Who Is 'Any Person'Anyway?

This has not always been the case. In Simpson v. Simpson, 490 F.2d 803, 807 (5th Cir. 1974), the Fifth Circuit specifically limited application of the law and held that the Federal Wiretapping Act did not “intrude into the marital relation within the marital home.“ Looking beyond the statute's language to the legislative history (an analytical step criticized by subsequent circuit courts), the court noted that Congress had not intended the Act to extend into areas “normally left to the states, those of the marital home and domestic conflicts.“ Id. at 805-10. This limitation on liability of the Federal Wiretapping Act has come to be known as “interspousal immunity.“

The Fifth Circuit also found support for interspousal immunity under subsection (5)(a)(1) of Section 2510, commonly referred to as the “extension phone exception,“ also known as the “business exception.“ This exception excludes liability for telephone devices that are: 1) furnished to the telephone user by a provider of wire or electronic communication service in the ordinary course of its business; and 2) used by the telephone user in the ordinary course. 18 U.S.C. ' 2510(5)(a)(I). To simplify, the Act's provisions do not extend to any person listening to another's conversation on an extension phone within his own home. As such, the Fifth Circuit found no difference between a husband tapping his home telephone line to record his wife's conversations and the husband surreptitiously picking up the kitchen phone receiver to listen to his wife talk into the receiver in her bedroom. Id. at 809; see also Anonymous v. Anonymous, 558 F.2d 677 (1977) (holding, under the extension phone exception, it was not illegal for a “father to listen in on conversations between his wife and his eight year-old daughter, from his own phone, in his own home“; the job of raising a child amounts to acting in the “ordinary course of business“ in the domestic context).

Twenty years after Simpson, cellular telephones and satellite technology began to inform the debate over domestic surveillance. In Scheib v. Grant, 22 F.3d 149, 154-55 (7th Cir. 1994), the Seventh Circuit recognized what other courts coined the “in-home exception“ (Read: The “extension phone exception“ under a new name to allow for a changing technological landscape). The court found that Congress did not intend the Federal Wiretapping Act to prohibit interception of a family member's telephone conversation by a recording device within the home. Id. Now, under the Act, “any person“ can intercept her spouse's communications in her house but not in her automobile.

Other Circuit Court Rulings

The Eighth, Sixth and Fourth Circuits declined to recognize the Fifth Circuit's interspousal immunity. The Tenth Circuit held that an extension phone exception existed when intercepting a minor child's communications within the home but did not exist when intercepting a spouse's communications within the home. Newcomb v. Ingle, 944 F.2d 1534 (10th Cir. 1991); Heggy v. Heggy, 944 F.2d 1537 (10th Cir. 1991). In Glazner v. Glazner, 347 F.3d 1212, 1215-16 (11th Cir. 2003) (overruling Simpson and holding the Federal Wiretapping Act applied to husband's tapping of the home telephone line and interception of wife's communications), the Eleventh Circuit not only overturned interspousal immunity, but also declined to recognize the in-home exception from Scheib. As the court succinctly put it: “[Wife] is 'any person' within the meaning of ' 2520(a). [Husband] is 'any person' within the meaning of ' 2511(1)(a).“

The Death of Interspousal Immunity

On the heels of Glazner, three courts have acted to extend the scope of the Federal Wiretapping Act further into the domestic realm.

In Sanai v. Sanai, 2005 U.S. Dist. LEXIS 44614 (W.D. Wash. 2005), an ex-wife and four children of the marriage sued the ex-husband/father for violations of the Federal Wiretapping Act. They alleged the ex-husband/father wiretapped the home phone line while living in the home before the divorce, and intercepted his family members' conversations. Citing Glazner, the Washington district court found “civil liability where one spouse installs a recording device on a telephone in the mutually occupied marital home without the other spouse's knowledge or consent.“ Clearly a denouncement of interspousal immunity, as found in Glazner, the district court did not address a possible in-home exception from Scheib. Moreover, the Sanai court did not differentiate between intercepting a spouse's communications versus intercepting a minor child's communications. Summary judgment for the ex-husband was denied for both the children's and the ex-wife's federal claims.

Interestingly, the Sanai decision conflicted with a prior decision of another district court within the Ninth Circuit. In Perfit v. Perfit, 693 F. Supp. 851, 855-56 (C.D. Cal. 1988), the court found “application of federal law to an interspousal domestic conflict would run counter to the tradition of leaving such matters to the realm of state courts,“ and held that the Act did not extend to a husband's wiretap of the family phone to record his wife's communications. The Ninth Circuit has not addressed the extent of the application of 18 U.S.C. ' 2511 to domestic wiretapping.

In Dommer v. Dommer, 829 N.E.2d 125 (Ind. Ct. App. 2005), a state appellate court within the Seventh Circuit declined to apply the Seventh Circuit's Scheib decision where a husband wiretapped the home phone and recorded his wife's communications. Instead, the state court narrowly construed Scheib to apply only to a parent's right to record her child's communications. According to the Dommer court, Scheib did not apply to any other family member's right to intercept and record another (non-child) family member's communications within the home. The court looked to legislative history and other circuit court rulings, especially Glazner, for additional support to extend the federal law squarely into the domestic realm and narrowly construe the in-home exception.

Finally, in Babb v. Eagleston, 616 F. Supp. 1195 (N.D. Okl. 2007), a district court in the Tenth Circuit chipped away at the widely accepted “parental immunity“ to the Federal Wiretapping Act, crafted from the Newcomb v. Ingle decision and its progeny. In Babb, an ex-husband sued his ex-wife for allegedly wiretapping her home phone and recording conversations between their minor children and her ex-husband in an effort “to bolster her Motion to Modify the Joint Custody Plan.“ Id. at 1198. After analyzing precedent, the district court interpreted Tenth Circuit law as follows: “'[P]arental immunity' is not absolute. Instead, such immunity is limited to situations in which: (1) a minor child is a party to the recorded conversation, and (2) it is the minor child, rather than a third party, who brought suit.“ Id. at 1203. Further, the Babb court noted that there may be a third requirement “that the conversations were recorded in an effort to 'supervise' the minor children.“ Id. Given that in Babb, the ex-husband, and not a minor child, sued under the Act, the court denied the ex-wife's motion for summary judgment based upon her parental immunity argument.

The court also denied the ex-wife's request for summary judgment based upon her separate argument that the extension phone exception applied. Noting that the exception applied only where “(1) 'the intercepting equipment must be furnished to the user by the phone company or connected to the phone line' and (2) 'it must be used in the ordinary course of business,'” the court held that the ex-wife was not necessarily intercepting the minor children's calls in the “ordinary course,“ but in an effort to gain an advantage in the parties' custody litigation. This reasoning runs counter to previous dicta in the Tenth Circuit and other circuits where courts have argued that supervision includes concern about the child's welfare, even if the interceptions and recordings could be relevant to a custody determination.

Analysis

Given Sanai, Dommer and Babb, there appears to be a trend among district and state courts to further extend the scope of liability under the Federal Wiretapping Act into the domestic realm. Each of these recent cases cited Glazner for a broad definition of “any person“ prohibited from intercepting oral, wire or electronic communications. Under Glazner, “any person“ is any spouse who intentionally intercepts her spouse's oral, wire or electronic communications. The spouse would be subject to suit under the federal wiretapping law, whether interceptions are made within the home or elsewhere. The Eleventh Circuit decision was also cited in Babb to stretch liability to parents who record their minor children's communications within the home.

Naturally, each of these recent cases narrowly construes the specified exceptions to the Federal Wiretapping Act. Except in the Fifth Circuit, a blanket interspousal immunity to liability for interspousal wiretapping does not exist. In the Seventh Circuit, the in-home exception is narrowly construed to expose a spouse to liability under federal law for interspousal wiretapping within the home. District courts, without clear precedent on the issue, as in Sanai, appear to generally follow Glazner, the Eleventh Circuit decision broadly defining “any person“ and holding that a spouse is liable for interspousal wiretapping in the marital home or elsewhere, despite the extension phone exception and in-home exception recognized by other courts. In the Tenth Circuit, the Babb court confronts and questions a broad reading of the Newcomb decision, which previous courts have interpreted as granting a parental immunity under, inter alia, the extension phone exception.

Shifting Legal Landscape

In the past, parents could be fairly certain that interceptions of a minor child's communications would not subject them to liability under the federal law. This legal landscape is shifting, if the Babb decision is any indication.

Despite attempts to analyze recent case law and place it within a national context, confusion will likely continue. In the Fifth Circuit, a husband can wiretap his phone line and record his wife's communications without violating the Act, but not in the Tenth Circuit. In the Seventh Circuit, a wife can arguably intercept her husband's communications without violating the Act, but only if she does so within the home. In the Second Circuit, a parent can record her child's conversations under the extension phone exception, but this may not be the case in the Eight or Tenth Circuits. At the heart of the conflict are the varying opinions about how far the Federal Wiretapping Act should extend into the domestic realm, or the “home.“ This issue is further complicated by the constantly changing technologies used for surveillance and interception.

The one commonality appears to be a trend to broaden the definition of “any person“ under the Act and narrowly construe both explicit statutory exceptions and circuit court interpretive exceptions. It is also interesting that nowadays a spouse or parent is more likely to be subject to liability under the federal act, even though the myriad ways of intercepting communications have become more sophisticated and more difficult to detect. As it stands, the definition of “any person“ under the Federal Wiretapping Act will continue to shift until the Supreme Court offers a uniform guidance and a clear vision of how far the Act should extend into the home. Given the conflict among the federal circuit courts, the Supreme Court should address the reach of the Federal Wiretapping Act within the family home.

William R. Wright, a member of this newsletter's Board of Editors, is a Diplomate in the American College of Family Trial Lawyers, a Fellow in the American Academy of Matrimonial Lawyers and a member of the International Academy of Matrimonial Lawyers. Trhesa Barksdale Patterson is a senior associate with Wright Law Firm, P.A. where she practices in the area of family law with Mr. Wright in Jackson, MS.

The federal government prohibits “any person“ from intercepting oral, wire or electronic communications. Federal Wiretapping Act, 18 U.S.C. ' 2511(1). Though “any person“ sounds universal enough, the definition of “any person“ is complicated by exceptions ' the explicit statutory exceptions and the implicit exceptions created by federal circuit courts. As yet, the Supreme Court has not clarified the Act's “any person“ definition. Thus, family lawyers remain uncertain as to how far the prohibitions of the Federal Wiretapping Act extend into the family home.

Recent cases bring more uncertainty to the issue. A reading of two recent district court decisions and a state court decision could lead a lawyer to conclude that the scope of liability under the federal law has no limitation at all within the domestic realm. In other words, “any person“ may be any spouse or any parent or any other family member who intentionally intercepts oral, wire or electronic communications without the consent of at least one party to the communication.

Interspousal Immunity

This has not always been the case. In Simpson v. Simpson , 490 F.2d 803, 807 (5th Cir. 1974), the Fifth Circuit specifically limited application of the law and held that the Federal Wiretapping Act did not “ intrude into the marital relation within the marital home. “ Looking beyond the statute's language to the legislative history (an analytical step criticized by subsequent circuit courts), the court noted that Congress had not intended the Act to extend into areas “ normally left to the states, those of the marital home and domestic conflicts. “ Id . at 805-10. This limitation on liability of the Federal Wiretapping Act has come to be known as “interspousal immunity.“

The Fifth Circuit also found support for interspousal immunity under subsection (5)(a)(1) of Section 2510, commonly referred to as the “extension phone exception,“ also known as the “business exception.“ This exception excludes liability for telephone devices that are: 1) furnished to the telephone user by a provider of wire or electronic communication service in the ordinary course of its business; and 2) used by the telephone user in the ordinary course. 18 U.S.C. ' 2510(5)(a)(I). To simplify, the Act's provisions do not extend to any person listening to another's conversation on an extension phone within his own home. As such, the Fifth Circuit found no difference between a husband tapping his home telephone line to record his wife's conversations and the husband surreptitiously picking up the kitchen phone receiver to listen to his wife talk into the receiver in her bedroom. Id . at 809; see also Anonymous v. Anonymous , 558 F.2d 677 (1977) (holding, under the extension phone exception, it was not illegal for a “ father to listen in on conversations between his wife and his eight year-old daughter, from his own phone, in his own home “ ; the job of raising a child amounts to acting in the “ ordinary course of business “ in the domestic context).

Twenty years after Simpson, cellular telephones and satellite technology began to inform the debate over domestic surveillance. In Scheib v. Grant , 22 F.3d 149, 154-55 (7th Cir. 1994), the Seventh Circuit recognized what other courts coined the “ in-home exception “ (Read: The “ extension phone exception “ under a new name to allow for a changing technological landscape). The court found that Congress did not intend the Federal Wiretapping Act to prohibit interception of a family member's telephone conversation by a recording device within the home. Id. Now, under the Act, “any person“ can intercept her spouse's communications in her house but not in her automobile.

Other Circuit Court Rulings

The Eighth, Sixth and Fourth Circuits declined to recognize the Fifth Circuit's interspousal immunity. The Tenth Circuit held that an extension phone exception existed when intercepting a minor child's communications within the home but did not exist when intercepting a spouse's communications within the home. Newcomb v. Ingle , 944 F.2d 1534 (10th Cir. 1991); Heggy v. Heggy , 944 F.2d 1537 (10th Cir. 1991). In Glazner v. Glazner , 347 F.3d 1212, 1215-16 (11th Cir. 2003) (overruling Simpson and holding the Federal Wiretapping Act applied to husband ' s tapping of the home telephone line and interception of wife ' s communications), the Eleventh Circuit not only overturned interspousal immunity, but also declined to recognize the in-home exception from Scheib . As the court succinctly put it: “[Wife] is 'any person' within the meaning of ' 2520(a). [Husband] is 'any person' within the meaning of ' 2511(1)(a).“

The Death of Interspousal Immunity

On the heels of Glazner, three courts have acted to extend the scope of the Federal Wiretapping Act further into the domestic realm.

In Sanai v. Sanai, 2005 U.S. Dist. LEXIS 44614 (W.D. Wash. 2005), an ex-wife and four children of the marriage sued the ex-husband/father for violations of the Federal Wiretapping Act. They alleged the ex-husband/father wiretapped the home phone line while living in the home before the divorce, and intercepted his family members' conversations. Citing Glazner, the Washington district court found “civil liability where one spouse installs a recording device on a telephone in the mutually occupied marital home without the other spouse's knowledge or consent.“ Clearly a denouncement of interspousal immunity, as found in Glazner, the district court did not address a possible in-home exception from Scheib. Moreover, the Sanai court did not differentiate between intercepting a spouse's communications versus intercepting a minor child's communications. Summary judgment for the ex-husband was denied for both the children's and the ex-wife's federal claims.

Interestingly, the Sanai decision conflicted with a prior decision of another district court within the Ninth Circuit. In Perfit v. Perfit , 693 F. Supp. 851, 855-56 (C.D. Cal. 1988), the court found “application of federal law to an interspousal domestic conflict would run counter to the tradition of leaving such matters to the realm of state courts,“ and held that the Act did not extend to a husband's wiretap of the family phone to record his wife's communications. The Ninth Circuit has not addressed the extent of the application of 18 U.S.C. ' 2511 to domestic wiretapping.

In Dommer v. Dommer , 829 N.E.2d 125 (Ind. Ct. App. 2005), a state appellate court within the Seventh Circuit declined to apply the Seventh Circuit's Scheib decision where a husband wiretapped the home phone and recorded his wife's communications. Instead, the state court narrowly construed Scheib to apply only to a parent's right to record her child's communications. According to the Dommer court, Scheib did not apply to any other family member's right to intercept and record another (non-child) family member's communications within the home. The court looked to legislative history and other circuit court rulings, especially Glazner, for additional support to extend the federal law squarely into the domestic realm and narrowly construe the in-home exception.

Finally, in Babb v. Eagleston , 616 F. Supp. 1195 (N.D. Okl. 2007), a district court in the Tenth Circuit chipped away at the widely accepted “ parental immunity “ to the Federal Wiretapping Act, crafted from the Newcomb v. Ingle decision and its progeny. In Babb, an ex-husband sued his ex-wife for allegedly wiretapping her home phone and recording conversations between their minor children and her ex-husband in an effort “to bolster her Motion to Modify the Joint Custody Plan.“ Id. at 1198. After analyzing precedent, the district court interpreted Tenth Circuit law as follows: “'[P]arental immunity' is not absolute. Instead, such immunity is limited to situations in which: (1) a minor child is a party to the recorded conversation, and (2) it is the minor child, rather than a third party, who brought suit.“ Id. at 1203. Further, the Babb court noted that there may be a third requirement “that the conversations were recorded in an effort to 'supervise' the minor children.“ Id. Given that in Babb, the ex-husband, and not a minor child, sued under the Act, the court denied the ex-wife's motion for summary judgment based upon her parental immunity argument.

The court also denied the ex-wife's request for summary judgment based upon her separate argument that the extension phone exception applied. Noting that the exception applied only where “(1) 'the intercepting equipment must be furnished to the user by the phone company or connected to the phone line' and (2) 'it must be used in the ordinary course of business,'” the court held that the ex-wife was not necessarily intercepting the minor children's calls in the “ordinary course,“ but in an effort to gain an advantage in the parties' custody litigation. This reasoning runs counter to previous dicta in the Tenth Circuit and other circuits where courts have argued that supervision includes concern about the child's welfare, even if the interceptions and recordings could be relevant to a custody determination.

Analysis

Given Sanai, Dommer and Babb, there appears to be a trend among district and state courts to further extend the scope of liability under the Federal Wiretapping Act into the domestic realm. Each of these recent cases cited Glazner for a broad definition of “any person“ prohibited from intercepting oral, wire or electronic communications. Under Glazner, “any person“ is any spouse who intentionally intercepts her spouse's oral, wire or electronic communications. The spouse would be subject to suit under the federal wiretapping law, whether interceptions are made within the home or elsewhere. The Eleventh Circuit decision was also cited in Babb to stretch liability to parents who record their minor children's communications within the home.

Naturally, each of these recent cases narrowly construes the specified exceptions to the Federal Wiretapping Act. Except in the Fifth Circuit, a blanket interspousal immunity to liability for interspousal wiretapping does not exist. In the Seventh Circuit, the in-home exception is narrowly construed to expose a spouse to liability under federal law for interspousal wiretapping within the home. District courts, without clear precedent on the issue, as in Sanai, appear to generally follow Glazner, the Eleventh Circuit decision broadly defining “any person“ and holding that a spouse is liable for interspousal wiretapping in the marital home or elsewhere, despite the extension phone exception and in-home exception recognized by other courts. In the Tenth Circuit, the Babb court confronts and questions a broad reading of the Newcomb decision, which previous courts have interpreted as granting a parental immunity under, inter alia, the extension phone exception.

Shifting Legal Landscape

In the past, parents could be fairly certain that interceptions of a minor child's communications would not subject them to liability under the federal law. This legal landscape is shifting, if the Babb decision is any indication.

Despite attempts to analyze recent case law and place it within a national context, confusion will likely continue. In the Fifth Circuit, a husband can wiretap his phone line and record his wife's communications without violating the Act, but not in the Tenth Circuit. In the Seventh Circuit, a wife can arguably intercept her husband's communications without violating the Act, but only if she does so within the home. In the Second Circuit, a parent can record her child's conversations under the extension phone exception, but this may not be the case in the Eight or Tenth Circuits. At the heart of the conflict are the varying opinions about how far the Federal Wiretapping Act should extend into the domestic realm, or the “home.“ This issue is further complicated by the constantly changing technologies used for surveillance and interception.

The one commonality appears to be a trend to broaden the definition of “any person“ under the Act and narrowly construe both explicit statutory exceptions and circuit court interpretive exceptions. It is also interesting that nowadays a spouse or parent is more likely to be subject to liability under the federal act, even though the myriad ways of intercepting communications have become more sophisticated and more difficult to detect. As it stands, the definition of “any person“ under the Federal Wiretapping Act will continue to shift until the Supreme Court offers a uniform guidance and a clear vision of how far the Act should extend into the home. Given the conflict among the federal circuit courts, the Supreme Court should address the reach of the Federal Wiretapping Act within the family home.

William R. Wright, a member of this newsletter's Board of Editors, is a Diplomate in the American College of Family Trial Lawyers, a Fellow in the American Academy of Matrimonial Lawyers and a member of the International Academy of Matrimonial Lawyers. Trhesa Barksdale Patterson is a senior associate with Wright Law Firm, P.A. where she practices in the area of family law with Mr. Wright in Jackson, MS.