The Volokh Conspiracy - Intercepted Cell Phone Calls:

On page 93 of the new Gerth-Van Natta Hillary Clinton book, a sentence describes how, during the '92 campaign, Hillary herself

"listened to a secretly recorded audiotape of a phone conversation of Clinton critics plotting their next attack. The tape contained disucssions of another woman who might surface with allegations about an affair with Bill. Bill's supporters monitored frequencies used by cell phones, and the tape was made during one of those monitoring sessions."

...

Isn't [this] not so legal? ... See also this exegesis of the elements of a violation of 18 U.S.C. 2511(1)(a)....

To answer Mickey's question, 18 U.S.C. § 2511(1) does provide (and as best I can tell did provide in 1992) that

Except as otherwise specifically provided in this chapter any person who--

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

[is guilty of a felony, and subject to civil suit].

Thus, if Hillary conspired with those who intercepted the phone conversations, solicited such interception, or aided that interception, that would be a crime.

What if the tapes just anonymously landed on her desk, so that there is no conspiracy, solicitation, or aiding, and she just listened to them and used them in her campaign? That too would be prohibited, by section (d), which equally covers any person who

(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.

Her only defense (assuming the tapes were pretty clearly a result of an intercepted communication) would be, I think, that the First Amendment allows her to use information that she indirectly got from someone else's intercept in crafting the campaign's own First Amendment activity. See the narrow and mysterious Bartnicki v. Vopper (2001), which makes most First Amendment calculations in this area hard to make, and ignore the temptation to make much out of Boehner v. McDermott (D.C. Cir. 2007) (en banc) (4-1-4), in which the swing vote turned on a special factor not present here (the fact that the defendant was a Representative whose conduct was also barred by a House Rule).

UPDATE: Orin, in the comments, points out that as of 1992 the law barred interception only of cell phone calls, not cordless calls. I had assumed the book passage was correct in saying they were cell phone calls, but if they were cordless calls, the materials that Orin cites (and Orin knows about such matters) would mean the behavior was legal. It's also possible that if Hillary used the material reasonably assuming that it was cordless calls rather than cell phone calls, she would be off the hook even if the calls proved to be cell phone calls after all.

(link)

OrinKerr:

Eugene,

Do we know that the calls were cell phone calls, and not just cordless telephone calls? I believe that as of 1992, there was an exception in the Wiretap Act allowing the interception of calls broadcast over cordless phones. As the Fourth Circuit explained in In Re Askin, 47 F.3d 100, 103 (4th Cir. 1995):

[The Wiretap Act] defined wire communication as “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 ... but such term does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.” 18 U.S.C. § 2510(1) (emphasis added). The statute similarly provided that 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 ... but does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.” 18 U.S.C. § 2510(12)(A) (emphasis added). Congress has since extended Title III's coverage to include the radio portion of cordless communications by simply striking the above exceptions from §§ 2510(1) and 2510(12)(A). See Communications Assistance for Law Enforcement Act, Pub.L. No. 103-414, § 202(a), 108 Stat. 4279 (1994). At the time this case arose, however, §§ 2510(1) and 2510(12)(A) expressly excluded the radio portion of cordless communications from the definition of wire and electronic communication, and thus from the statutory ban on the warrantless interception thereof.

6.1.2007 2:53am

Also, Eugene, are you sure that listening to the calls constiututes a "use" of them for purposes of 2511(1)(d)?

6.1.2007 2:57am

Dave N (mail):

I have never personally been a Clinton basher (of either Bill or Hillary, though I never voted for him and have no intention of ever voting for her) but this does seem like the kind of Clinton hubris for which those suffering from CDS often complain.

And before I get flamed, let me posit this hypothetical: If the revelation was that say, Laura Bush, or, even better, Karl Rove, had done what Hillary is alleged to have done, would you feel the same way? This hypothetical is presented to both Democrats and Republicans.

Oh, as for me, it true, it would be just as despicable in either situation. Frankly anyone who tries to say it is either worse or more acceptable because it is Clinton versus Bush is a partisan troll.

6.1.2007 2:59am

Eugene Volokh (www):

Orin: It seems to me that listening to them and using the information in her campaign is use. Good question about the cordless matter -- I assumed they were cell phone calls, but maybe I was wrong.

6.1.2007 3:02am

Eugene,

Does the book suggest that they used the information in the campaign?

6.1.2007 3:06am

Bill Poser (mail) (www):

I suppose that there is the William F. Buckley defense: perhaps the monitoring took place on a yacht outside of US waters?

6.1.2007 3:12am

Bill's supporters monitored frequencies used by cell phones

Doesn't this rule out the explanation that they were monitoring cordless phones, barring the unlikely situation in which they monitored cell phone frequencies but somehow picked up on cordless phones instead?

6.1.2007 3:55am

Henri Le Compte (mail):

I think some of you are trying a little too hard to think of actual legal arguments for Sen. Clinton to evoke. In reality it is much easier than that. Have you ever heard of the "vast right wing conspiracy"? Trust me, that is all the only explanation she needs now, or will ever need.

I will be stunned is Sen. Clinton's campaign even addresses this issue. If they do, it will only be to go directly after Gerth Van Natta. "Right wing conspirator" will be the nice stuff.

6.1.2007 5:13am

George Weiss (mail):

henri..good point...there are plently of political ways out of this

the only problem for hilary is if there is no legal way out..

do either Oren or Eugene know if there is a statute of limitations on prosecution of such matters..and what it would be?...i assume it would be the regualr 5 year limit (section title 18 chapter 213 section 3282...so shed have nothing to worry about from a fitzegerald like character

6.1.2007 5:56am

PersonFromPorlock:

the only problem for hilary is if there is no legal way out.

No problem, she's covered under the Important People Clause.

6.1.2007 7:04am

person from porlock...(thats a rather self depricating name)

6.1.2007 7:10am

Brett Bellmore:

the only problem for hilary is if there is no legal way out.

I would assume she has the same 'legal' defense available to her that Sandy Berger used. You really think they threw away all those FBI files?

6.1.2007 7:33am

also we are assuming as EV says..that if the tapes landed anonomously on her desk that they were the pretty clearly the result of an inteception....

she could have thoughto ne of the parites to the recodered conversaation was a double agent..and thus since he was a party ot he conversation..had a right to recorord it.

im a libratarian...i usually vote republican...but you gotta sympathise with someone discovering such tapes about her husband on her desk...how does someone NOT use such information..how can a human go about their camplaign the same way knowing what she knew...the people in the conversation were nasty and engaged in negative campaigning at its worst.

6.1.2007 7:49am

Richard Aubrey (mail):

Of course it's legal. The Clintons did it.
What more do you need?
Jeez.

6.1.2007 7:54am

Justice Fuller:

Henri, Richard,

Thanks for the reminder of CDS (Clinton Derangement Syndrome), the historical predecessor to BDS.

6.1.2007 8:43am

Bruce Hayden (mail) (www):

Likely by now, the statute of limitations has run on whatever was done. So, we don't expect to see Sen. Clinton being led off the Senate floor in handcuffs (ok, there are other reasons that we don't see members of Congress led out in handcuffs).

Orin: How about state laws? Even if this wouldn't have violated federal law if wireless phones were tapped wirelessly, could it have violated a state law? I would think the most relevant would be D.C., VA, MD, AK, and, depending on timing, NY, though this appears to be well before when she first ran for Senator.

6.1.2007 9:16am

WV.Hillbilly (mail):

The Electronic Communications Privacy Act of 1986 made it illegal to listen in on cellular AND cordless phone calls.
It is also illegal to disclose any information heard to other persons.

6.1.2007 9:17am

alkali (mail) (www):

Bill's supporters monitored frequencies used by cell phones, and the tape was made during one of those monitoring sessions.

Legality aside, this claim strikes me as somewhat unusual. Back when cell phone traffic was analog and not encrypted, there were people who used Radio Shack-type frequency scanners to generally eavesdrop on cell phone traffic in their neighborhoods. No doubt occasionally someone would overhear something of particular interest to them. But I'm not sure how anyone could practically monitor cell phone traffic generally for information on a particular subject, which is what Gerth seems to be claiming was done.

6.1.2007 9:34am

I note that from what we have here, Hillary's supporters do not appear to be paid investigators. That seems more akin to the ongoing litigation, etc. between Reps. Boehner and McDermott over the later listening to, and then releasing portions of, a tape of the former and others discussing former Speaker Gingrich's ethical problems (esp. while McDermott was the senior Democrat on the House Ethics Committee). Boehner right now seems to have the better position right now, with the Court of Appeals (again) affirming his judgment about a month ago.

Sen. Clinton has a reputation for hiring PIs, esp., as here, when she was trying to control "Bimbo Eruptions". I would suggest that her criminal (and civil) exposure would be quite different if she had listened to illegally taped conversations taped by PIs effectively hired and controlled by her.

Of course, this entire discussion is hypthetical, since we really don't know if she did or did not listen to tapes, who taped the conversations, etc.

6.1.2007 9:35am

Legality aside, this claim strikes me as somewhat unusual. Back when cell phone traffic was analog and not encrypted, there were people who used Radio Shack-type frequency scanners to generally eavesdrop on cell phone traffic in their neighborhoods. No doubt occasionally someone would overhear something of particular interest to them. But I'm not sure how anyone could practically monitor cell phone traffic generally for information on a particular subject, which is what Gerth seems to be claiming was done.

Somewhere else I got the impression that this involved the campaign's attempt to control Bimbo Eruptions, and that a specific woman was being targetted. Thus, what is quite possible here is that it was either her phone or the phone of someone connected to her, that was being targetted. Of course, that would have been much easier with a wireless phone than with a cell phone.

6.1.2007 9:39am

I partially appologize for my previous post. The quoted section was:

"listened to a secretly recorded audiotape of a phone conversation of Clinton critics plotting their next attack. The tape contained disucssions of another woman who might surface with allegations about an affair with Bill. Bill's supporters monitored frequencies used by cell phones, and the tape was made during one of those monitoring sessions."

Which would seem to indicate that certain people were being monitored, but not one of Bill Clinton's bimbos.

6.1.2007 9:42am

Bruce Hayden writes:

... Which would seem to indicate that certain people were being monitored ...

Although I don't have any technological knowledge about it, it seems plausible to me that if you supported the Clintons, and you knew that happened to live next door to a politico adverse to the Clintons, you could try to make a habit of listening in on his cordless or cell calls for stuff helpful to the Clintons. (That's a considerably narrower claim than the one Gerth seems to be making, however.)

6.1.2007 10:12am

midlantan (mail):

Obviously, one important caveat to all of our speculation on legality is that it assumes the passage in the book is accurate or mostly accurate (e.g. "cell" vs. "cordless" phones). I haven't read the book and don't really have a bsis to judge how precise these authors generally are. As Orin points out, grabbing the radio portion of a cordless call didn't count as an illegal interception back in 1992 (sorry WV Hillbilly, you're wrong about that). But grabbing a cell call would. Assuming it was an actual cell conversation being intercepted, in 1992 this would have been fairly easy compared to today, since most (all?) cell traffic was analog, and this could be monitored by not only a simple Radio Shack scanner, but even an old television set (since the AMPS audio band overlapped with the audio bands for UHF).

The quoted paragraph sounds pretty damning, but the details here are important. If the call were "secretly" recorded by someone on the call, as opposed to a third party, then the legal calculus would be quite different. (Federal law wouldn't prohibit the recording, although state law might. See Tripp, Linda.) The quoted paragraph says the recording was made during a "monitoring session," so it sounds like it wasn't recorded by a party to the call, but that would be a key fact (and it also might bear on whether the recipient of the tape could reasonably believe it to have been recorded legally, as opposed to intercepted illegally. Not having heard the tape, it's kind of hard to tell.

6.1.2007 10:20am

Mr L (mail):

Although I don't have any technological knowledge about it, it seems plausible to me that if you supported the Clintons, and you knew that happened to live next door to a politico adverse to the Clintons, you could try to make a habit of listening in on his cordless or cell calls for stuff helpful to the Clintons.

I'm sure that is very nearly the exact phrasing: "Although I don't have any technological knowledge about it, it seems plausible to me that if you supported us, and you knew a politico adverse to us, you could try to make a habit of listening in on his cordless or cell calls for stuff helpful to us. But we're not telling you to do that, or to give us tapes of any stuff you find. That would be illegal, y'see." Remarkable 'lucky coincidences' of this sort don't often happen in Washington.

And for the commenter who brought up hypocrisy earlier, if Bush was caught tapping his opponents' cell phones like this he'd be out within a month. He suffered immense damage from the comparatively trivial NSA wiretapping scandal; even more flagrant abuses for rank partisan advantage would destroy him utterly.

6.1.2007 10:47am

breezy:

Clearly the law defines the difference between intercepting a call on a wireless phone versus a cell phone, but as a US citizen, why does my right to privacy change depending on the technology I choose to use for communication?
Sorry for my weak knowledge of the law, just trying to be a layman utilizing common sense.

6.1.2007 11:19am

Justice.
It's not CDS to have observed how things went during the Clinton years.
The sequence was always the same:

They didn't do it and it would be illegal if they did.
Then the evidence mounted and....
They admitted they did. It's not illegal.

What did Chuck Colson go to jail for? And nobody could figure out who even hired Craig Livingstone?

6.1.2007 11:33am

Justin (mail):

Is there any evidence, other than the allegation itself, and its relationship to Klein's bionovel), that this is true? I'd honestly love to see Hillary go down in flames (before the primary), but I'd also be very curious how this information was obtained by the journalists.

6.1.2007 11:43am

Steve:

Amusing that no one has sought to answer Prof. Kerr's rather logical question: "Does the book suggest that they used the information in the campaign?" From what we've seen in the post and comments, Hillary allegedly listened to the recording, but there's no claim that she "used" it in any way. Yet numerous Clinton-hating commentors have rushed to proclaim her guilty, comment that she'll probably get away with this one just like all those people she had killed, and so forth. One of the biggest lies ever told is that partisan hatred for Bush is somehow unprecedented in our discourse.

In any event, I think the term "use" in subpart (d) of the statute seems maddeningly vague. If you were to replay or distribute an improperly recorded conversation, okay, maybe that's a pretty clear "use." But what if you simply "use" the information you heard in the conversation in some fashion? Is the expectation of the statute's drafters that you'll be able to erase that information from your brain?

Say, for example, what Hillary heard on the illegally recorded phonecall was that someone was plotting to murder her on the way home from work tomorrow. She takes a different route home from work, and hooray, lives to see another day. By altering her routine, has she "used" the illegal recording and thereby violated subpart (d)?

6.1.2007 12:08pm

midlantan:
Here's the law.
You can read it for yourself:
http://floridalawfirm.com/privacy.html

6.1.2007 12:24pm

Brian G (mail) (www):

I like the first post form Mr. Kerr. All I could think of was Al Gore's "no controlling legal authority."

Anyway, what's the big deal? It isn't like the Clintons were violating the Constitutional rights of terrorists or anything like that. Now, if they were listening to Johnny Jihad in Yemen talking to Jimmy Jihadi in D.C., that would be a scandal.

6.1.2007 12:30pm

Anderson (mail) (www):

People, people, people:

Illegal listening-in on private telephone conversations is a crucial Executive Branch skill these days, and this story proves that Hillary is easily the best-qualified candidate.

6.1.2007 12:45pm

Amusing that no one has sought to answer Prof. Kerr's rather logical question: "Does the book suggest that they used the information in the campaign?" From what we've seen in the post and comments, Hillary allegedly listened to the recording, but there's no claim that she "used" it in any way. Yet numerous Clinton-hating commentors have rushed to proclaim her guilty, comment that she'll probably get away with this one just like all those people she had killed, and so forth. One of the biggest lies ever told is that partisan hatred for Bush is somehow unprecedented in our discourse.

I think that you overreact here. As I noted above, this is a theoretical discussion. The site is run by law profs, and that is the mode of a lot of the discussions here - you start with a fact pattern, analyze, then maybe tweak some of the parameters to see what changes. Back to the glorious :) time many of us had in law school.

The other thing to consider is that this paragraph about Sen. Clinton has been picked up by a lot of bloggers in the last couple of days. As seems somewhat common these days, Volokh is doing its usual part by providing a reasonably unbiased legal analysis of such.

And yes, "she'll probably get away with this one". The statutes of limitations have almost assuredly run and she would be radioactive to prosecute anyway for anything short of trying to assasinate President Bush. Cheney would probably be OK though.

6.1.2007 12:51pm

George Weiss:

person from porlock...(thats a rather self depricating name)

Well, I'm a very modest fellow. Handsome and witty, though.

6.1.2007 1:19pm

Orin: All I know of the incident is what Mickey reported. I expect that Hillary listened to the tapes with an eye towards possibly using the information -- why else would she have taken time to listen to the tapes during the busy campaign, and run the risk of being linked to what she or her staff must have realized might be a politically damaging tactic (even if she had no idea it was illegal)? But it is indeed possible that she listened with that intention but didn't actually use them.

It's conceivable, I suppose, that she and the staffers who helped arrange the listening would then be guilty of conspiracy to violate § 2511(1)(d), assuming there was an agreement between them to possibly use the tapes. (I take it, off the top of my head, that a conditional intent of acting in a way that proves illegal is sufficient for a conspiracy prosecution.) But I agree that if she didn't actually use them, she would not have violated § 2511(1)(d) itself.

6.1.2007 1:23pm

dejapooh (mail):

Any way you slice it, pretty dicey ethics there... And I like her.

6.1.2007 1:30pm

amliebsch:

WV.Hillbilly:

As I recall, cordless telephones operate on frequencies specifically designated by the FCC as being for unlicensed general public use - the same frequencies used by things like baby monitors, intercoms, (unlicensed) walkie-talkies, and wireless networking.

Therefore, I think that intercepting cordless phone conversations would be allowed under sections 2(g)(i) and 2(g)(ii)(III) of Sec. 2511.

To wit, by broadcasting on those frequencies, you are using equipment designed to generate transmissions readily acessible to the general public as described in 2(g)(i). And even if it wasn't, you are using the general-use frequencies exempted in 2(g)(ii)(III)

6.1.2007 1:31pm

eck:

Orin, there is some precedent -- admittedly a minority view -- for the proposition that merely listening to a tape equals "use":

This Court thinks that it strains logic to conclude that reading a document or listening to a tape does not amount to “use” of those items.

Thompson v. Dulaney, 838 F. Supp. 1535, 1547 (D. Utah 1993); contra Dorris v. Absher, 179 F.3d 420, 426 (6th Cir. 1999) ("We therefore hold, as a matter of law, that listening alone is insufficient to impose liability for "using" illegally intercepted communications.") and cases cited therein.

6.1.2007 1:52pm

Christopher Cooke (mail):

Sen. Clinton has a reputation for hiring PIs, esp., as here, when she was trying to control "Bimbo Eruptions". I would suggest that her criminal (and civil) exposure would be quite different if she had listened to illegally taped conversations taped by PIs effectively hired and controlled by her

The federal grand jury in Los Angeles has in fact indicted a very prominent attorney in LA (Terry Christiansen) and private investigator for illegally monitoring telephone calls of litigation opponents of the attorney's clients.

So, yes, if Clinton's campaign or Clinton herself hired a PI, who then monitored cell phone calls of political opponents, it would be "problematic" for them, but they always have the statute of limitations to fall back on (I guess, under the Ledbetter analysis, the conduct would no longer be "illegal" if it wasn't caught in time).

6.1.2007 1:59pm

r78:

Why do you believe the calls were "intercepted" and not taped by a participant in the phone call?

6.1.2007 2:22pm

strike that question.

6.1.2007 2:23pm

I miss 800mhz (mail):

In the early 90s, there were more sophisticated cell phone monitors than simple analog scanners. They probably had the MINs of target phones and a scanner capable of monitoring the digital traffic on the control channel to get frequency and handoff information for the target phones, thus being able to record relevent conversations without the need to constantly monitor all cell frequencies.

6.1.2007 2:49pm

PAUL VIRKLER (mail):

Two of Chuck Robb's supporters got into trouble tapping a call from Gov. Wilder car phone back in 1992

6.1.2007 2:52pm

amliebsch:
The 1986 ECPA was rammed through by cellular companies to allegedly protect their customers from being listened to by people with scanners even though it was an unencrypted signal. It specifically includes cordless phones.

UNITED STATES CODE
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS

Sec. 2511(4)(b)(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.

6.1.2007 3:13pm

WV Hillbilly, the reference to cordless telephones in 2511(4) was added not in 1986 as part of ECPA, but in 1994 as part of CALEA. See PL 103-414 (1994), sec. 202.

Note, BTW, that the language you quote has since been deleted (in 2002, if I recall correctly), elevating such intercepts to felony status as opposed to mere infractions. So your general point -- amliebsch is wrong to claim that cordless calls are unprotected -- is a correct one.

6.1.2007 3:33pm

David Maquera (mail) (www):

I don't know about Gerth-Van Natta's book but I am curious if anyone can substantiate the rumor that Carl Bernsteins' new book on Hillary Clinton states that she failed the DC Bar Exam???

6.1.2007 5:40pm

David Maquera--

I realize this thread is getting long in the tooth, but in answer to your question, Carl Bernstein said so today on "The Today Show."

6.1.2007 7:22pm

WV Hillbilly - Uh, yeah. What eck said.

Seriously, though, trying to decipher these laws is maddeningly difficult, especially when trying to figure out which version of the law applied at a given time in the past (add to that the fact that the law is often referred to as the Electronic Communications Act of 1986, even when it's been amended multiple times since then). I don't know offhand which version of ECPA is posted at that link you posted in response to my comment, but it looks to be the last-CALEA, pre-2001 version.

6.1.2007 9:23pm

David,

If she failed the bar exam, I would not hold that against her. I thought I failed when I took it. If you have taken it, you know the pressure of it and anyone (see e.g. Stanford Law Dean) can fail it.

6.2.2007 2:36am

NickM (mail) (www):

Following up on Christopher Cooke's post, the attorney was Terry Christensen, and the investigator was Anthony Pellicano. Newspaper articles about the stuff Pellicano was doing are extremely scary.

Nick

6.2.2007 6:09am