district court and appellees in the court 
of appeals. Petitioner United States of America appeared as 
an intervenor of right in the court of appeals pursuant to 28 
U.S.C. 2403(a). Respondents Frederick W. Vopper, a/k/a 
Fred Williams; Keymarket of NEPA, Inc., d/b/a WILK 
Radio; Lackazerne, Inc., d/b/a WGBI Radio; and Jack Yocum 
were defendants in the district court and appellants in the 
court of appeals. 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statutory provisions involved ..................................................... 

2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 

10 

Argument: 

Title III’s restriction on the use and disclosure of 
illegally intercepted communications is consistent 
with the First Amendment .................................................. 

15 

I. The application of Title III to disclosure of ille- 
gally intercepted communications by persons 
other than the wiretapper is subject to inter- 
mediate scrutiny ............................................................. 
16 

A. Intermediate scrutiny is appropriate where 
the statute neither regulates speech because 

of its message nor singles out speech for 
differential treatment ............................................. 

17 
B. Title III is subject to intermediate scrutiny 

because it is content neutral and has general 
applicability .............................................................. 20 

C. This Court’s cases do not require the appli- 
cation of strict scrutiny to Title III ..................... 

28 

II. Title III’s restrictions satisfy intermediate 
scrutiny ............................................................................. 33 

A. The restriction on use and disclosure 
furthers significant interests unrelated to the 
suppression of expression ...................................... 
33 

B. The restrictions on use and disclosure do not 
unnecessarily restrict expressive activities ....... 42 

(III) 

IV 

Table of Contents—Continued: 

Page 

C. Title III’s restrictions on use and disclosure 
do not impermissibly chill protected 

speech ........................................................................ 45 

Conclusion ....................................................................................... 47 

Appendix ......................................................................................... 1a 

TABLE OF AUTHORITIES 

Cases: 

Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) ............ 
26 

Berry v. Funk, 146 F.3d 1003 (D.C. Cir. 1998) ................. 
24 

Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 
1999), petition for cert. pending, No. 99-1709 ............... 
17, 37, 

38, 44 

Boos v. Barry, 485 U.S. 312 (1988) ..................................... 
21 
Bose Corp. v. Consumers Union of United States, 

Inc., 466 U.S. 485 (1984) ...................................................... 

46 

Branzburg v. Hayes, 408 U.S. 665 (1972) ........................... 
23 

Butterworth v. Smith, 494 U.S. 624 (1990) ........................ 
31 

Chandler v. United States Army, 125 F.3d 1296 
(9th Cir. 1997) ......................................................................... 
24 

Cincinnati v. Discovery Network, Inc., 507 U.S. 
410 (1993) ................................................................................. 
26 

City of Erie v. Pap’s A.M., 120 S. Ct. 1382 
(2000) .............................................................................. 
18, 19, 20 

City of Renton v. Playtime Theatres, Inc., 475 U.S. 
41 (1986) ................................................................................... 
21 

Clark v. Community for Creative Non-Violence, 
468 U.S. 288 (1984) ................................................................ 
19 

Cohen v. Cowles Media Co., 501 U.S. 663 (1991) ......... 
12, 25, 

26, 30 

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ............ 
22, 28, 
30, 31 

Denis v. LeClerc, 5 Am. Dec. 712, 1811 WL 986 
(La. Terr. Super. Orleans 1811) .......................................... 35 

V 

Cases—Continued: Page 

Dorris v. Absher, 959 F. Supp. 813 (M.D. Tenn. 
1997), aff ’d in part, rev’d in part, 179 F.3d 420 
(6th Cir. 1999) ......................................................................... 
24 

Edwards v. State Farm Ins. Co., 833 F.2d 535 
(5th Cir. 1987) ......................................................................... 
5 

Elkins v. United States, 364 U.S. 206 (1960) .................... 
42 

Estate of Ernest Hemingway v. Random House, 
244 N.E.2d 250 (N.Y. 1968) .................................................. 
27 

Florida Star v. B.J.F., 491 U.S. 524 (1989) ............... 
passim 

Fultz v. Gilliam, 942 F.2d 396 (6th Cir. 1991) .............. 
24, 37 

Gelbard v. United States, 408 U.S. 41 (1972) ................ 
4, 14, 

34, 43 

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .............. 
46 
Grand Jury, In re, 111 F.3d 1066 (3d Cir. 1997) ................ 
24 

Harper & Row, Publishers, Inc. v. Nation 

Enters., 471 U.S. 539 (1985) ............................... 

13, 27, 33, 34 

Hill v. Colorado, 120 S. Ct. 2480 (2000) ................... 
12, 19, 26 

Jaffee v. Redmond, 518 U.S. 1 (1996) ................................. 
35 

Katz v. United States, 389 U.S. 347 (1967) ............. 
33, 34, 43 

Konigsberg v. State Bar, 366 U.S. 36 (1961) ................. 
25, 30 

Lam Lek Chong v. United States Drug Enforce- 
ment Admin., 929 F.2d 729 (D.C. Cir. 1991) .................... 
22 

Landmark Communications, Inc. v. Virginia, 
435 U.S. 829 (1978) ..................................................... 
28, 30, 31 

New York Times Co. v. Sullivan, 376 U.S. 254 
(1964) ........................................................................................ 46 

New York Times Co. v. United States, 403 U.S. 
713 (1971) ................................................................................. 

29 

New York v. Ferber, 458 U.S. 747 (1982) ....................... 
14, 40 

Nixon v. Shrink Mo. Gov’t PAC, 120 S. Ct. 897 
(2000) ....................................................................... 
13, 27, 28, 41 

Novicki v. Cook, 946 F.2d 938 (D.C. Cir. 1991) ................ 
45 

Osborne v. Ohio, 495 U.S. 103 (1990) .................................. 
41 

Peavy v. WFAA-TV, No. 99-10272, 2000 WL 1051909 
(5th Cir. July 31, 2000) .......................................................... 17 

VI 

Cases—Continued: Page 

Procunier v. Martinez, 416 U.S. 396 (1974) ....................... 
19 

Reno v. ACLU, 521 U.S. 844 (1997) ................................... 
17 

Sable Communications of Cal., Inc. v. FCC, 
492 U.S. 115 (1989) ................................................................ 
17 

San Francisco Arts & Athletics, Inc. v. United 

States Olympic Comm., 483 U.S. 522 (1987) ................... 

19 

Seattle Times Co. v. Rhinehart, 467 U.S. 20 
(1984) ............................................................................. 
12, 22, 23 

Smith v. Daily Mail Publ’g Co., 443 U.S. 97 
(1979) ............................................................ 

13, 28, 30, 31, 32, 40 

Swidler & Berlin v. United States, 524 U.S. 399 
(1998) ........................................................................................ 35 

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 
(1994) ................................................................................ passim 

United States v. Bolin, 423 F.2d 834 (9th Cir.), 
cert. denied, 398 U.S. 954 (1970) ......................................... 

40 

United States v. Gardner, 516 F.2d 334 (7th Cir.), 
cert. denied, 423 U.S. 861 (1975) ......................................... 
40 

United States v. Giordano, 416 U.S. 505 (1974) ............... 
3, 5 

United States v. Jones, 542 F.2d 661 (6th Cir. 
1976) ......................................................................................... 3 

United States v. Nixon, 418 U.S. 683 (1974) ..................... 

34-35 

United States v. O’Brien, 391 U.S. 367 (1968) .............. 
11, 18, 

19, 26, 33, 42 

United States v. Playboy Entertainment Group, 
Inc., 120 S. Ct. 1878 (2000) ................................................ 

17, 21 

United States v. United States District Court, 
407 U.S. 297 (1972) ................................................................ 
16 

Ward v. Rock Against Racism, 491 U.S. 781 
(1989) ................................................................. 
12, 19, 20, 21, 22 

Waters v. Churchill, 511 U.S. 661 (1994) ........................... 
46 

Wooley v. Maynard, 430 U.S. 705 (1977) ........................... 34 

VII 

Constitution and statutes: 

Page 

U.S. Const. Amend. I ....................................................... 
passim 

Electronic Communications Privacy Act of 1986, 

Pub. L. No. 99-508, 100 Stat. 1848 .............................. 

5, 35-36 

Omnibus Crime Control and Safe Streets Act of 
1968, Pub. L. No. 90-351, Tit. III, § 802, 82 Stat. 212, 
18 U.S.C. 2510 et seq. ..................................................... 
passim 

18 U.S.C. 2510(1) ............................................................... 
5 

18 U.S.C. 2510(4) ............................................................... 
4 

18 U.S.C. 2510(12) (1994 & Supp. IV 1998) .................. 
5 

18 U.S.C. 2511 .................................................................... 
24 

18 U.S.C. 2511(1)(a) .................................................... 
4, 5, 43 

18 U.S.C. 2511(1)(c) ................................................... 
passim 

18 U.S.C. 2511(1)(d) .................................................. 
passim 

18 U.S.C. 2511(4) ............................................................... 
6 

18 U.S.C. 2511(5) ............................................................... 
6 

18 U.S.C. 2512 .................................................................... 
5 

18 U.S.C. 2515 .................................................................... 
5, 24 

18 U.S.C. 2516 (1994 & Supp. IV 1998) ......................... 
4, 5 

18 U.S.C. 2518 (1994 & Supp. IV 1998) ......................... 
4, 5 

18 U.S.C. 2520 .................................................................... 
7 

18 U.S.C. 2520(a) ............................................................... 
6 

18 U.S.C. 2520(b) ............................................................... 
6 

18 U.S.C. 2520(c) ............................................................... 
6 

28 U.S.C. 1292(b) ....................................................................... 
8 

28 U.S.C. 2403 ............................................................................ 
42 

28 U.S.C. 2403(a) ..................................................................... 
8, 42 

47 U.S.C. 605 (1994 & Supp. IV 1998) .................................. 
6 

50 U.S.C. 1809 ............................................................................ 
6 

18 Pa. Cons. Stat. Ann. (West 1983): 
§§ 5701 et seq. .......................................................................... 
7 

§ 5725 (& Supp. 1999) ............................................................ 8 

VIII 

Miscellaneous: Page 

Electronic Communications Privacy Act: Hearings 
Before the Subcomm. on Courts, Civil Liberties, 
and the Administration of Justice of the House 
Comm. on the Judiciary, 99th Cong., 1st & 2d Sess. 
(1985 & 1986) ............................................................... 

4, 36, 37 

2 W.R. LaFave & A.W. Scott, Jr., Substantive 

Criminal Law (1986) ............................................................. 

40 

T. Larsen, The Layman’s Guide to Electronic Eaves- 
dropping (1996) ...................................................................... 
38 

F. Lieber, On Civil Liberty and Self-Government 
(1853) ........................................................................................ 35 

C.W. O’Neal, Surreptitious Audio Survelliance: The 

Unknown Danger to Law Enforcement, FBI 
Law Enforcement Bulletin, June 1998 .............................. 
38 

President’s Commission on Law Enforcement and 

Administration of Justice, The Challenge of Crime 
in a Free Society (1967) ...................................................... 

3, 37 
Protection from Personal Intrusion Act and Privacy 

Protection Act of 1998: Hearing Before the House 
Comm. on the Judiciary, 105th Cong., 2d Sess. 
(1998) ...................................................................................... 37-38 

Restatement (Second) of Torts (1965) .............................. 

45, 46 

S. Rep. No. 1097, 90th Cong., 2d Sess. (1968) ......... 
2, 3, 5, 24, 

37, 44 

S. Rep. No. 541, 99th Cong., 2d Sess. (1986) .............. 
3-4, 5, 36 
2 J. Story, Commentaries on Equity Jurisprudence 
(1836 ed., reprinted 1972) ..................................................... 
35 

www.espionage-store.com/survelliance.html ...................... 38 

www.pimall.com/nais/n.lazer.eaves.html .............................. 38 

In the Supreme Court of the United States 
No. 99-1687 
GLORIA BARTNICKI AND ANTHONY F. KANE, JR., 
PETITIONERS 

v. 
FREDERICK W. VOPPER, AKA FRED WILLIAMS, ET AL. 

No. 99-1728 
UNITED STATES OF AMERICA, PETITIONER 

v. 
FREDERICK W. VOPPER, ET AL. 

ON WRITS OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

BRIEF FOR THE UNITED STATES 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-58a1) is 
reported at 200 F.3d 109. The opinions and orders of the 
district court (Pet. App. 59a-68a, 69a, 70a-74a, 75a-76a) are 
unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
December 27, 1999. The petitions for rehearing were denied 
on February 25, 2000. The petitions for writs of certiorari 

1 “Pet. App.” refers to the Appendix to the Petition for a Writ of 
Certiorari in United States v. Vopper, No. 99-1728. 

(1) 

2 

were granted on June 26, 2000. The jurisdiction of this Court 
is invoked under 28 U.S.C. 1254(1). 

STATUTORY PROVISIONS INVOLVED 

The First Amendment to the United States Constitution 
and relevant provisions of Title III of the Omnibus Crime 
Control and Safe Streets Act of 1968, as amended, 18 U.S.C. 
2510 et seq., are set forth in an appendix, infra, at 1a-10a. 

STATEMENT 

This case involves a constitutional challenge to provisions 
of Title III of the Omnibus Crime Control and Safe Streets 
Act of 1968, 18 U.S.C. 2510 et seq. (Title III), the principal 
federal wiretapping statute. Title III generally prohibits the 
interception of wire, oral, and electronic communications. 
The provisions at issue in this case—18 U.S.C. 2511(1)(c) and 
(d)—bar use and disclosure of the contents of illegally inter- 
cepted communications by any person who knows or has 
reason to know that the communications were intercepted in 
violation of Title III. 

1. Congress enacted Title III in 1968 in response to the 
widespread perception that technology was rapidly eroding 
the security of otherwise private means of communication. 
As the Senate Report on Title III explained, “tremendous 
scientific and technological developments” had made possible 
“widespread use and abuse of electronic surveillance”; as a 
result, the privacy of communications was being “seriously 
jeopardized.” See S. Rep. No. 1097, 90th Cong., 2d Sess. 67 
(1968) (1968 Senate Report). The 1968 Senate Report con- 
tinued: 

Commercial and employer-labor espionage is becoming 
widespread. It is becoming increasingly difficult to 
conduct business meetings in private. Trade secrets are 
betrayed. Labor and management plans are revealed. No 
longer is it possible, in short, for each man to retreat into 
his home and be left alone. Every spoken word relating 

3 

to each man’s personal, marital, religious, political, or 
commercial concerns can be intercepted by an unseen 
auditor and turned against the speaker to the auditor’s 
advantage. 

Ibid. 

The importance of offering protection against such 
intrusions was underscored in the 1967 report of the Presi- 
dent’s Commission on Law Enforcement and Administration 
of Justice, which was influential in the development of 
wiretap legislation. See United States v. Giordano, 416 U.S. 
505, 517-518 n.7 (1974); United States v. Jones, 542 F.2d 661, 
667 n.10 (6th Cir. 1976). See also 1968 Senate Report 67. 
The Commission observed: 

In a democratic society privacy of communication is 
essential if citizens are to think and act creatively and 
constructively. Fear or suspicion that one’s speech is 
being monitored by a stranger, even without the reality 
of such activity, can have a seriously inhibiting effect 
upon the willingness to voice critical and constructive 
ideas. When dissent from the popular view is discour- 
aged, intellectual controversy is smothered, the process 
for testing new concepts and ideas is hindered and 
desirable change is slowed. 

President’s Commission on Law Enforcement and Admini- 
stration of Justice, The Challenge of Crime in a Free Society 
202 (1967). “[E]lectronic surveillance,” the report noted, was 
being used by “numerous private persons” “to carry on 
industrial espionage,” “to assist in preparing for civil litiga- 
tion,” to conduct “personnel investigations,” and for other 
purposes. Ibid. 

Electronic surveillance has also been understood to 
threaten the development of new and vital channels of com- 
munication. While “[a] letter sent by first class mail is 
afforded a high level of protection,” S. Rep. No. 541, 99th 

4 

Cong., 2d Sess. 5 (1986), and “from the beginning of our 
history, first-class mail has had the reputation for preserving 
privacy, while at the same time promoting commerce,” 
Electronic Communications Privacy Act: Hearings Before 
the Subcomm. on Courts, Civil Liberties, and the 
Administration of Justice of the House Comm. on the 
Judiciary, 99th Cong., 1st & 2d Sess. 4 (1985 & 1986) (ECPA 
Hearings), that same guarantee of privacy was absent with 
respect to the mails’ “new technological equivalents.” Id. at 
2 (statement of Sen. Kastenmeier). See also id. at 4 (“We 
cannot let any American feel less confident in putting 
information into an electronic mail network than he or she 
would in putting it into an envelope and dropping it off at the 
post office.”). 

To address those concerns, Title III provides a “com- 
prehensive scheme for the regulation of wiretapping and 
electronic surveillance.” Gelbard v. United States, 408 U.S. 
41, 46 (1972). See also Pub. L. No. 90-351, Tit. III, § 801, 82 
Stat. 211 (Title III designed “to protect effectively the 
privacy of oral and wire communications”). Title III bars the 
unauthorized acquisition of wire, oral, and electronic 
communications through the use of electronic, mechanical, 
and other devices. Specifically, Section 2511(1)(a) provides 
that, “[e]xcept as otherwise specifically provided” in Title 
III, it is unlawful for “any person” to “intentionally inter- 
cept[], endeavor[] to intercept, or procure[] any other person 
to intercept or endeavor to intercept, any wire, oral, or 
electronic communication.” See also 18 U.S.C. 2510(4) (de- 
fining the term “intercept” to mean acquisition of a “com- 
munication through the use of any electronic, mechanical, or 
other device.”).2 Sections 2516 and 2518, in turn, set forth 

2 As enacted in 1968, Title III applied only to wire and oral com- 
munications. See Pub. L. No. 90-351, Tit. III, § 802, 82 Stat. 212. Conse- 
quently, for some time it was unsettled whether Title III’s definition of 
“wire communication” reached the radio portion of cellular telephone 

5 

the procedures that must be employed, and the substantive 
criteria that must be met, before a wiretap or other form of 
electronic surveillance may be authorized under Title III. 18 
U.S.C. 2516, 2518 (1994 & Supp. IV 1998). As this Court has 
explained, Section 2511(1)(a) is designed “effectively to 
prohibit, on the pain of criminal and civil penalties, all 
interceptions of oral[,] [electronic,] and wire communications, 
except those specifically provided for in the Act.” Giordano, 
416 U.S. at 514. 

In framing Title III, Congress concluded that merely 
prohibiting interceptions would not be sufficient. It ob- 
served that “[o]nly by striking at all aspects of the problem” 
could “privacy be adequately protected.” 1968 Senate 
Report 69. Accordingly, Congress reinforced the prohibition 
on unauthorized interception with several related restric- 
tions. For example, Congress banned the possession, ship- 
ment, sale, manufacture, and advertisement of listening 
devices where the device’s design “renders it primarily 
useful for the purpose of the surreptitious interception of 
wire, oral, or electronic communications.” 18 U.S.C. 2512. 
And it prohibited the use of the contents of illegally inter- 
cepted communications as evidence in any proceeding, 
including criminal prosecutions. 18 U.S.C. 2515. 

In 18 U.S.C. 2511(1)(c) and (d), Congress also prohibited 
use and disclosure of the contents of illegally intercepted 
communications. Section 2511(1)(c) makes it unlawful for 
any person to “intentionally disclose[], or endeavor[] to 

communications. See, e.g., Edwards v. State Farm Ins. Co., 833 F.2d 535, 
538 (5th Cir. 1987). In 1986, however, Congress amended Title III to 
clarify that Title III extends to communications on cellular and other 
wireless telephone systems, see 18 U.S.C. 2510(1). At the same time, 
Congress extended Title III to cover the electronic transmission of non- 
voice data such as electronic mail and other Internet communications. See 
18 U.S.C. 2510(12) (1994 & Supp. IV 1998). See generally Electronic 
Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99-508, 100 
Stat. 1848; S. Rep. No. 541, supra, at 1-3, 7-8, 11. 

6 

disclose, to any other person the contents of any wire, oral, 
or electronic communication” if the person “know[s] or ha[s] 
reason to know” that the information “was obtained through 
the interception of a wire, oral, or electronic communication 
in violation of ” Title III. Section 2511(1)(d) makes it 
unlawful for any person with the same knowledge to 
“intentionally use[], or endeavor[] to use, the contents of any 
wire, oral, or electronic communication.” Taken together, 
those two provisions proscribe all unauthorized uses of 
illegally intercepted communications by anyone with 
knowledge or reason to know of their unlawful origin. See 
also 50 U.S.C. 1809 (similar prohibition); 47 U.S.C. 605 (1994 
& Supp. IV 1998) (barring divulgence of private wire and 
radio communications to individuals other than the 
addressee). 

Violations of Title III may be prosecuted as criminal 
offenses or result in the imposition of civil fines. 18 U.S.C. 
2511(4) and (5). Title III also provides a private cause of 
action for any person whose communication is intercepted, 
disclosed, or used in violation of the statute. 18 U.S.C. 
2520(a). In a civil action under Title III, a court may award 
“such * * * relief as may be appropriate,” including 
declaratory and injunctive relief, compensatory damages or 
prescribed statutory damages, and punitive damages “in 
appropriate cases.” 18 U.S.C. 2520(b) and (c). 

2. This case arises out of the illegal interception of a 
telephone conversation between Gloria Bartnicki, the chief 
negotiator for a Pennsylvania teachers union, and Anthony 
Kane, the union’s president. The union was engaged in 
contract negotiations with a local school board, and Bartnicki 
and Kane held a confidential telephone conversation in which 
they discussed the status of the negotiations; Bartnicki used 
a cellular telephone. Pet. App. 3a. Both the confidential 
nature of the conversation, and the fact that Bartnicki was 
using a car phone, were obvious from the conversation itself. 

7 

See J.A. 43 (“[T]his is very confidential.”); J.A. 42 (indicating 
that Bartnicki was in her car). 

An unknown person intercepted the conversation, re- 
corded it, and anonymously delivered a copy of the recording 
to respondent Jack Yocum. Yocum was president of a local 
taxpayers’ association, formed for the purpose of opposing 
the union’s bargaining demands. Pet. App. 3a. Yocum 
listened to the recording, recognized Bartnicki’s and Kane’s 
voices, and heard provocative remarks about the school 
board. Ibid.3 

Although Yocum has stated that the contents of the 
recording caused him to become concerned about the safety 
of school board members, he did not turn the tape over to the 
police. J.A. 54, 118. Instead, he gave a copy to respondent 
Frederick Vopper, the host of a local radio talk show, so that 
Vopper would “make it public.” J.A. 118; see Pet. App. 3a- 
4a. Yocum also played the tape for several school board 
members. J.A. 116-117. Respondent Vopper retained the 
tape for several months, J.A. 76; Pet. App. 55a-56a n.6 
(Pollak, J., dissenting), but eventually played it on his pro- 
gram repeatedly, Pet. App. 4a; J.A. 20, 39, 64. The program 
was broadcast by two local radio stations, respondent station 
WILK and respondent station WGBI. Pet. App. 4a. 

Bartnicki and Kane filed this action in the United States 
District Court for the Middle District of Pennsylvania 
against Yocum and Vopper, as well as the respondent radio 
stations, under Title III, 18 U.S.C. 2520, and a parallel 
provision of Pennsylvania law, 18 Pa. Cons. Stat. Ann. § 5701 
et seq. (West 1983). They asserted that respondents had 
disclosed and used the taped conversation, knowing or 
having reason to know that it had been intercepted unlaw- 

3 During the phone call, Kane stated that, if the school board did not 
offer more than a three percent raise, the union would have to “go to their, 
their homes . . . To blow off their front porches, we’ll have to do some 
work on some of those guys.” J.A. 46. 

8 

fully, in violation of 18 U.S.C. 2511(1)(c) and (d), and in 
violation of the corresponding provisions of Pennsylvania 
law, 18 Pa. Cons. Stat. Ann. § 5725 (West 1983 & Supp. 1999). 
See J.A. 12, 15, 17. Bartnicki and Kane seek statutory and 
punitive damages.4 

Respondents sought summary judgment, arguing that 
application of Title III and the Pennsylvania statute to their 
actions would violate the First Amendment. They asserted 
that, where a private conversation involving matters of pub- 
lic significance is illegally intercepted and recorded through 
an electronic eavesdropping device, third parties have a con- 
stitutional right to disclose the contents of the conversation 
so long as they were not responsible for the initial inter- 
ception. Pet. App. 65a; see also id. at 74a. The district court 
denied respondents’ motion, holding, inter alia, that the 
application of Title III to respondents does not violate the 
First Amendment. Pet. App. 65a-67a, 74a. The district 
court then certified the First Amendment issue for inter- 
locutory appeal under 28 U.S.C. 1292(b), Pet. App. 75a-76a, 
and respondents filed a petition for interlocutory review, id. 
at 5a. 

3. After the court of appeals heard oral argument, it 
notified the Attorney General that the constitutionality of 18 
U.S.C. 2511(1)(c) and (d) was at issue; the court invited the 
United States to present its views. Pet. App. 77a-79a; see 28 
U.S.C. 2403(a).5 The United States intervened and filed a 
brief to defend those provisions. Pet. App. 5a. 

4 Although Bartnicki and Kane’s complaint prays for compensatory 
damages, J.A. 18, the parties have stipulated to dismissal of that request, 
J.A. 130. Accordingly, this case does not present any question concerning 
the propriety or proper measure of compensatory damages. 

5 Under 28 U.S.C. 2403(a), when the constitutionality of an Act of 
Congress is drawn into question in a federal suit to which the United 
States is not a party, federal courts are required to notify the Attorney 

9 

A divided panel of the court of appeals reversed. Pet. 
App. 1a-58a. The court framed the issue as “whether the 
First Amendment precludes imposition of civil damages for 
the disclosure of portions of a tape recording of an inter- 
cepted telephone conversation containing information of 
public significance when the defendants * * * played no 
direct or indirect role in the interception.” Id. at 2a. The 
court of appeals concluded that 18 U.S.C. 2511(1)(c) and (d), 
and the corresponding provisions of Pennsylvania law, are 
“content neutral” and therefore subject to intermediate 
rather than strict constitutional scrutiny. Pet. App. 17a-28a. 
But it held that Title III does not meet that standard of 
judicial review when applied to “the use or disclosure of 
illegally intercepted information where there is no allegation 
that the defendants participated in or encouraged th[e] 
interception.” Id. at 42a. 

The court of appeals rejected the government’s contention 
that Title III’s bar on the use and dissemination of illegally 
intercepted conversations is needed to diminish the demand 
for such materials and thus to decrease the incentive for 
illegal interceptions. Pet. App. 33a-36a. “The connection be- 
tween prohibiting third parties from using or disclosing” 
such communications and “preventing the initial intercep- 
tion,” the court of appeals stated, is too “indirect.” Id. at 33a. 
The government’s interest in protecting privacy and ensur- 
ing public confidence in the integrity of communications, the 
court of appeals found, “can be reached by enforcement of 
existing provisions against the responsible parties rather 
than by imposing damages on these defendants.” Id. at 35a. 

The court of appeals also rejected the government’s con- 
tention that Title III’s use and disclosure prohibition serves 
the legitimate interest of protecting individuals from the 
further injury that occurs when illegally intercepted commu- 

General and to permit the United States to intervene with “all the rights 
of a party” to defend the constitutionality of the statute. 

10 

nications are disclosed to additional parties or otherwise 
used. See Pet. App. 26a-27a. The court stated that protect- 
ing “intimate” facts from public disclosure is not a cognizable 
interest for purposes of intermediate scrutiny because, in the 
court’s view, it turns on the communicative impact of the 
information being disclosed. Id. at 27a. 

Finally, the court of appeals expressed concern that Sec- 
tion 2511(1)(c) and (d)’s prohibition might chill free expres- 
sion. Pet. App. 36a. The threat of liability, the court stated, 
might deter the media from publishing material that was not 
in fact obtained in violation of Title III when the infor- 
mation’s origin is unclear. Ibid. 

Judge Pollak (Senior D.J., sitting by designation) dis- 
sented. Pet. App. 42a-58a. Judge Pollak agreed that inter- 
mediate scrutiny is appropriate, but he “part[ed] company” 
with the majority on the proper application of that standard 
to Title III. Id. at 47a. He explained that, without the 
prohibition on disclosure, there would be an incentive to 
conduct illegal interceptions and the damage from such 
violations would be “compounded.” Id. at 50a-51a. Judge 
Pollak concluded that the “First Amendment values on 
which [respondents] take their stand are countered by 
privacy values sought to be advanced by Congress and the 
Pennsylvania General Assembly that are of comparable— 
indeed kindred—dimension.” Id. at 58a. 

The United States and the plaintiffs filed petitions for 
rehearing en banc. The court denied rehearing en banc by a 
6-5 vote. Pet. App. 82a-83a. 

SUMMARY OF ARGUMENT 

Title III renders it unlawful for any person to use or dis- 
close the contents of a wire, oral, or electronic communi- 
cation when the person knows or has reason to know that the 
communication was intercepted in violation of federal 
wiretapping law. The court of appeals held that this restric- 
tion on speech violates the First Amendment as applied to 

11 

the facts of this case, which involves the illegal interception 
and tape-recording of a private, cellular telephone call be- 
tween union officials followed by the public broadcast of the 
tape on radio stations. The court of appeals’ holding is incor- 
rect. It rests on a misapprehension about the substantial 
interests that Title III serves in protecting privacy, foster- 
ing new technologies for communications, and safeguarding 
uninhibited private communications. And it overstates the 
incidental effect on speech. 

I. Title III is subject to intermediate scrutiny under the 
First Amendment. Where, as here, a generally applicable 
law burdens speech not for the purpose of excising ideas or 
information from public or private debate, but instead to 
promote legitimate regulatory aims unrelated to the com- 
municative impact of the regulated activity, the Court 
applies at most an intermediate level of scrutiny. Under that 
approach, a law is valid if it furthers an important govern- 
ment interest that is unrelated to the suppression of free 
expression, and if the incidental restriction on speech is no 
greater than necessary to promote that interest. See, e.g., 
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994); 
United States v. O’Brien, 391 U.S. 367, 377 (1968). 

The restrictions in Title III are properly evaluated under 
intermediate scrutiny, as the court of appeals held in this 
case. The critical inquiry is whether the law is designed to 
“stifle[] speech on account of its message,” or instead fulfills 
regulatory goals independent of the message of the speech. 
Turner, 512 U.S. at 641. Here, three central attributes of 
Title III show that its purpose is not to trammel speech 
because of disagreement with the message it may convey. 

First, Title III is a content-neutral provision. The statute, 
on its face, draws no distinctions as to subject matter or 
viewpoint; it instead applies to “the contents of any wire, 
oral, or electronic communication.” 18 U.S.C. 2511(1)(c) and 
(d). The impartiality of those prohibitions reveals a legis- 

12 

lative design to protect all private communications against 
unlawful intrusions, not to suppress any particular type of 
speech. As such, the restrictions are “justified without 
reference to the content of the regulated speech,” Ward v. 
Rock Against Racism, 491 U.S. 781, 791 (1989), and turn 
only on the illegal source of the communications at issue. 
See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30-34 (1984) 
(applying intermediate scrutiny to a law that restricted 
speech based on the source, rather than the subject matter, 
of the information at issue). 

Second, Title III is generally applicable to all uses of 
illegally intercepted communications, including non-expres- 
sive uses, where the individual has the requisite degree of 
knowledge of the illegal source. Title III prohibits uses of 
illegally intercepted communications in competing with a 
business rival or in trading in securities; it bars use of such 
communications in an extortionate scheme; and it has been 
construed to bar uses of illegally intercepted communications 
in criminal and regulatory investigations. The combined 
prohibition against all “uses” in Section 2511(1)(d) and all 
“disclos[ures]” in Section 2511(1)(c) reinforces the conclusion 
that Congress’s intention was not to suppress speech, but to 
avoid the harms to privacy, free expression, and technologi- 
cal innovation that flow from exploitation of illegal surveil- 
lance of communications. The general applicability of a law 
is a feature that makes strict scrutiny inappropriate. See 
Cohen v. Cowles Media Co., 501 U.S. 663, 669-672 (1991); see 
also Hill v. Colorado, 120 S. Ct. 2480, 2497 (2000); Turner, 
512 U.S. at 661. 

Third, Title III itself furthers the constitutional objective 
of encouraging free expression. The willingness of individu- 
als to speak freely in private is seriously jeopardized by a 
constant fear of surveillance and public exposure or misuse 
of such conversations. Much valuable interchange—per- 
sonal, philosophical, political, or business—takes place only 

13 

because of the spontaneity and candor that can occur when a 
speaker can select and limit the audience to which his com- 
ments are addressed. That is itself a value protected by the 
First Amendment. See Harper & Row, Publishers, Inc. v. 
Nation Enters., 471 U.S. 539, 559 (1985). Because Title III 
furthers that purpose, this is a case in which “consti- 
tutionally protected interests lie on both sides of the legal 
equation,” Nixon v. Shrink Mo. Gov’t PAC, 120 S. Ct. 897, 
911 (2000) (concurring opinion), and intermediate scrutiny is 
appropriate. 

There is no basis for applying to Title III the strict 
scrutiny standard of Florida Star v. B.J.F., 491 U.S. 524 
(1989), and the cases on which Florida Star relies, including 
Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979). Those 
cases apply only to the publication of information that was 
“lawfully obtain[ed].” Florida Star, 491 U.S. at 533. The 
Court specifically reserved cases in which “information has 
been acquired unlawfully by a newspaper or by a source,” 
id. at 535 n.8, and it made clear that when “sensitive infor- 
mation rests in private hands, the government may under 
some circumstances forbid its nonconsensual acquisition, 
thereby bringing outside of the Daily Mail principle the 
publication of any information so acquired,” id. at 534. 

Title 

III fits within that latter mold. In addition, this Court’s cases 
applying strict scrutiny to restraints on the press dealt with 
content-based laws forbidding publication of particular facts; 
laws that focused on speech itself, rather than all uses of 
information based on its illegal source; and laws often di- 
rected at information about governmental processes or re- 
leased from a governmental source. Title III differs from 
such laws in all of those respects. 

II. Evaluated under the intermediate scrutiny standard, 
Title III is constitutional. As an initial matter, it furthers 
two important governmental interests that are unrelated to 
suppression of free speech. First, it protects against the 

14 

aggravated injury to privacy that occurs when illegally 
intercepted communications are then exploited or publicly 
disseminated. As the Court has recognized, the later use 
“compounds the statutorily proscribed invasion of * * * 
privacy,” Gelbard v. United States, 408 U.S. 41, 52 (1972), 
and thereby multiplies the chilling effect on private com- 
munication inevitably produced by illegal electronic sur- 
veillance and interception. Relatedly, Congress wished to 
foster development of new technologies, such as cellular 
phones, e-mail, and other computer communications, by 
assuring the public that those channels will be as secure as 
the mails. Second, the ban on use and disclosure reinforces 
the underlying ban on illegal interception. Without barring 
outlets for taking advantage of illegally intercepted 
communications, the incentive to engage in them would be 
significant. Detection of illegal electronic interception is 
difficult and often unsuccessful. Only by removing the 
“market” for illegally intercepted communications could 
Congress effectively deter the underlying misconduct. Cf. 
New York v. Ferber, 458 U.S. 747, 759-760 (1982). 

Those interests would be substantially less effectively 
served if Title III’s prohibitions were limited to particular 
communications. Such a limited ban would do nothing to 
prevent the increased damage to privacy interests that 
disclosure of any private communication inflicts. It would 
therefore less effectively remove the chill that electronic 
surveillance places on communication, particularly with new 
technologies. For the same reasons, a ban on illegal 
interception alone would not be sufficient. Moreover, 
because of the difficulty in detecting illegal surveillance, such 
a law would enable persons who carry out illegal 
interceptions to launder information through third parties 
and thereby reap benefits from the violation. The incentives 
to engage in illegal interceptions would thus remain high. 

15 

There is no basis for concern that the prohibitions of Title 
III will chill protected speech even when the source of the 
information is not an illegal interception. Title III’s scienter 
standard requires that a person “know[] or hav[e] reason to 
know” that the information was obtained through an illegal 
interception before the prohibitions on use and disclosure 
apply. 18 U.S.C. 2511(1)(c) and (d). That standard is satis- 
fied only when an individual actually knows of the illegality 
or is aware of the facts that make the illegal source apparent. 
It imposes no duty of inquiry on a person to ferret out the 
provenance of the information. In addition, in other First 
Amendment contexts, the Court has crafted procedural 
devices, such as heightened scienter standards, heightened 
burdens of proof, and de novo appellate review, to avoid 
unduly chilling protected speech. To the extent that such 
concerns exist here, those legal devices would be equally 
capable of dispelling deleterious effects. That result would 
better balance the privacy and expression interests in this 
case than would invalidation of Title III’s comprehensive 
legal protections against the dissemination of information 
acquired through illegal interceptions. 

ARGUMENT 

TITLE III’S RESTRICTION ON THE USE AND 
DISCLOSURE OF ILLEGALLY INTERCEPTED COM- 
MUNICATIONS IS CONSISTENT WITH THE FIRST 
AMENDMENT 

At stake in this case are interests of central importance: 
the interest in privacy and security of wire, oral, and 
electronic communications, and the interest in free ex- 
pression protected by the First Amendment. Reconciling 
those interests requires close examination of the values at 
issue and the effects of the regulation; no mechanical 
formulation can substitute for such an inquiry. As this Court 
recognized in Florida Star v. B.J.F., 491 U.S. 524, 533 (1989), 

16 

“the sensitivity and significance of the interests presented in 
clashes between First Amendment and privacy rights 
counsel relying on limited principles that sweep no more 
broadly than the appropriate context of the * * * case.” 

Title III “protect[s] the privacy of individual thought and 
expression,” United States v. United States District Court, 
407 U.S. 297, 302 (1972), by safeguarding the ability of 
individuals to communicate without fear of interception, use, 
and disclosure of their private communications. In affording 
such protection, Title III builds on the traditional respect in 
our society for the privacy of personal communications. The 
statute also reflects the basic principle that those who 
knowingly come into possession of stolen goods are not free 
to exploit them. While attaining Title III’s purposes can 
result in the restriction of speech in particular cases, this 
Court has “pointedly refused” to hold that the publication of 
truthful information may never “be subjected to civil or 
criminal liability for invading an area of privacy defined by 
the State.” Florida Star, 491 U.S. at 533 (internal quotation 
marks omitted). Here, liability is imposed, not because of 
the government’s disagreement with the message, or 
because the government seeks to suppress public knowledge 
of particular subject matters, but because of the illegality of 
the source of the information, i.e., an illegally intercepted 
private communication. Indeed, enforcement of Title III is 
necessary to assure citizens that they may communicate 
privately without fear of unwanted and illegal dissemination 
of their speech. Fostering such speech is itself a First 
Amendment value. 

I. The Application of Title III To Disclosure Of 
Illegally Intercepted Communications By Persons 
Other Than The Wiretapper Is Subject To 
Intermediate Scrutiny 

“[B]ecause not every interference with speech triggers 
the same degree of scrutiny under the First Amendment,” 

17 

this Court “must decide at the outset the [appropriate] level 
of scrutiny.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 
637 (1994). Title III’s use and disclosure prohibition is a 
content-neutral provision of general applicability; it neither 
singles out a particular category of speech by subject nor 
singles out speech itself. Accordingly, it is properly analyzed 
under this Court’s intermediate scrutiny standard.6 

A. Intermediate Scrutiny Is Appropriate Where The 

Statute Neither Regulates Speech Because Of Its 

Message Nor Singles Out Speech For Differential 

Treatment 

In order to prevent the government from suppressing 
unpopular ideas or disfavored views, this Court has consis- 
tently subjected to strict scrutiny laws that attempt to 
“stifle[] speech on account of its message.” See, e.g., United 
States v. Playboy Entertainment Group, Inc., 120 S. Ct. 
1878, 1880 (2000); Reno v. ACLU, 521 U.S. 844 (1997); Sable 
Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 
(1989). Under that rigorous test, content-based statutes are 
generally unconstitutional unless they are “narrowly tailored 
to promote a compelling Government interest.” Playboy, 
120 S. Ct. at 1886. 

6 The three courts of appeals that have considered the issue have all 
come to that conclusion. See Pet. App. 28a (intermediate scrutiny appro- 
priate because Title III is “content-neutral” and “does not rely on the 
communicative impact of speech”); Boehner v. McDermott, 191 F.3d 463, 
467 (D.C. Cir. 1999) (intermediate scrutiny appropriate because Title III 
contains “generally applicable, content-neutral prohibitions on conduct 
that create incidental burdens on speech”), petition for cert. pending, No. 
99-1709; Peavy v. WFAA-TV, No. 99-10272, 2000 WL 1051909 (5th Cir. 
July 31, 2000) (intermediate scrutiny applicable to Title III where 
defendants had some participation in the illegal interceptions, because the 
statute is content neutral and imposes an incidental burden on speech). 
And, in contrast to the court below, both the D.C. Circuit and the Fifth 
Circuit went on to find Title III’s restrictions constitutional as applied to 
the facts of those cases. 

18 

In contrast, laws that regulate speech or other expressive 
activities for purposes and in a manner unrelated to the 
message or its communicative impact are subject to inter- 
mediate scrutiny. That is because, “in most cases,” such laws 
“pose a less substantial risk of excising certain ideas or 
viewpoints from the public dialogue.” Turner, 512 U.S. at 
642. Under intermediate scrutiny, a statute is consistent 
with the First Amendment “if it furthers an important or 
substantial governmental interest; if the governmental 
interest is unrelated to the suppression of free expression; 
and if the incidental restriction on alleged First Amendment 
freedoms is no greater than is essential to the furtherance of 
that interest.” Id. at 662 (quoting United States v. O’Brien, 
391 U.S. 367, 377 (1968)). 

The intermediate scrutiny standard originated in O’Brien, 
where the Court upheld a law prohibiting the destruction of 
draft cards against a First Amendment challenge. O’Brien 
had argued that the burning of his draft card was a form of 
protected political expression, a protest against the Vietnam 
War. See 391 U.S. at 376-386. Applying intermediate 
scrutiny, the Court rejected his First Amendment claim, 
holding that the statute furthered important governmental 
interests unrelated to the suppression of expression and was 
not unnecessarily broad. Id. at 376-382. The Court assumed 
that “the alleged communicative element in O’Brien’s con- 
duct is sufficient to bring into play the First Amendment,” 
id. at 376, but held that intermediate scrutiny was never- 
theless appropriate because “the law punished him for the 
‘noncommunicative impact of his conduct, and for nothing 
else.’ ” City of Erie v. Pap’s A.M., 120 S. Ct. 1382, 1392 (2000) 
(plurality opinion) (quoting O’Brien, 391 U.S. at 382). 

O’Brien involved a law aimed at conduct that, in particular 
cases, had a incidental impact on “symbolic speech” or 
“expressive conduct,” i.e., conduct that ordinarily is under- 
taken for non-expressive purposes, but that may be per- 

19 

formed in particular cases to convey a message. See, e.g., 
City of Erie, 120 S. Ct. at 1391, 1395 (plurality opinion); 
Clark v. Community for Creative Non-Violence, 468 U.S. 
288, 294 (1984). Since deciding O’Brien, the Court has 
extended that intermediate scrutiny standard to particular 
First Amendment settings that involve the regulation of 
“pure speech.” See, e.g., Procunier v. Martinez, 416 U.S. 
396, 410-414 (1974). Most notably, O’Brien provides the 
standards that govern the constitutionality of “content- 
neutral” speech regulations. See, e.g., Turner, 512 U.S. at 
641-652, 662; San Francisco Arts & Athletics, Inc. v. United 
States Olympic Comm., 483 U.S. 522, 536-537 (1987). And 
the O’Brien factors correspond to the Court’s test for laws 
that regulate “the time, place, or manner of protected 
speech.” Ward v. Rock Against Racism, 491 U.S. 781, 791 
(1989); see Hill v. Colorado, 120 S. Ct. 2480, 2491 (2000). 

What unites expressive conduct cases like O’Brien, 
“content-neutral speech regulation” cases like Turner, and 
“time, place, and manner” cases like Ward, is that, in each 
instance, the law is not hostile to a particular message and 
does not seek to curtail the communicative impact of the 
expression. Instead, the justification for the law lies in the 
“noncommunicative impact” of the regulated activity. 
O’Brien, 391 U.S. at 382. To the extent that such laws 
burden the exchange of ideas and information, the burden is 
incidental to the government’s pursuit of “a legitimate regu- 
latory goal” unrelated to the suppression of speech or the 
content of the speaker’s message. Turner, 512 U.S. at 641. 
Such laws, as this Court explained in Turner, “do not pose 
such inherent dangers to free expression, or present such 
potential for censorship or manipulation, as to justify appli- 
cation of the most exacting level of First Amendment 
scrutiny.” Id. at 661. 

When deciding whether a law that regulates expression is 
subject to strict or intermediate scrutiny, the relevant 

20 

inquiry is whether the law is designed to “stifle[] speech on 
account of its message,” or, alternatively, reflects the legisla- 
ture’s pursuit of legitimate governmental goals that are 
unrelated to the message being conveyed. Turner, 512 U.S. 
at 641; City of Erie, 120 S. Ct. at 1391 (plurality opinion) (“If 
the governmental purpose in enacting the regulation is 
unrelated to the suppression of expression, then the regula- 
tion need only satisfy the ‘less stringent’ standard from 
O’Brien,” but “[i]f the government interest is related to the 
content of the expression, * * * then the regulation falls 
outside the scope of the O’Brien test.”). The fact that a law 
is not aimed at the communicative impact of expression does 
not necessarily mean that the law presents no First Amend- 
ment concerns. But laws that are justified without reference 
to the message, content, or viewpoint of speech “pose a less 
substantial risk of excising certain ideas or viewpoints from 
the public dialogue,” Turner, 512 U.S. at 642, and are appro- 
priately held to the less-demanding standard of intermediate 
scrutiny. 

B. Title III Is Subject To Intermediate Scrutiny Because 

It Is Content Neutral And Has General Applicability 

Title III is not directed at suppressing the dissemination 
of disfavored ideas or information. Indeed, Title III does not 
single out speech from other activities as a subject for regu- 
lation. Instead, it prohibits all uses of illegally intercepted 
communications, whether or not the use is communicative in 
nature. And where Title III prohibits disclosure, it does so 
in a content-neutral fashion. Title III thereby furthers 
legitimate and substantial interests in ensuring the integrity 
of vital means of private communication and in promoting 
free expression through those channels. As such, it is 
“justified without reference to the content of the regulated 
speech,” Ward, 491 U.S. at 791 (emphasis omitted), and is 
subject to intermediate scrutiny. 

21 

1. Title III is inherently content neutral. “[T]he prin- 
cipal inquiry in determining content neutrality * * * is 
whether the government has adopted a regulation of speech 
because of [agreement or] disagreement with the message it 
conveys.” Turner, 512 U.S. at 642 (internal quotation marks 
omitted). The “purpose, or justification” of the law is thus 
the touchstone in ascertaining content neutrality. Ibid. 
“Government regulation of expressive activity is content 
neutral so long as it is justified without reference to the 
content of the regulated speech.” Ward, 491 U.S. at 791 
(emphasis in original; internal quotation marks omitted).7 
Neither Title III’s text nor its history suggests a purpose 
of singling out a particular message, speaker, subject, or 
viewpoint for disfavored treatment. Contrast Playboy, 120 
S. Ct. at 1885 (statute that singled out particular content and 
particular speakers). To the contrary, Title III applies to 
illegal interception of “any wire, oral, or electronic com- 
munication.” The statute applies without regard to the 
content, subject matter, or participants in the communica- 
tion. Title III thus does not reflect an effort by Congress to 
“suppress, disadvantage, or impose differential burdens 
upon speech because of its content,” Turner, 512 U.S. at 642. 
Instead, Title III’s restrictions reflect an impartial legisla- 
tive judgment that individuals should be able to engage in 

7 Because the ultimate issue is whether the justification for a regu- 
lation turns on the content of the regulated expression, “even a regulation 
neutral on its face may be content based,” and hence subject to strict 
scrutiny, “if its manifest purpose is to regulate speech because of the 
message it conveys.” Turner, 512 U.S. at 645. Conversely, a law that 
regulates speech based on its subject matter may nevertheless be deemed 
content neutral, and therefore subject to intermediate scrutiny, if (for 
example) it is justified by non-communicative “secondary effects” asso- 
ciated with the speech rather than by the communicative effect of the 
speech. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-55 
(1986); see also Boos v. Barry, 485 U.S. 312, 320-321 (1988) (plurality 
opinion). 

22 

telephone conversations and other forms of confidential 
communication without fear that their conversations will be 
used by third parties without consent. The restrictions are 
thus “justified without reference to the content of the regu- 
lated speech.” Ward, 491 U.S. at 791. 

Title III thus does not seek to insulate particular facts or 
subjects from public scrutiny. Contrast Cox Broad. Corp. v. 
Cohn, 420 U.S. 469, 489 (1975) (tort of publication of private 
facts). Nor does liability under Title III depend on the 
communicative impact of the use to which the intercepted 
communication is put. See ibid. Instead, liability depends 
solely on the means by which a communication is obtained— 

i.e., whether or not the communication was obtained through 
illegal electronic surveillance. As the D.C. Circuit has 
explained, Title III “identifies matters” that the statute 
covers “ by reference not to their content, but instead to the 
process by which they are collected.” Lam Lek Chong v. 
United States Drug Enforcement Admin., 929 F.2d 729, 733 
(D.C. Cir. 1991). Consequently, an individual who obtains 
the identical content from a lawful source is free under Title 
III to disseminate or make any use of it he chooses. 

This Court has previously applied intermediate scrutiny 
to a restriction on speech that was based on the source of the 
information, while leaving unrestricted the dissemination of 
the same facts if acquired by an independent lawful means. 
In Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30-34 (1984), 
a media defendant was placed under a protective order in a 
civil action that prohibited it from disclosing discovery infor- 
mation obtained from the plaintiffs. The defendant claimed 
that the protective order was subject to strict scrutiny, but 
this Court disagreed. Id. at 32. The Court explained that 
“such a protective order prevents a party from dissemi- 
nating only that information obtained through use of the 
discovery process” while leaving the party free to “dissemi- 
nate the identical information covered by the protective 

23 

order as long as the information is gained through means 
independent of the court’s processes.” Id. at 34. Thus, the 
protective order “implicates the First Amendment rights of 
the restricted party to a far lesser extent than would 
restraints on dissemination of information in a different 
context.” Ibid. 

Because liability under Section 2511(1)(c) and (d) is tied to 
a particular means of acquisition (illegal electronic surveil- 
lance), rather than to a particular category of information, 
and because liability is not contingent on the communicative 
impact of disclosure, Title III’s object is not to exclude a 
category of information from the public domain or otherwise 
inhibit free debate. It may be that Title III’s restrictions 
will occasionally prevent the news media or other persons 
from providing specific information to the public in particu- 
lar instances. But so too does Title III’s underlying prohibi- 
tion on wiretapping. See Branzburg v. Hayes, 408 U.S. 665, 
691 (1972) (“Although stealing documents or private wire- 
tapping could provide newsworthy information, neither 
reporter nor source is immune [under the First Amendment] 
from conviction for such conduct, whatever the impact on the 
flow of news.”). The fact that some information may not be 
lawfully revealed under Title III because it was acquired in 
an illegal interception does not make the statute subject to 
strict scrutiny for regulations “that stifle[] speech on account 
of its message,” Turner, 512 U.S. at 641; rather, that inciden- 
tal effect on speech must be judged under the intermediate 
scrutiny of the O’Brien test. 

2. Title III should also be subjected to intermediate 
scrutiny because it imposes a general prohibition on the use 
of illegally intercepted communications, and does not apply 
only to communicative activities. The statutory prohibitions 
on disclosure and use, 18 U.S.C. 2511(1)(c) and (d), together 
reflect a single congressional aim to bar all exploitation of 
illegally intercepted communications when the recipient 

24 

knows or has reason to know of the illegal source. Conse- 
quently, it is unlawful for a company to use an illegally 
intercepted communication about a business rival in order to 
create a competing product; it is unlawful for an investor to 
use illegally intercepted communications in trading in 
securities; it is unlawful for a union to use an illegally inter- 
cepted communication about management (or vice versa) to 
prepare strategy for contract negotiations; it is unlawful for 
a supervisor to use information in an illegally recorded 
conversation to discipline a subordinate; and it is unlawful 
for a blackmailer to use an illegally intercepted communica- 
tion for purposes of extortion. See, e.g., 1968 Senate Report 
67 (corporate and labor-management uses); Fultz v. Gilliam, 
942 F.2d 396, 400 n.4 (6th Cir. 1991) (extortion); Dorris v. 
Absher, 959 F. Supp. 813, 815-817 (M.D. Tenn. 1997) 
(workplace discipline), aff ’d in part, rev’d in part, 179 F.3d 
420 (6th Cir. 1999). The statute has also been held to bar the 
use of illegally intercepted communications for important 
and socially valuable purposes. See In re Grand Jury, 111 
F.3d 1066, 1077-1079 (3d Cir. 1997) (Sections 2511 and 2515 
prohibit disclosure of illegally recorded conversation to 
grand jury, even where such disclosure would be in compli- 
ance with subpoena); Berry v. Funk, 146 F.3d 1003, 1011- 
1013 (D.C. Cir. 1998) (Section 2511 prohibits knowing 
investigatory use of unlawfully intercepted communications 
by Inspector General); Chandler v. United States Army, 125 
F.3d 1296, 1298-1302 (9th Cir. 1997) (Section 2511 prohibits 
United States Army from using taped conversation to 
investigate charge of adultery). 

It does not undermine the generality of Title III’s prohibi- 
tion that Congress addressed disclosure and other uses of 
illegally intercepted communications in separate subsections 
of 18 U.S.C. 2511. The statutory bar created by Section 
2511(1)(c) and (d) is identical in scope and operation to a 
unitary, undifferentiated prohibition on use. Indeed, the 

25 

only difference is one of clarity: by breaking the prohibition 
into separate provisions, Congress underscored that the 
prohibition is not limited to non-communicative uses, but 
extends to “disclosure” as well. The essential fact is that 
Congress has not singled out disclosure from other uses for 
any special burden or sanction, but instead has subjected 
communicative and non-communicative uses to the same 
legal restraint. The generality of the prohibition reinforces 
the conclusion that Congress’s interest is not in suppression 
of free expression, but in combating the dangers flowing 
from illegal interception. 

In related contexts, the Court has recognized that the 
generality of a law’s applicability is a significant factor in 
evaluating a First Amendment claim. For example, in 
Cohen v. Cowles Media Co., 501 U.S. 663 (1991), a newspa- 
per obtained information from an anonymous source in 
return for a promise of confidentiality, but proceeded to 
publish the source’s identity nonetheless. The source—who 
was connected to a political campaign and who had provided 
information about his candidate’s opponent—sued the 
newspaper for damages based on the newspaper’s failure to 
honor its promise of confidentiality. This Court held that the 
First Amendment did not bar a claim by the source for 
damages under Minnesota’s common law doctrine of prom- 
issory estoppel. See id. at 668-672. The Court rested its 
decision on the principle that “generally applicable laws do 
not offend the First Amendment simply because their 
enforcement against the press has incidental effects on its 
ability to gather and report the news.” Id. at 669. 

Cohen demonstrates that strict scrutiny does not apply to 
laws of general applicability, even when, in particular cases, 
they attach liability to the public disclosure of truthful, 
newsworthy information, such as the identity of the 
information’s source. 501 U.S. at 671-672. As the Court 
stated in Konigsberg v. State Bar, 366 U.S. 36, 50-51 (1961), 

26 

“general regulatory statutes, not intended to control the 
content of speech but incidentally limiting its unfettered 
exercise, have not been regarded as the type of law the First 
or Fourteenth Amendment forbade Congress or the States 
to pass, when they have been found justified by subordi- 
nating valid governmental interests.” 8 

Cohen, moreover, exemplifies the broader principle that, 
for First Amendment purposes, “the comprehensiveness of 
[a] statute is a virtue, not a vice, because it is evidence 
against there being a discriminatory governmental motive.” 
Hill v. Colorado, 120 S. Ct. at 2497; cf. Turner, 512 U.S. at 
661 (“broad based” regulations “do not pose the same 
dangers of suppression and manipulation that [are] posed by 

* * * more narrowly targeted regulations [aimed at 
particular speakers]”); Cincinnati v. Discovery Network, 
Inc., 507 U.S. 410, 424-426 (1993). That reasoning is equally 
applicable here. The fact that Title III’s restrictions are not 
confined to disclosure, but instead apply with equal force to 
other uses, confirms that Congress was not animated by 
hostility toward the dissemination of information generally 
or a particular category of information. Instead, the legisla- 
ture was concerned with the “noncommunicative impact,” 
O’Brien, 391 U.S. at 382, on privacy of allowing any use (ex- 
pressive or not) of illegally intercepted communications. 

8 In Cohen, the Court held that the general law at issue in that case 
was not subject to any heightened scrutiny under the First Amendment, 
notwithstanding the fact that the defendant was a member of the media 
and the law could have an incidental impact on newsgathering and 
reporting. 501 U.S. at 668-669. The Court has also recognized, however, 
that the application of a general law to “conduct with a significant ex- 
pressive element” may make intermediate scrutiny under O’Brien appro- 
priate. Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-707 (1986). While 
Cohen supports the conclusion that strict scrutiny is not appropriate for 
general laws that could have some incidental impact on speech, Title III’s 
direct application to speech makes it appropriate to apply intermediate 
scrutiny under O’Brien. 

27 

Thus, contrary to the court of appeals’ view that Title III’s 
broad scope has no bearing on its constitutionality, Pet. App. 
21a-22a, Congress’s enactment of a comprehensive ban 
demonstrates that it was acting not for prohibited anti- 
speech purposes, but for the legitimate end of ensuring the 
inviolability of vital means of private communication. 

3. Finally, the role that Title III’s restrictions play in 
encouraging the uninhibited exchange of ideas and informa- 
tion among private parties argues in favor of intermediate 
rather than strict scrutiny. “[W]here constitutionally pro- 
tected interests lie on both sides of the legal equation[,] 

* * * there is no place for a strong presumption against 
constitutionality, of the sort often thought to accompany the 
words ‘strict scrutiny.’ ” 
Nixon v. Shrink Mo. Gov’t PAC, 

120 S. Ct. 897, 911 (2000) (Breyer, J., concurring). Instead, 
when a law “implicates competing constitutionally protected 
interests in complex ways,” what is called for is a more 
reflective inquiry that considers the statutory balance struck 
between the respective interests, rather than “a simple test 
that effectively presumes unconstitutionality.” Id. at 912. 

Title III “implicates competing constitutionally protected 
interests in complex ways.” As this Court has recognized: 

The essential thrust of the First Amendment is to pro- 
hibit improper restraints on the voluntary public expres- 
sion of ideas; it shields the man who wants to speak or 
publish when others wish him to be quiet. There is 
necessarily, and within suitably defined areas, a concomi- 
tant freedom not to speak publicly, one which serves the 
same ultimate end as freedom of speech in its affirmative 
aspect. 

Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 
539, 559 (1985) (quoting Estate of Ernest Hemingway v. 
Random House, 244 N.E.2d 250, 255 (N.Y. 1968)). There can 
be little doubt that the right that Title III creates—the right 
of those engaged in conversations through private channels 

28 

to control whether the conversation remains private or is 
instead published to the world—serves that “countervailing 
First Amendment value.” Id. at 560. Nor can there be any 
doubt that it promotes the free and uninhibited exchanges in 
private conversation that would be chilled if every communi- 
cation were subject to the threat of publication or use by 
strangers. Intermediate scrutiny provides the means by 
which to take account of the “constitutionally protected 
interests * * * on both sides of the legal equation” in this 
case. Nixon, 120 S. Ct. at 911 (Breyer, J., concurring). 

C. This Court’s Cases Do Not Require The Application Of 

Strict Scrutiny To Title III 

In a line of cases culminating in Florida Star v. B.J.F., 491 
U.S. 524 (1989), this Court has applied strict scrutiny to laws 
restricting publication of truthful information on matters of 
public significance. See Landmark Communications, Inc. v. 
Virginia, 435 U.S. 829 (1978); Smith v. Daily Mail Publ’g 
Co., 443 U.S. 97 (1979); Cox Broad. Corp., 420 U.S. at 469. 
Those cases, however, were explicitly decided on their 
precise facts, which differ in critical respects from this case. 

1. In Florida Star, this Court considered the constitu- 
tionality of a state law that prohibited the mass media from 
publicly disclosing the identity of rape victims. 491 U.S. at 
526 & n.1. In that case, a newspaper obtained a rape victim’s 
identity from the police, who had inadvertently included it in 
a publicly available report; the newspaper then published 
the victim’s name as part of its coverage of the rape. Id. at 
526-528. After reviewing Landmark Communications, Cox 
Broadcasting, and Daily Mail, the Court in Florida Star 
applied what has come to be known as the “Daily Mail 
principle”—that when “‘a newspaper lawfully obtains truth- 
ful information about a matter of public significance then 
state officials may not constitutionally punish publication of 
the information, absent a need to further a state interest of 

29 

the highest order.’ ” 491 U.S. at 533 (quoting Daily Mail, 
443 U.S. at 103). 

The Daily Mail principle is inapplicable here. Both as 
originally stated and later explained in Florida Star, it 
extends only to the publication of information that has been 
“lawfully obtained.” 491 U.S. at 534. Indeed, in Florida Star 
itself, the information was not illegally obtained by anyone; 
the newspaper that published the information acquired it by 
lawful means, i.e., looking through files the police made 
publicly available. This Court specifically noted that the 
case would be different if the information were in private 
hands and legally protected: “[t]o the extent sensitive 
information rests in private hands, the government may 
under some circumstances forbid its nonconsensual acquisi- 
tion, thereby bringing outside of the Daily Mail principle 
the publication of any information so acquired.” Ibid. 
Because Title III regulates the use of private communi- 
cations that were unlawfully intercepted in violation of Title 
III, its restrictions fall “outside of the Daily Mail principle.” 

Florida Star also expressly reserved this type of case. 
The Court specifically noted that “[t]he Daily Mail principle 
does not settle the issue whether, in cases where information 
has been acquired unlawfully by a newspaper or by a 
source, government may ever punish not only the unlawful 
acquisition, but the ensuing publication as well.” 491 U.S. at 
535 n.8 (emphasis added). The Court’s reference to 
“information [that] has been acquired unlawfully by * * * 
a source” applies to cases—like this one—in which someone 
other than the person who discloses the information acquired 
it unlawfully. The significance of the language is also 
illuminated by the Court’s observation in footnote eight that 
this issue was “raised but not definitively resolved” in the 
Pentagon Papers case, New York Times Co. v. United 
States, 403 U.S. 713 (1971) (per curiam). In that case, the 
issue of illegal acquisition of information was presented by 

30 

the actions of the source, not by the actions of the 
newspapers that later sought to publish the information. 

2. The differences between Title III and the laws at issue 
in the Florida Star line of cases also make apparent the 
appropriateness of intermediate rather than strict scrutiny. 
First, neither Florida Star nor its predecessors involved a 
“general regulatory statute[]” that, like Title III, “inciden- 
tally limit[s]” expressive activities in particular cases, 
Konigsberg, 366 U.S. at 50. To the contrary, in each of those 
cases, the statute under review was specifically directed at 
speech alone. In Florida Star, the law prohibited publication 
of the name of a rape victim “in any instrument of mass 
communication.” 491 U.S. at 526. In Daily Mail, the statute 
barred “publication” of the names of juvenile offenders “in 
any newspaper.” 443 U.S. at 98, 104-105. In Cox Broadcast- 
ing, the statute and tort at issue made it unlawful to “print 
and publish, broadcast, televise, or disseminate” by radio the 
identity of rape victims or otherwise to publicize “private” 
facts. 420 U.S. at 471 n.1, 487. And in Landmark Communi- 
cations, the law made it unlawful to “divulge[]” papers or 
information about particular proceedings. 435 U.S. at 831 

n.1. This Court squarely held in Cohen v. Cowles Media Co., 
supra, that a generally applicable law that does not single 
out expression is not governed by Florida Star, even if the 
law in a particular case is applied to a media defendant based 
on its disclosure of truthful information about a matter of 
public significance. See 501 U.S. at 668-669. 

Second, the statutes in Florida Star and its predecessors 
were manifestly content based rather than content neutral. 
In each case, the statute specifically identified a particular 
fact to be suppressed or regulated speech pertaining to a 
particular subject matter. In Florida Star, the statute 
prohibited dissemination of the identity of rape victims, 491 
U.S. at 526, and was defended by the State’s interest in 
keeping the identity of such victims a secret, id. at 537. The 

31 

laws at issue in Florida Star’s predecessors were likewise 
subject and content specific. See Daily Mail, 443 U.S. at 98 
(statute prohibiting publication of name of juvenile offender 
to protect identity); Cox Broad., 420 U.S. at 471 n.1, 487 
(statute prohibiting publication of name of rape victim, and 
common-law tort prohibiting disclosure of “private infor- 
mation,” both invoked to protect victim’s identity); Land- 
mark Communications, 435 U.S. at 831 n.1, 835-836 (bar on 
divulgence of testimony, evidence, and papers in judicial 
discipline proceedings in order to protect judge’s reputa- 
tion). In contrast to Title III, none of those statutes barred 
disclosure and all other uses of information, not based on its 
content, but based on the means by which the information 
was acquired.9 

Finally, Florida Star turned to some degree on the fact 
that the information at issue was released by the 
government itself. Although the Court in Daily Mail made 
clear that its analysis did not depend on whether information 

9 The law at issue in Landmark prohibited the disclosure of testimony 
and evidence before a judicial misconduct commission. Read literally, the 
law based its prohibition on the source of the information, since it applied 
to all “papers” filed with the commission (regardless of their substance) 
and did not prohibit publication of allegations of judicial misconduct made 
outside the confines of the commission. See 435 U.S. at 830 n.1. But the 
law in Landmark was still not content neutral, since the State singled out 
a particular type of proceeding by subject matter (judicial misconduct), 
and its manifest purpose was preventing public knowledge of the antici- 
pated content at such proceedings, e.g., allegations that might injure a 
“judge’s reputation” or damage public “confidence in the judicial system.” 
Id. at 833. The state grand jury secrecy law addressed by the Court in 
Butterworth v. Smith, 494 U.S. 624 (1990), can be understood as not 
content neutral for similar reasons, i.e., it was justified by the interest in 
suppressing speech about the workings of a particular governmental pro- 
ceeding. See id. at 632-634. In addition, Butterworth involved a prohibi- 
tion on disclosure of information acquired by a witness independently of 
the grand jury, i.e., lawfully obtained. Indeed, it was for that reason that 
the Court found Daily Mail and Florida Star controlling. Id. at 632. 

32 

came from a governmental source, 443 U.S. at 103 (news- 
paper is entitled to publish information based on usual 
methods of newsgathering), “[w]here information is 
entrusted to the government, a less drastic means than 
punishing truthful publication almost always exists for 
guarding against the dissemination of private facts.” 
Florida Star, 491 U.S. at 534. In contrast, when information 
is in private hands—and where (as here) the government has 
made the initial acquisition of the information a crime—the 
force of that reasoning is greatly diminished. The Court in 
Florida Star also expressed concern that “timidity and self- 
censorship” might result if the news media were subject to 
sanctions for publishing information “released, without 
qualification, by the government,” because the press would 
then have to “sift[] through government press releases, 
reports, and pronouncements to prune out material arguably 
unlawful for publication.” Id. at 535-536. That concern has 
no bearing where, as here, the information was obtained 
from a private source under circumstances that indicate that 
the source obtained the information unlawfully, eliminating 
any “implied representations of the lawfulness of dis- 
semination,” id. at 536, from the government or anyone else. 

In sum, Florida Star and its predecessors differ in basic 
ways from the case now before this Court. Those cases 
involved laws that singled out speech for different, and 
disfavored treatment, compared to non-speech uses of the 
same information; restricted speech on the basis of its 
content; sought to foreclose public knowledge of specific 
information altogether; penalized the disclosure of informa- 
tion even when its initial acquisition was lawful; and sanc- 
tioned the press for publishing information provided by the 
government itself or, in many cases, that was related to the 
activities of the government itself. Because Title III’s 
restrictions differ from those laws in every one of those 
respects, subjecting its provisions to strict scrutiny under 

33 

Florida Star and its predecessors would contravene this 
Court’s direction that conflicts between free speech and 
privacy values must be resolved on the basis of “limited 
principles that sweep no more broadly than the appropriate 
context of the * * * case.” 491 U.S. at 533. 

II. Title III’s Restrictions Satisfy Intermediate 
Scrutiny 

A law that is subject to intermediate scrutiny under the 
First Amendment must meet three basic requirements. 
First, it must “further[] an important or substantial gov- 
ernmental interest.” O’Brien, 391 U.S. at 377. Second, the 
governmental interest must be “unrelated to the suppression 
of free expression.” Ibid. Third, “the incidental restriction 
on alleged First Amendment freedoms [must be] no greater 
than is essential to the furtherance of that interest.” Ibid. 
Title III’s prohibitions meet each of those requirements. 

A. The Restriction On Use And Disclosure Furthers 

Significant Interests Unrelated To The Suppression of 

Expression 

The fundamental purpose of Title III is to ensure that the 
public may use vital means of private wire, electronic, and 
oral communication without fear that private communica- 
tions will be intercepted or used without their permission or 
consent. See pp. 2-5, supra. Title III thus places the force of 
law behind the security of the nation’s widely used channels 
of private communication, including telephones, cellular 
phones, faxes, and e-mail. In so doing, Title III supports 
every person’s reasonable expectation of privacy in his 
personal telephone conversations. See Katz v. United 
States, 389 U.S. 347, 352 (1967). See also Harper & Row, 471 
U.S. at 557-558 (noting the First Amendment right of each 
individual to determine whether or not he will speak 
publicly). 

34 

The use and disclosure prohibitions serve two essential 
purposes in Title III’s protective scheme. First, by guar- 
anteeing to individuals the right to speak freely without 
having their private conversations exposed to “the uninvited 
ear” of strangers, Katz, 389 U.S. at 352, Title III encourages 
exchanges of information and ideas. Relatedly, Title III 
promotes the development and use of new technological 
methods of communication, a goal that also serves First 
Amendment values. Second, Title III’s use and disclosure 
prohibitions reinforce the underlying restriction on illegal 
interceptions; without that restraint, a person could accede 
to the temptation to engage in surreptitious surveillance 
with knowledge that the fruits could be disclosed through or 
otherwise used by third parties. 

1. As this Court has recognized, the injury to privacy 
that flows from unlawful interceptions does not end with the 
interception itself. To the contrary, as the Court stated in 
upholding a grand jury witness’s right not to answer ques- 
tions based on an illegal interception of his communications, 
the disclosure following the initial intrusion “compounds the 
statutorily proscribed invasion of * * * privacy.” Gelbard 

v. United States, 408 U.S. 41, 52 (1972). By prohibiting the 
use and disclosure of illegally intercepted communications, 
Title III directly guards against that further intrusion into 
the integrity of private communications. And, in so doing, it 
advances the First Amendment value in the choice not to 
speak publicly. See Harper & Row, 471 U.S. at 559; Wooley 

v. Maynard, 430 U.S. 705, 714 (1977). 
Because disclosure and other uses of illegally intercepted 
communications multiply the injury that results from inter- 
ception, they also multiply the degree to which such intru- 
sions inhibit the free exchange of thoughts and ideas. If 
individuals lack assurance that the law will protect the 
confidentiality of their conversations, their willingness to 
speak candidly will necessarily suffer. See United States v. 

35 

Nixon, 418 U.S. 683, 705 (1974) (“Human experience teaches 
that those who expect public dissemination of their remarks 
may well temper candor with a concern for appearances and 
for their own interests.”); Swidler & Berlin v. United States, 
524 U.S. 399, 407 (1998) (“fear of disclosure,” even after 
death, would likely lead to a client’s “withholding of informa- 
tion from counsel”); Jaffee v. Redmond, 518 U.S. 1, 10 (1996) 
(lack of assurance of confidentiality would impede psycho- 
therapy). Indeed, the profound chilling effect created by the 
possibility of unauthorized publication has been recognized 
by the common law from this nation’s earliest days. As 
Justice Story explained in the context of private letters more 
than 150 years ago, publication of such communications 
“strikes at the root of all that free and mutual interchange of 
advice, opinions, and sentiments, between relatives and 
friends, and correspondents, which is so essential to the well- 
being of society,” by “compel[ing] every one in self defence 
to write, even to his dearest friends, with the cold and formal 
severity, with which he would write to his wariest oppo- 
nents, or most implacable enemies.” 2 J. Story, Commen- 
taries on Equity Jurisprudence 220-221 (1836 ed., reprinted 
1972). 

10 Title III’s use and disclosure prohibition is thus 
crucial to ensuring that the threat of technological incursion 
into private communications does not erode individuals’ 
willingness and ability to exchange frank and candid views. 

In 1986, Congress expanded Title III’s protection against 
illegal surveillance to reach electronic communications. 
Electronic Communications Privacy Act of 1986 (ECPA), 

10 See also Denis v. LeClerc, 5 Am. Dec. 712, 716, 1811 WL 986, at *5-*6 
(La. Terr. Super. Orleans 1811); F. Lieber, On Civil Liberty and Self- 
Government 109 (1853) (Because “freedom of communion” between 
individuals is “one of the primary elements of civil liberty,” and because 
nobody “can imagine himself free if his communion with his fellows is 

* * * submitted to surveillance,” all “[f]ree nations” guarantee not merely 
“the liberty of the press” but “the sacredness of epistolary communion.”). 

36 

Pub. L. No. 99-508, 100 Stat. 1848. Again, Congress 
recognized the damage to candid expression that would 
result from an unimpeded ability to disclose illegally inter- 
cepted private communications. Congress noted that the 
“tremendous advances in telecommunications and computer 
technologies have carried with them comparable technologi- 
cal advances in surveillance devices and techniques,” with 
the result that private communications and electronically 
stored private data “may be open to possible wrongful use 
and public disclosure by * * * unauthorized private 
parties.” S. Rep. No. 541, 99th Cong., 2d Sess. 3 (1986) 
(emphasis added). Cellular telephones exemplify the type of 
communications technology that would be substantially less 
attractive to users if interception and dissemination of their 
calls were lawful. Congress proposed to protect such new 
forms of computer and telecommunications interchange that 
“American citizens and American businesses are using 

* * * in lieu of, or side-by-side with, first class mail and 
common carrier telephone services.” Id. at 5. 

11 

11 As Congress noted in expanding the scope of Title III in 1986, the 
absence of legal protection against surreptitious interceptions would 
“discourage potential customers from using innovative communications 
systems” and “businesses from developing new [and] innovative forms of 
telecommunications and computer technology.” S. Rep. No. 541, supra, at 

5. See Electronic Communications Privacy Act: Hearings Before the 
Subcomm. on Courts, Civil Liberties, and the Administration of Justice of 
the House Comm. on the Judiciary, 99th Cong., 1st & 2d Sess. 44 (1985 & 
1986) (ECPA Hearings) (testimony of Fred W. Weingarten, Program 
Manager, Communication and Technologies Program, Office of Technology 
Assessment) (“There are two dangers in leaving this type of new 
application unprotected. One danger, of course, is a gradual erosion of 
privacy, a loss of the right to whisper and to keep our dealings 
confidential. The other danger is that we may be denied useful 
applications and useful new technologies because they’re unprotected. 
Consumers and users simply will not use these services if they are not 
properly protected, and they will not be developed and offered in the 
marketplace.”). See also id. at 4, 38-39, 70, 93, 155 (similar testimony). 

37 

Title III thus advances a significant purpose in protecting 
the modern equivalents of letters, such as phone calls, e- 
mails, and faxes. And because electronic intrusions into 
modern communications—unlike intrusions into letters—can 
be accomplished without the physical access that ordinarily 
permits prevention and detection, the need for legal pro- 
tection against unauthorized disclosure in this context is 
even greater. Attesting to the importance of that interest, 
more than three dozen States and the District of Columbia 
have enacted legislation proscribing the unauthorized use 
and disclosure of illegally intercepted communications. See 
Boehner v. McDermott, 191 F.3d 463, 468 n.6 (D.C. Cir. 
1999), petition for cert. pending, No. 99-1709. 

2. Prohibiting the use and disclosure of illegally inter- 
cepted communications also reinforces the underlying pro- 
hibition on illegal surveillance itself. In particular, by 
barring the knowing use and disclosure of illegally inter- 
cepted communications, Title III’s prohibitions reduce de- 
mand for such communications and deprive potential wire- 
tappers of the fruits of their labors. Boehner, 191 F.3d at 
469-470; see Fultz v. Gilliam, 942 F.2d 396, 401 (6th Cir. 
1991). 

The need to prohibit such uses is particularly important 
because illegal interception is by nature a clandestine enter- 
prise. See President’s Commission on Law Enforcement and 
Administration of Justice, The Challenge of Crime in a Free 
Society 202 (1967) (“Detection of surveillance devices is 
difficult.”); 1968 Senate Report 69 (because of surreptitious 
nature of activity, fact or source of such an invasion “[a]ll too 
often * * * will go unknown”); id. at 96 (“[U]nlawful 
electronic surveillance is typically a clandestine crime.”); 
ECPA Hearings 54-55 (noting the increasing difficulty of 
detecting surveillance). 

12 If untrammeled disclosure by non- 

12 Indeed, “[t]he last 20 years have seen an extraordinary explosion in 
technologies for invading people’s privacy.” Protection from Personal 

38 

participants were lawful, illegally intercepted communica- 
tions could be easily “laundered” to prevent discovery of the 
interceptor. See Boehner, 191 F.3d at 471 (invalidation of 
use or disclosure prohibition would effectively “render[] the 
government powerless to prevent disclosure of private 
information, because criminals”—who may bug residences, 
intercept phone calls, or engage in other forms of unlawful 
electronic surveillance—“can literally launder illegally 
intercepted information”) (internal quotation marks 
omitted). All an individual has to do is covertly carry on an 
interception—an activity that can be conducted from the 
privacy of the home —and anonymously provide a tape of it 
to a person known to have an interest in disclosing it. If the 
ban on illegal interceptions could be evaded that easily, there 
would be a large incentive to carry out illegal interceptions 
in order to make use of them through third parties. 

3. The court of appeals did not dispute the legitimacy of 
the above interests. But it declared the first interest (in 
privacy and promoting free expression) to be non-cognizable 

Intrusion Act and Privacy Protection Act of 1998: Hearing Before the 
House Comm. on the Judiciary, 105th Cong., 2d Sess. 75 (1998) (statement 
of Professor Lawrence Lessig, Harvard Law School). For example, an 
FBI publication reports that “[l]ittle or no technical expertise is needed to 
convert a readily available computer equipped with sound capability, a 
modem, and the appropriate software into a device that will allow the 
surreptitious interception of any audio generated within its proximity.” C. 
W. O’Neal, Surreptitious Audio Surveillance: The Unknown Danger to 
Law Enforcement, FBI Law Enforcement Bulletin, June 1998, at 10, 11. 
Even conversations held behind closed doors may not be safe from 
intrusion. According to some, eavesdroppers can listen through closed 
windows using a laser listening device. When the laser beam is pointed at 
a window, the device detects the window’s vibration and thus con- 
versations going on inside; the device can work from as far as a quarter- 
mile away. See T. Larsen, The Layman’s Guide to Electronic 
Eavesdropping 55-56 (1996). See also http://www.espionage-store.com/ 
surveillance.html (describing device); http://www.pimall.com/nais/n.lazer. 
eaves.html (similar). 

39 

under intermediate scrutiny, and the latter (deterrence) too 
conjectural to sustain the statute. Both of those conclusions 
are incorrect. 

a. The court of appeals rejected the government’s 
interest in preserving privacy and the right not to speak 
publicly as “content-based” and therefore not cognizable for 
purposes of intermediate scrutiny. Pet. App. 26a-27a. In so 
concluding, the court of appeals erroneously assumed that 
Title III’s restrictions are designed to protect individuals 
from the harms associated with the disclosure of “intimate 
facts concerning one’s life.” Id. at 26a. But the spectrum of 
communications that Title III covers is unlimited in subject 
matter or nature; it encompasses business, social, personal, 
and familial interchange, and protects serious debate as well 
as idle conversation. Title III’s restrictions thus do not seek 
to protect against the injury that occurs when particularly 
personal facts, or identified pieces of information, are dis- 
closed. Instead, Title III protects against the magnified 
harm that results when any illegally intercepted conver- 
sation is disseminated to a wider audience. Just as having 
additional eavesdroppers rather than a single eavesdropper 
listening in on a conversation multiplies the intrusion into 
privacy regardless of content, so too multiplying the number 
of individuals to whom the conversation is disclosed after the 
fact increases the harm, whether or not intimate facts are 
involved. The interests in preventing that increased injury 
and in reassuring individuals that they can communicate 
freely and candidly in private are independent of the content 
of any communications that could be disclosed absent the 
prohibition. 

It is plain that this interest is directly advanced by Title 
III’s prohibition on disclosure and other uses of illegally 
intercepted information. Title III does not impose restric- 
tions on some speakers while leaving others who have the 
same knowledge from the illegal source free to disseminate 

40 

the communication. Such selectivity in speakers undermined 
the degree to which the laws involved in Florida Star and 
Daily Mail advanced their stated purposes. But Title III 
does not single out media of mass communication, Florida 
Star, 491 U.S. at 526 n.1, 540, or newspapers, Smith v. Daily 
Mail, 443 U.S. at 98, 104; it applies evenhandedly to all 
speakers. Congress thereby crafted a law that does all it can 
reasonably do to advance its underlying purpose of protect- 
ing the privacy of wire, oral, and electronic communications. 

b. The court of appeals likewise erred in dismissing the 
deterrent function of the Title III prohibition. See Pet. App. 
32a-34a. In particular, the court expressed skepticism that 
reducing the opportunities to disclose illegally intercepted 
communications would reduce the frequency of unlawful 
interceptions, dismissing the link between them as “ipse 
dixit” that rests on “nothing more than assertion and conjec- 
ture.” Id. at 33a-34a. But that very logic has long been 
accepted as a justification for statutes that prohibit the 
knowing receipt and sale of stolen property. See, e.g., 
United States v. Gardner, 516 F.2d 334, 349 (7th Cir.), cert. 
denied, 423 U.S. 861 (1975); United States v. Bolin, 423 F.2d 
834, 838 (9th Cir.), cert. denied, 398 U.S. 954 (1970). By 
denying the thief an outlet for distribution of the stolen 
goods, the law deters the underlying act of theft. See 2 W. 
R. LaFave & A. W. Scott, Jr., Substantive Criminal Law 
§ 8.10(a), at 422 (1986) (“Without such receivers, theft ceases 
to be profitable. It is obvious that the receiver must be a 
principal target of any society anxious to stamp out theft in 
its various forms.”). This Court relied on a similar rationale 
in New York v. Ferber, 458 U.S. 747, 759-760 (1982), when it 
held that “[t]he most expeditious if not the only practical 
method” of effectuating a ban on the production of child 
pornography “may be to dry up the market for this material” 
by imposing sanctions on advertising and distribution. And 
the Court relied on the same rationale again to sustain a 

41 

prohibition on the possession of child pornography in 
Osborne v. Ohio, 495 U.S. 103, 109-110 (1990), finding it 
“surely reasonable for the State to conclude that it will 
decrease the production of child pornography if it penalizes 
those who possess and view the product, thereby decreasing 
demand.” 

13 

The court of appeals suggested that the government was 
obligated to “prove” the deterrent effect of the use restric- 
tions on illegal surveillance. Pet. App. 34a. In light of the 
history of statutory prohibitions on fencing stolen property, 
and the holdings of cases such as Ferber, no such evidentiary 
showing is required. The well-recognized connection be- 
tween the existence of outlets for illegally acquired goods 
and the incentive to engage in the illegal acquisition of those 
goods provides proof enough of the proposition that more 
surveillance will take place if eavesdroppers enjoy unre- 
stricted demand for the fruits of their illegal labors. Cf. 
Nixon v. Shrink Mo. Gov’t PAC, 120 S. Ct. at 906 (“The 
quantum of empirical evidence needed to satisfy heightened 
judicial scrutiny of legislative judgments will vary up or 
down with the novelty and plausibility of the justification 
raised.”). Insistence on rigid empirical proof of a deterrent 
connection in this context could prevent Congress from 

13 Respondents attempt to distinguish the market for stolen communi- 
cations from the markets for stolen goods and child pornography by 
pointing out that “money drives the market” for the latter products 
whereas, in this case, no one appears to have paid the interceptor for the 
taped conversation. Vopper Br. in Opp. 12 n.7. That does not mean that 
the interception in this case had no economic motive; the individual who 
intercepted the phone conversation and passed it to Jack Yocum was 
likely motivated by a desire to embarrass the union and thwart its bar- 
gaining demands. In any event, whatever motivates an illegal intercep- 
tion—and motives range from acquiring embarrassing information about a 
neighbor to achieving political ends—the incentive to do so will be sharply 
diminished if there is a legal impediment to use or disclosure of the 
information. 

42 

regulating at all. “[A]s a practical matter it is never easy to 
prove a negative [and] it is hardly likely that conclusive 
factual data could ever be assembled.” Elkins v. United 
States, 364 U.S. 206, 218 (1960) (discussing exclusionary 
rule). 

14 

B. The Restrictions On Use And Disclosure Do Not 

Unnecessarily Restrict Expressive Activities 

The burden that Title III’s restrictions place on 
expressive activity is “no greater than is essential to the 
furtherance of th[e] interest[s],” O’Brien, 391 U.S. at 377, 
underlying Title III. “To satisfy this standard, a regulation 
need not be the least speech-restrictive means of advancing 
the Government’s interests.” Turner, 512 U.S. at 662. 
Instead, “the requirement of narrow tailoring is satisfied so 
long as the * * * regulation promotes a substantial gov- 
ernment interest that would be achieved less effectively 
absent the regulation.” Ibid. (internal quotation marks 
omitted). A regulation is considered to be narrowly tailored, 
for these purposes, as long as “the means chosen do not 
burden substantially more speech than is necessary to 
further the government’s legitimate interests.” Ibid. (inter- 
nal quotation marks omitted). 

1. The government’s legitimate interest in preserving 
the confidential nature of all private wire, oral, and 

14 Even if one were to assume that empirical evidence were required, 
however, the government was not given the opportunity to meet that 
burden, as it is entitled to do under 28 U.S.C. 2403. When the constitu- 
tionality of an Act of Congress is called into question in private litigation, 
federal courts are required by law to give the United States an opportu- 
nity for “presentation of evidence” on the constitutional issue. 28 U.S.C. 
2403(a). In this case, however, the Attorney General did not receive 
notice of respondents’ constitutional challenge to Title III until after the 
oral argument in the court of appeals, see p. 8, supra, and the court of 
appeals indicated that it found the government’s position to be 
“unsupported” for the first time in its opinion. Pet. App. 34a. 

43 

electronic communications, regardless of their subject 
matter, would be less effectively met, if met at all, in the 
absence of Title III’s comprehensive use and disclosure 
prohibition. Persons engaged in telephone conversations 
reasonably expect and wish their communications to remain 
confidential. Katz, 389 U.S. at 352. That reasonable 
expectation of privacy would be severely jeopardized by the 
multiplication of the intrusion accomplished by disclosure 
and other uses. While the knowledge (or suspicion) that a 
conversation could be illegally intercepted would deter 
private communications, it is far more chilling of speech for a 
person to know that his private expressions may later be 
reported with impunity to the world at large. 

It would not be reasonable to require the government to 
confine the protections of Section 2511(1)(c) and (d) to 
disclosure or other uses of “sensitive” or “private” infor- 
mation. See Vopper Br. in Opp. 12 n.7. Such a rule in itself 
would create a content-based distinction. Moreover, it would 
be ineffective to reassure speakers that conversations of any 
sort would remain confidential, as intended. That 
uncertainty would dampen the development and use of new 
technological media for communication. And if only some 
private speech were protected, speakers would be unsure, at 
the time of a communication, what subjects would be cov- 
ered as sufficiently sensitive or private, thus chilling commu- 
nication as whole. As a result, the interests underlying Title 
III “would be achieved less effectively absent the regula- 
tion,” Turner, 512 U.S. at 662. 

2. Congress’s interests could not be as effectively 
achieved by relying exclusively on Title III’s underlying 
prohibition on unauthorized electronic surveillance (18 
U.S.C. 2511(1)(a)). As noted above, the use of intercepted 
communications causes additional harm to privacy interests 
beyond that created by interception alone. See Gelbard, 408 
U.S. at 52 (disclosure “compounds the statutorily proscribed 

44 

invasion of * * * privacy”). Without Title III’s prohibition 
on use and disclosure, the government would be powerless to 
counteract the chilling effect that exploitation of unlawfully 
intercepted communications has on the public’s confidence in 
the security of private means of communication. 

Deterrence of illegal interceptions would also be markedly 
less effective if Title III’s prohibition reached only the ban 
on interceptions. Electronic surveillance is, by its very 
nature, a surreptitious enterprise, and if illegally intercepted 
communications could be “laundered” through non-partici- 
pants, the illegal wiretapper could often achieve his goals 
while escaping punishment. Boehner, 191 F.3d at 471. 
Indeed, this case graphically illustrates the fact that a per- 
son who illegally intercepts a conversation and wishes to 
make it public can do so, without any risk to himself, by 
turning it over anonymously to third parties who have an 
interest in disclosing its contents. Given the ease with which 
the identity of the intercepting party can be concealed, Title 
III would lose much of its force if the only means of pre- 
venting invasions into the sanctity of private communi- 
cations were prosecution of the illegal interceptor himself. 

Finally, as noted above, Title III’s prohibitions extend no 
further than necessary to achieve its goals. Title III does 
not impose any restriction on the use or disclosure of 
information obtained by means other than illegal sur- 
veillance. And Title III was not intended to prohibit anyone 
from disseminating that which is already common 
knowledge. See 1968 Senate Report 93 (“[t]he disclosure of 
the contents of an intercepted communication that had 
already become ‘public information’ or ‘common knowledge’ 
would not be prohibited” by Section 2511(1)(c) and (d)). Title 
III is thus crafted to take account of the fact that the 
interests underlying its prohibition “fade once information 
already appears on the public record.” Florida Star, 491 
U.S. at 532 n.7. In sum, Title III’s restrictions on the use 

45 

and disclosure of illegally intercepted communications are an 
appropriately tailored means of protecting privacy and 
speech interests without impinging unnecessarily on the free 
flow of information and ideas. 

C. Title III’s Restrictions On Use And Disclosure Do Not 

Impermissibly Chill Protected Speech 

The court of appeals expressed concern that the threat of 
liability under Title III for the use or disclosure of illegally 
intercepted communications would deter the news media 
from disseminating information that is not the product of 
illegal electronic surveillance. Pet. App. 36a. In particular, 
the court of appeals expressed concern that “[r]eporters 
often will not know the precise origins of information they 
receive from witnesses and other sources.” Ibid. 

That concern is unfounded. If reporters in fact do not 
know the origins of their information, they cannot be held 
liable under Title III; the prohibitions in Section 2511(1)(c) 
and (d) are violated only when a defendant “know[s] or ha[s] 
reason to know” that the communication was intercepted in 
violation of Title III. That scienter requirement is demand- 
ing. Because the “reason to know” standard—unlike the 
phrase “should know”—“implies no duty” to investigate or to 
discover additional facts, Restatement (Second) of Torts § 12 
cmt. a (1965), there can be no liability for simple failure to 
discover the unlawful origins of a communication, no matter 
how negligent. See Novicki v. Cook, 946 F.2d 938, 941 (D.C. 
Cir. 1991) (reason-to-know standard “imposes no duty of 
inquiry; it merely requires that a person draw reasonable 
inferences from information already known to him”). 
Instead, liability may attach only if the defendant has actual 
“knowledge of facts from which a reasonable man of ordinary 
intelligence or one of the superior intelligence of the actor 
would either infer” that the fact in question exists “or would 
regard its existence as so highly probable that his conduct 
would be predicated upon the assumption that the fact did 

46 

exist.” Restatement (Second) of Torts § 12 cmt. a (emphasis 
added). That means that, unless a person actually possesses 
information from which he or a reasonable person would 
infer that the communication was unlawfully intercepted, 
liability cannot attach. 

That scienter requirement dispels any legitimate concern 
regarding the chilling effect of the challenged provisions. To 
the extent any residual concerns remain, moreover, those 
concerns could be addressed by procedural measures that 
stop short of invalidating the provisions themselves. See 
Pet. App. 56a-57a (Pollak, D.J., dissenting). For example, 
when a claim is brought under Title III based on the dis- 
closure of information about matters of public significance by 
persons who were not involved in the illegal interception, 
Title III’s “reason to know” standard could be supplemented 
by requiring proof that the defendant acted with reckless 
disregard of facts indicating the information’s illegal origins. 
Cf. New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 
(adopting “actual malice” standard in certain defamation 
cases). A court could also consider employment of an 
elevated standard of proof of scienter in civil cases, such as 
proof by “clear and convincing” evidence. Cf. Gertz v. Robert 
Welch, Inc., 418 U.S. 323, 342 (1974) (requiring clear and 
convincing evidence of actual malice in certain defamation 
cases). Finally, appellate courts might be warranted in 
conducting independent review of the findings of the trier of 
fact. Cf. Bose Corp. v. Consumers Union of United States, 
Inc., 466 U.S. 485, 498-511 (1984) (de novo appellate review 
of findings regarding actual malice). See generally Waters v. 
Churchill, 511 U.S. 661, 669-671 (1994) (plurality opinion) 
(discussing circumstances in which First Amendment re- 
quires modifications of burdens of proof and other pro- 
cedural rules). To the extent that enforcement of the 
standards of Title III leaves any question that the press may 
act with excessive caution, such procedural measures, 

47 

individually or collectively, would be more than adequate to 
ensure that Title III does not deter the dissemination of 
information from sources other than illegal electronic 
surveillance. Such an approach would far better reconcile 
the privacy and expression interests in this case than a 
holding that invalidates Congress’s effort to provide compre- 
hensive legal protection against the unauthorized dis- 
semination of information acquired through illegal inter- 
ceptions. 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 
DAVID W. OGDEN 

Assistant Attorney General 
MICHAEL R. DREEBEN 

Deputy Solicitor General 
JEFFREY A. LAMKEN 

Assistant to the Solicitor 

General 
DOUGLAS N. LETTER 
SCOTT R. MCINTOSH 

Attorneys 

SEPTEMBER 2000 

APPENDIX 

1. The First Amendment to the United States Con- 
stitution provides: 

Congress shall make no law respecting an estab- 
lishment of religion, or prohibiting the free exercise 
thereof; or abridging the freedom of speech, or of the 
press; or the right of the people peaceably to assemble, 
and to petition the Government for a redress of 
grievances. 

2. 18 U.S.C. 2510 provides in pertinent part: 

§ 2510. Definitions 

As used in this chapter— 

(1) “wire communication” means any aural transfer made 
in whole or in part through the use of facilities for the 
transmission of communications by the aid of wire, cable, or 
other like connection between the point of origin and the 
point of reception (including the use of such connection in a 
switching station) furnished or operated by any person 
engaged in providing or operating such facilities for the 
transmission of interstate or foreign communications or 
communications affecting interstate or foreign commerce 
and such term includes any electronic storage of such 
communication; 

(2) “oral communication” means any oral communication 
uttered by a person exhibiting an expectation that such 
communication is not subject to interception under cir- 
cumstances justifying such expectation, but such term does 
not include any electronic communication; 

(1a) 

2a 

* * * 

(4) “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. 

* * * 

(8) “contents”, when used with respect to any wire, oral, 
or electronic communication, includes any information 
concerning the substance, purport, or meaning of that 
communication; 

* * * 

(12) “electronic communication” means any transfer of 
signs, signals, writing, images, sounds, data, or intelligence 
of any nature transmitted in whole or in part by a wire, 
radio, electromagnetic, photoelectronic or photooptical 
system that affects interstate or foreign commerce, but does 
not include– 

(A) any wire or oral communication; 

(B) any communication made through a tone-only 
paging device; or 

(C) any communication from a tracking device (as 
defined in section 3117 of this title); 

3. 18 U.S.C. 2511 provides in pertinent part: 

§ 2511. 

Interception and disclosure of wire, oral, or 

electronic communications prohibited 

(1) Except as otherwise specifically provided in this 
chapter [18 U.S.C. 2510-2520] any person who— 

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

3a 

intercept, any wire, oral, or electronic communication; 
[or] 

* * * 

(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, 
encrypted, or transmitted using modulation techniques the 

4a 

essential parameters of which have been withheld from the 
public with the intention of preserving the privacy of such 
communication, then— 

(i) if the communication is not the radio portion of a 
cellular telephone communication, a cordless telephone 
communication that is transmitted between the cordless 
telephone handset and the base unit, a public land mobile 
radio service communication or a paging service 
communication, and the conduct is not that described in 
subsection (5), the offender shall be fined under this title 
or imprisoned not more than one year, or both; and 

(ii) if the communication is the radio portion of a 
cellular telephone communication, a cordless telephone 
communication that is transmitted between the cordless 
telephone handset and the base unit, a public land mobile 
radio service communication or a paging service 
communication, the offender shall be fined under this 
title. 

(c) Conduct otherwise an offense under this subsection 
that consists of or relates to the interception of a satellite 
transmission that is not encrypted or scrambled and that is 
transmitted— 

(i) to a broadcasting station for purposes of re- 
transmission to the general public; or 

(ii) as an audio subcarrier intended for redistri- 
bution to facilities open to the public, but not including 
data transmissions or telephone calls, 

is not an offense under this subsection unless the conduct is 
for the purposes of direct or indirect commercial advantage 
or private financial gain. 

(5)(a)(i) If the communication is— 

5a 

(A) a private satellite video communication that is 
not scrambled or encrypted and the conduct in violation 
of this chapter is the private viewing of that 
communication and is not for a tortious or illegal purpose 
or for purposes of direct or indirect commercial 
advantage or private commercial gain; or 

(B) a radio communication that is transmitted on 
frequencies allocated under subpart D of part 74 of the 
rules of the Federal Communications Commission that is 
not scrambled or encrypted and the conduct in violation 
of this chapter is not for a tortious or illegal purpose or 
for purposes of direct or indirect commercial advantage 
or private commercial gain, 

then the person who engages in such conduct shall be subject 
to suit by the Federal Government in a court of competent 
jurisdiction. 

(ii) In an action under this subsection— 

(A) if the violation of this chapter is a first offense 
for the person under paragraph (a) of subsection (4) and 
such person has not been found liable in a civil action 
under section 2520 of this title, the Federal Government 
shall be entitled to appropriate injunctive relief; and 

(B) if the violation of this chapter is a second or 
subsequent offense under paragraph (a) of subsection (4) 
or such person has been found liable in any prior civil 
action under section 2520, the person shall be subject to 
a mandatory $500 civil fine. 

(b) The court may use any means within its authority to 
enforce an injunction issued under paragraph (ii)(A), and 
shall impose a civil fine of not less than $500 for each 
violation of such an injunction. 

6a 

4. 18 U.S.C. 2512 provides: 

§ 2512. 

Manufacture, distribution, possession, and ad- 

vertising of wire, oral, or electronic communication 
intercepting devices prohibited 

(1) Except as otherwise specifically provided in this 
chapter, any person who intentionally— 

(a) sends through the mail, or sends or carries in 
interstate or foreign commerce, any electronic, 
mechanical, or other device, knowing or having reason to 
know that the design of such device renders it primarily 
useful for the purpose of the surreptitious interception 
of wire, oral, or electronic communications; 

(b) manufactures, assembles, possesses, or sells any 
electronic, mechanical, or other device, knowing or 
having reason to know that the design of such device 
renders it primarily useful for the purpose of the 
surreptitious interception of wire, oral, or electronic 
communications, and that such device or any component 
thereof has been or will be sent through the mail or 
transported in interstate or foreign commerce; or 

(c) places in any newspaper, magazine, handbill, or 
other publication any advertisement of— 

(i) any electronic, mechanical, or other device 
knowing or having reason to know that the design of 
such device renders it primarily useful for the purpose 
of the surreptitious interception of wire, oral, or 
electronic communications; or 

(ii) any other electronic, mechanical, or other 
device, where such advertisement promotes the use of 
such device for the purpose of the surreptitious 

7a 

interception of wire, oral, or electronic communi- 
cations, 

knowing or having reason to know that such ad- 
vertisement will be sent through the mail or transported 
in interstate or foreign commerce, 

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

(2) It shall not be unlawful under this section for— 

(a) a provider of wire or electronic communication 
service or an officer, agent, or employee of, or a person 
under contract with, such a provider, in the normal 
course of the business of providing that wire or 
electronic communication service, or 

(b) an officer, agent, or employee of, or a person 
under contract with, the United States, a State, or a 
political subdivision thereof, in the normal course of the 
activities of the United States, a State, or a political 
subdivision thereof, 

to send through the mail, send or carry in interstate or 
foreign commerce, or manufacture, assemble, possess, or sell 
any electronic, mechanical, or other device knowing or 
having reason to know that the design of such device renders 
it primarily useful for the purpose of the surreptitious 
interception of wire, oral, or electronic communications. 

(3) It shall not be unlawful under this section to advertise 
for sale a device described in subjection (1) of this section if 
the advertisement is mailed, sent, or carried in interstate or 
foreign commerce solely to a domestic provider of wire or 
electronic communication service or to an agency of the 
United States, a State, or a political subdivision thereof 
which is duly authorized to use such device. 

8a 

5. 18 U.S.C. 2515 provides: 

§ 2515. 

Prohibition of use as evidence of intercepted 

wire or oral communications 

Whenever any wire or oral communication has been 
intercepted, no part of the contents of such communication 
and no evidence derived therefrom may be received in 
evidence in any trial, hearing, or other proceeding in or 
before any court, grand jury, department, officer, agency, 
regulatory body, legislative committee, or other authority of 
the United States, a State, or a political subdivision thereof 
if the disclosure of that information would be in violation of 
this chapter. 

6. 18 U.S.C. 2520 provides: 

§ 2520. 

Recovery of civil damages authorized 

(a) IN GENERAL.—Except as provided in section 
2511(2)(a)(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. 

(b) RELIEF.—In an action under this section, ap- 
propriate relief includes— 

(1) such preliminary and other equitable or 
declaratory relief as may be appropriate; 

(2) damages under subsection (c) and punitive 
damages in appropriate cases; and 

(3) a reasonable attorney’s fee and other liti- 
gation costs reasonably incurred. 

9a 

(c) COMPUTATION OF DAMAGES.—(1) In an action under 
this section, if the conduct in violation of this chapter is the 
private viewing of a private satellite video communication 
that is not scrambled or encrypted or if the communication is 
a radio communication that is transmitted on frequencies 
allocated under subpart D of part 74 of the rules of the 
Federal Communications Commission that is not scrambled 
or encrypted and the conduct is not for a tortious or illegal 
purpose or for purposes of direct or indirect commercial 
advantage or private commercial gain, then the court shall 
assess damages as follows: 

(A) If the person who engaged in that conduct has 
not previously been enjoined under section 2511(5) and 
has not been found liable in a prior civil action under this 
section, the court shall assess the greater of the sum of 
actual damages suffered by the plaintiff, or statutory 
damages of not less than $50 and not more than $500. 

(B) If, on one prior occasion, the person who 
engaged in that conduct has been enjoined under section 
2511(5) or has been found liable in a civil action under 
this section, the court shall assess the greater of the sum 
of actual damages suffered by the plaintiff, or statutory 
damages of not less than $100 and not more than $1000. 

(2) In any other action under this section, the court 
may assess as damages whichever is the greater of— 

(A) the sum of the actual damages suffered by the 
plaintiff and any profits made by the violator as a result 
of the violation; or 

(B) statutory damages of whichever is the greater 
of $100 a day for each day of violation or $10,000. 

(d) DEFENSE.—A good faith reliance on— 

10a 

(1) a court warrant or order, a grand jury 
subpoena, a legislative authorization, or a statutory 
authorization; 

(2) a request of an investigative or law en- 
forcement officer under section 2518(7) of this title; or 

(3) a good faith determination that section 
2511(3) of this title permitted the conduct complained 
of; 

is a complete defense against any civil or criminal action 
brought under this chapter or any other law. 

(e) LIMITATION.—A civil action under this section may 
not be commenced later than two years after the date upon 
which the claimant first has a reasonable opportunity to 
discover the violation.