965 F.2d 637 | 8th Cir. | 1992
Lead Opinion
Appellant, Howard J. Smith, filed a motion to unseal electronic surveillance evidence. The district court denied Smith’s motion. We reverse and remand.
I. BACKGROUND
The action that forms the basis of this appeal involves several real estate development deals gone awry. In that action, Howard Smith sued Donn Lipton claiming fraud, tortious interference, and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). See Smith v. Lipton, Cause No. 892-03316 (E.D.Mo. July 10, 1990).
During the discovery phase of the above action, Smith sought to have the contents of several intercepted conversations concerning real estate development. in the downtown St. Louis area between Lipton and former St. Louis Alderman Sorkis Webbe, Jr. made available to him for use in his civil suit.
II. DISCUSSION
We interpret a statute by looking to the words of the statute and giving them their plain meaning. Section 2517 is structured to permit investigative or law enforcement officers to make effective use of intercepted wire, oral or electronic communications. Section 2517(1) permits officers to disclose the communications or derivative evidence to other officers. Section 2517(2) permits officers to use the communications or derivative evidence to the extent appropriate or proper in performing their official duties. Section 2517(3) permits any person to make the contents of an intercepted communication public through testimony under oath in “any proceeding held under the authority of the United States or of any State.” The words “any proceeding” are clearly sufficient to include private civil actions such as the one in this case. See, e.g., Dowd v. Calabrese, 101 F.R.D. 427, 435 (D.D.C.1984) (holding that to the extent wiretaps are public, they can be used in a subsequent civil proceeding). Section 2517(3), however, is not without its limitations. Before the contents of an intercepted communication can be introduced in a proceeding, the party seeking introduction must establish that he obtained the information by a means authorized under Title III. See 18 U.S.C. §§ 2515, 2517(3) (1988).
We assume without deciding that no question exists as to the government’s authority to intercept the communications at issue here. Consequently, the government may, without question, make public through testimony the contents of any intercepted communication related to the offenses specified in the original wiretap authorization or approval. See id. § 2517(3). Furthermore, under section 2517(5) a judge may permit the government to make public through testimony the contents of intercepted communications related to offenses other than those specified in the wiretap authorization or approval. Implicit in this grant of power to the judge is the judge’s authority to grant access to the intercepted communications. The gravamen of this case, then, is whether section 2517(5) permits a judge to grant access to intercepted communications to private litigants for use pursuant to section 2517(3) where the government has not previously made the communications public. Because Title III does not directly address this issue, we first look to the purpose and intent of Congress in enacting Title III for guidance in resolving this case.
Before the enactment of Title III, the use of evidence obtained by wiretap was banned, except if the wiretap was conducted pursuant to the warrant procedure mandated by the Fourth, Amendment. See
In 1970, Congress focused its attention on organized crime, enacting the Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 922, reprinted in 1970 U.S.C.C.A.N. 1095. Two of Smith’s counts in the lawsuit below are under Title IX of that act, RICO, which provides for both criminal and civil penalties. Prior to the enactment of RICO, section 2517(3) only allowed intercepted communications and derivative evidence to be made public through testimony in criminal proceedings.
Absent Title III, the protections given communications are governed by the Fourth Amendment: communications receive no greater protection. See Katz, 389 U.S. at 353, 88 S.Ct. at 512 (recording communications constitutes a search and seizure under the Fourth Amendment); see
Congress’ concern for privacy leads us to agree with the Second Circuit that section 2517 should not be used as a general discovery mechanism. See In re National Broadcasting Co. v. United States Dep’t of Justice, 735 F.2d 51, 54 (2d Cir.1984). In National Broadcasting, the Second Circuit refused to give NBC access to intercepted communications it needed to defend against a libel action. But we do not think that because Congress was concerned with protecting conversational privacy when it enacted Title III, it inexorably follows that lawfully intercepted communications may never be released to private litigants. Much of the discovery done in civil suits implicates confidentiality and privacy interests, and courts are often asked to carefully balance these interests with the compelling need for discovery. In general, parties may obtain discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Fed.R.Civ.P. 26(b)(1). Parties to litigation may often be required to submit to mental and physical examinations, Fed.R.Civ.P. 35, produce documents and allow entry onto land, Fed.R.Civ.P. 34, and turn over materials produced in preparation for trial, Fed.R.Civ.P. 26(b)(3). Thus the rules of discovery allow intrusions into the private affairs of parties to litigation as well as third parties. See, e.g., Pagano v. Hadley, 100 F.R.D. 758 (D.Del.1984) (allowing discovery of unprivileged documents in a priest’s personnel file); Hoffman v. Delta Dental Plan of Minnesota, 517 F.Supp. 574 (D.Minn.1981) (permitting discovery of financial information of nonparties); Weiner v. Bache Halsey Stuart, Inc., 76 F.R.D. 624 (S.D.Fla.1977) (defendants entitled to discovery of plaintiffs’ tax returns). Courts often guard the confidentiality and privacy interests implicated in discovery by limiting discovery or issuing protective orders. See Fed.R.Civ.P. 26(c) & 30(d).
Although we admit that the confidentiality and privacy interests of parties whose communications have been intercepted by the government are significant, we do not believe that this alone should prevent them from being discoverable. We do, however, recognize that Congress sought to protect these interests when it enacted Title III. But, as evidenced by the statute, this protection is not absolute. See 18 U.S.C. § 2518(1) (1988) (authorizing wiretaps); id. § 2518(8)(b) (allowing disclosure of wiretap applications and orders upon a showing of good cause); see also United States v. Dorfman, 690 F.2d 1230, 1234 (7th Cir.1982) (stating that the right to conversational privacy is no more absolute than the right of access). We hold, therefore, that when the specific findings outlined below are made, intercepted communications not previously made public may be made available to private litigants under section 2517.
III. CONCLUSION
For the reasons stated above we reverse the decision of the district court and remand for findings consistent with this opinion.
. The government recorded these conversations during a criminal investigation of Sorkis Webbe, Jr. in the 1980s. See 18 U.S.C. §§ 2510-2520 (1988).
. The pertinent portions of section 2517 are as follows:
(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
*639 (2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.
(3) Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.
(5) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized herein, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order or authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter.
18 U.S.C. § 2517 (1988) (emphasis added).
. Before the 1970 amendment, section 2517(3) read as follows:
Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of the United States or of any State or in any Federal or State grand jury proceeding.
18 U.S.C. § 2517 (Supp. IV 1965-68) (emphasis added). For current version, see supra note 1.
Dissenting Opinion
dissenting.
I would affirm the district court essentially on the grounds stated in its carefully reasoned opinion.
“The plain meaning of legislation should be conclusive, except in the 'rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” United States v. Ron Pair Enterprises, 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989) (citation omitted). Like the district court, I see no words in section 2517 that permit law enforcement officers to disclose to private litigants information obtained for law enforcement purposes unless that information has first been disclosed in a public trial. Even beyond the plain meaning of section 2517, we are faced with Congress’s clear intent to protect the privacy of oral and written communications to the greatest extent possible. See Gelbard v. United States, 408 U.S. 41, 48, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972) (in enacting Title III, “the protection of privacy was an overriding congressional concern”). We violate that intent if we make recorded conversations available to private litigants in civil actions when they have not otherwise been made public.
The majority purports to agree with National Broadcasting Co. v. United States Dept. of Justice, 735 F.2d 51 (2d Cir.1984). In fact, the majority misses the point of the Second Circuit’s opinion. Recognizing that important policy considerations led Congress to protect the privacy rights of wiretap subjects in Title III, that court refused to order the government to release the recordings that NBC sought. According to the court:
[T]urning Title III into a general civil discovery mechanism would simply ignore the privacy rights of those whose conversations are overheard. We agree with the government that this was not the intent of Congress. See United States v. Dorfman, 690 F.2d 1230, 1233 (7th Cir.1982) (“we find no evidence that [the draftsmen of section 2517(3)] wanted to create a public right of access”)_ Under Title III, with few exceptions not here relevant, no one other than the government can lawfully engage in wiretapping and it therefore is*643 not so unusual that only the government can enjoy its fruits.
Id. at 54.
Rather than follow the Second Circuit’s well-reasoned lead, the majority has fashioned a new five-part test that will determine, on a case-by-case basis, whether wiretap recordings should be released to private litigants. While some standards are better than no standards at all, the majority’s test is contrary to the plain meaning of section 2517(3) and Congress’s intent. Moreover, parts of the test are vague, providing little guidance to district courts that must apply it. For example, it is not clear whether government objection to disclosure should be determinative, or if it might be outweighed by other considerations in some circumstances. Nor does the majority indicate when a nonparty whose privacy interests would be “substantially compromised by disclosure” should be able to prevent release of intercepted communications.
I believe that wiretap subjects are entitled to greater protection under Title III than the majority today provides. Thus, I respectfully dissent.