Since 1968, federal law has prohibited the use of bugging devices — secret microphones — to record private conversations. Here’s the relevant text:
[A]ny person who . . . intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any . . . oral . . . communication [is guilty of a crime and commits a civil violation] [18 U.S.C. 2511(1)(a)]
Here are the definitions of two key terms, “oral communication” and “intercept”:
“oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation [18 U.S.C. 2510(2)]
“intercept” means the aural or other acquisition of the contents of any . . . oral communication through the use of any electronic, mechanical, or other device [18 U.S.C. 2510(4)]
The basic idea is to criminalize listening in on someone’s private conversation using a recording device. The law applies both to the government and to private parties, and it provides for both criminal and civil remedies. On the whole, it’s a sensible criminal and civil law.
But is it constitutional? Does Congress have the power to broadly prohibit the use of bugging devices? I don’t think it does. In this post I’ll explain why.
It’s helpful to start in a somewhat unusual place, with the legislative history. It’s helpful because it shows that the drafters of this provision knew perfectly well that they were on constitutional thin ice with this law. Here’s the remarkable discussion from the 1968 Senate Report:
The broad prohibition of [18 U.S.C. 2511(1)(a)] is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign communications network, and the extent of the constitutional power of Congress to prohibit such interception is less clear than in the case of interception of wire communications. The Supreme Court has indicated that Congress has broad power to protect certain rights under the Equal Protection Clause of the 14th amendment against private interference. (United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) (concurring and dissenting opinions).) The right here at stake— the right of privacy— is a right arising under certain provisions of the Bill of Rights and the due process clause of the 14th amendment. Although the broad prohibitions of subparagraph (a) could, for example, be constitutionally applied to the unlawful interception of oral communications by persons acting under color of State or Federal law, see Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), the application of the paragraph to other circumstances could in some cases lead to a constitutional challenge . . . [S.Rep. No. 1097, 90th Cong., 2d Sess. 92, reprinted in 1968 U.S.Code Cong. & Ad.News 2112, 2180]
The drafters were sufficiently concerned that Congress lacked the power to generally prohibit bugging devices that they created a second provision, 18 U.S.C. 2511(1)(b), which was a narrower offense that the government could use if the broader offense failed a constitutional challenge. The Senate Report explained that, unlike the broad prohibition in 18 U.S.C. 2511(1)(a), the narrower offense “relies on accepted juridictional bases under the commerce clause and other provisions of the Constitution to prohibit the interception of oral communications.” It was the backup if the general prohibition was struck down. Here’s the text of that narrower prohibition, 18 U.S.C. 2511(1)(b):
[A]ny person who . . . intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
[is guilty of a crime and commits a civil violation]
You can see the difference between the two bans: One is just a flat ban in using bugging devices, while the other requires a jurisdictional hook. The latter seems fine under existing Commerce Clause jurisprudence. But how about the former? Does Congress have the power to enact the former ban that lacks the jurisdictional hook?
The sparse precedents on this question have answered “yes,” but only by jumping through some rather remarkable hoops to get there. In United States v. Perkins, 383 F.Supp. 922 (N.D.Ohio 1974), a district court ruled that the statute was constitutional because it was needed to effectuate a broad penumbral right to privacy against both the government and private citizens. Here’s the court’s argument:
There is a right of privacy guaranteed to the citizens of this nation. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The authorities of the Constitution were perhaps not as concerned with the protection of this right as they should have been. But there were so few in this vast land that express concern for protection of privacy must have hardly seemed justified. Through the Fourth and Fifth Amendments, however, all the protection needed was given; express delineation of a right to privacy was not, and is not, necessary.
Today we live in populous clusters. People exist stacked atop each other. With the uncontrolled development of technological means whereby anyone can invade the privacy of another under virtually any condition, the essential need for protection of this penumbral right becomes apparent. We must be cautious lest through the spread of these devices ‘we plant the seeds of despotism at our own door.’ Concededly most of the scientific endeavors of the recent past constitute advances and have aided measurably in the improvement of civilization. But some of these may become the artifacts of tyranny if their utilization is not stringently controlled.
The Court concedes that Griswold and the more recent pronouncements of the Supreme Court on the right to privacy (Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972)) deal with invasion of the right of privacy by the Government. But when a citizen discovers that this office has been ‘bugged’, the fact that it was his employer rather than the sheriff, affords little comfort. The Fourth Amendment does not protect against unreasonable Governmental searches only but against all unreasonable searches.
The Court, therefore, finds that there is a Constitutional basis for enactment of the specific statutory provision which defendant is alleged to have violated.
I’m not persuaded. It is true that bugging by the government violates the Fourth Amendment. But Congress does not have penumbral power to punish Fourth Amendment violations; the Fourth Amendment is a limit on government rather than a source of power for it. Further, the Fourth Amendment does not apply to private citizens not acting in cahoots with the government. Perhaps you could argue that bugging by state officials technically violates the Fourteenth Amendment Due Process clause instead of the Fourth Amendment under the incorporation theory; that way, you could try to justify a prohibition on bugging under Section 5 of the Fourteenth Amendment. Cf. Screws v. United States, 325 U.S. 91 (1945). But this would require the ban to satisfy the congruence and proportionality test of City of Boerne v. Flores, 521 U.S. 507 (1997). Given that the ban applies to everyone, not just state government officials, I don’t think it can pass that test.
In United States v. Burroughs, 564 F.2d 1111 (4th Cir. 1977), the Fourth Circuit came up with an alternative strategy to save the statute: It simply invented an extra element of the crime. Burroughs involved bugging of a hotel room by private parties. When charges were brought, the district court ruled that the charges could not go forward because the statute was implicitly limited to government bugging rather than private party bugging. The government appealed, and the Fourth Circuit affirmed on different grounds. To avoid “substantially affect[ing] the federal-state balance,” the Fourth Circuit read the statute narrowly as implicitly requiring the prosecution to prove “some federal nexus.” “Absent proof of some federal nexus in each case,” the court held, “§ 2511(1)(a) would dramatically intrude upon traditional state criminal jurisdiction.” So it simply invented a new part of the crime, the proof of “some federal nexus.” At least one other court has taken the same approach. SeeUnited States v. Hubbard, 474 F.Supp. 64 (D.D.C. 1979) (recognizing that “the defendants have raised a very serious challenge to the facial validity of this statute,” but following Burroughs to save the constitutionality of the statute).
This approach strikes me as absurd. Congress plainly did not add this extra element of the crime; the Fourth Circuit just invented it out of thin air. And the court had no need to invent it, either. Congress carefully crafted a separate provision, 2511(1)(b), that has an explicit federal nexus. That separate provision is there in case the crime with no federal nexus, 2511(1)(a), was struck down. Inventing an amorphous “some federal nexus” requirement to save a statute that already has a backup provision with an explicit federal nexus strikes me as quite strange. It leads to an offense that has a judicially implied but notably vague “some federal nexus” requirement instead of Congress’s actual list of legislatively-drafted requirements.
Finally, all of these precedents predate the watershed case of United States v. Lopez, 514 U.S. 549 (1995). It seems to me that the federal ban on possessing guns in school zones that was struck down in Lopez is a lot like the federal ban on using bugging devices at issue here. As the Court wrote in Lopez:
[The ban] is a criminal statute that, by its terms, has nothing to do with “commerce” or any sort of economic enterprise, however broadly one might define those terms. [The ban] is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.
[Further, the ban] contains no jurisdictional element which would ensure, through case-by-case inquiry, that the [crime] in question affects interstate commerce.
That was equally true in Lopez and here. There aren’t even any legislative findings that a federal ban on bugging would affect interstate commerce; to the contrary, the legislative history is clear that the drafters knew that they were on thin ice, so much that they drafted a backup statute in case the broader statute was struck down.
Is there a good argument that 18 U.S.C. 2511(1)(a)’s general ban on intercepting oral communications is within Congress’s power? I don’t think so. Based on my read, the statute appears to exceed Congress’s power.