David Adams v. City of Battle Creek, a Municipal Corporation Jeffrey P. Kruithoff, an Individual

250 F.3d 980, 2001 U.S. App. LEXIS 8806, 2001 WL 497386

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 11, 2001
• Docket: 99-1543
• Status: Published

Opinions

OPINION

MERRITT, Circuit Judge.

With certain exceptions, the federal wiretap act criminalizes and creates civil liability for intentionally intercepting electronic communications without a judicial warrant. This case was brought under the federal wiretapping act, known as the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2522. It raises the question of whether the police department may tap a police officer’s pager without a warrant or notice to the officer. The police department, through use of a duplicate or “clone” pager, tapped without a warrant the plaintiffs pager provided' by the department because it erroneously thought he was assisting drug dealers. The case turns on what is meant when the Act uses the phrase “in the ordinary course of business” to create two exceptions to the prohibition against wiretapping.

In the present case it is both clear and conceded that the definition of “intercept” in the Act includes pagers within the language “acquisition of the contents of any ... electronic ... device.”¹ Then, in the definition section for “electronic device,” the statute creates two “in-the-ordinary-course-of-business” exceptions to wiretap liability. The scope and meaning of these two exceptions are up for interpretation in this appeal. The two exceptions are not altogether clear:

(5) “electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than—

(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider or wire oi’ electronic communication service in the ordinary course of business, or by an investigative or law enforcement officer in the ordinary course of his duties.

18 U.S.C. § 2510(5) (emphasis added).

The first problem is what the underlined phrase “other than” (normally an adverbial phrase, see Webster’s Third Int’l Diet (1958)) is supposed to modify. Does it modify the immediately preceding action “to intercept [an] ... electronic device,” or does it act as an adjective, modifying “device or apparatus” or does it modify some other action or thought not expressed in clear language? The second problem is: does the use of “in-the-ordinary-course-of-business” language, as an exception, imply, and therefore mean, that the tapping of the communication is so routine, customary or well accepted that the parties to the tapped communication would, should or did know of the tap. We will deal with these two issues of interpretation below.

1. The Meaning of the Phrase “Other Than.” — There is no discussion in the case law of what the phrase “other than” in the statutory definition of “electronic, mechanical or other device” is to modify. Its dictionary label as an adverbial phrase would indicate that it is to modify the immediately preceding verb phrase “to intercept a wire, oral, or electronic communication.” This does not make sense when read with the language that follows it.

If “other than” modifies “used to intercept ... electronic communication,” the scope of the “other than” exception would be as broad as the statute itself. This means, therefore, that “other than” must modify the nouns “device or apparatus.” The language immediately following “other than” is “any telephone or telegraph, or any component thereof,” all of which are also nouns. A better word choice than the “other than” phrase probably would have been “excluding” because subparts (a) and (b) to § 2510(5) are exclusions to the main definition. In any event, the cases discussing these exceptions apply “other than” this way, and it is the only way that makes sense.

2. Exceptions to Liability.— We conclude that the exceptions do not apply to this case. Both the “ordinary course of business” exception, or “business use” exception as it is also called, as well as the law enforcement exception, require that the interception of a communication be undertaken by employers or law enforcement agencies in the ordinary course of their businesses using equipment provided by a communications carrier as part of the communications network. For this exception to apply, we must find, first, that the equipment used to make the interception be “furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business ...” § 2510(5)(a)(i). Although plaintiff raises the issue of whether a clone pager fits within the definition prescribed in the exception, it is clear that the clone pager, a piece of electronic communication equipment, was provided to the City by MobileComm, a Bell South company, in the ordinary course of its business as a provider of wire and electronic communication services. We find, as did the district court, that the first part of the exception is met.

The second part of the exception requires that the clone pager be used in “the ordinary course” of the police department’s business. “Ordinary course of business” is not defined in the statute, but it generally requires that the use be (1) for a legitimate business purpose, (2) routine and (3) with notice. There is some disagreement in the case law about whether “covert” monitoring can ever be in the “ordinary course of business.” Although we do not find that the statute requires actual consent for the exception to apply, we do hold that monitoring in the ordinary course of business requires notice to the person or persons being monitored. Because it is undisputed here that plaintiff was not given any notice that his pager was being monitored, the exceptions cannot apply.

Most courts interpreting these exceptions have held that advance notice in some form is necessary. “What is ordinary is apt to be known; it imports implicit notice.” Amati v. City of Woodstock, 176 F.3d 952, 955 (7th Cir.), cert denied, — U.S. -, 120 S.Ct. 445, 145 L.Ed.2d 362 (1999). In Bohach v. City of Reno, 932 F.Supp. 1232 (D.Nev.1996), police officers claimed that the police department’s retrieval of stored messages generated by their pagers was a violation of the Act. The court held that the officers had no reasonable expectation of privacy when the police department warned pager users in advance that their messages would be logged on the network. In Sanders v. Robert Bosch Corp., 38 F.3d 736, 740-42 (4th Cir.1994), the Fourth Circuit held that recording all telephone conversations on certain lines after bomb threats were received by the company was not in the ordinary course of business where the employees did not receive notice of the recording.

Defendants here did not routinely monitor officers’ pagers or give notice to officers that random monitoring of their department-issued pagers was possible. We disagree with defendants to the extent that they contend that plaintiff impliedly consented to the interception of his pages by the clone pager simply because he accepted and used a department-issued pager. The general policy of the department that department-issued equipment, which includes the pager, was not to be “converted to personal use” cannot provide the necessary notice to officers to find consent to surreptitious interception of their messages by clone pagers. The so-called policy prohibiting personal use cannot form an after-the-fact justification for intercepting plaintiffs pager where the policy had not been enforced and the department conceded it was aware that pagers were used by many members of the force for personal use.

We do not find any need under the facts presented here to analyze the “business use” and “law enforcement” exceptions separately. Congress most likely carved out an exception for law enforcement officials to make clear that the routine and almost universal recording of phone lines by police departments and prisons, as well as other law enforcement institutions, is exempt from the statute. See First v. Stark Cnty. Bd. of Comm’rs, No. 99-3547, 2000 WL 1478389 (6th Cir. Oct.4, 2000). Such a system routinely and indiscriminately records all phone activity in and out of the police department. This practice is well known in the industry and in the general public, and the courts have ruled that even prisoners are entitled to some form of notice that such conversations may be monitored or recorded. United States v. Paul, 614 F.2d 115 (6th Cir.1980); see also, e.g., United States v. Van Poyck, 11 F.3d 285 (9th Cir.1996) (detention center); United States v. Daniels, 902 F.2d 1238, 1245 (7th Cir.1990); United States v. Amen, 831 F.2d 373, 378 (2d Cir.1987); Campiti v. Walonis, 611 F.2d 387 (1st Cir.1979) (monitoring of specific inmate call, without regulation or notice, and not routinely done, violates statute).

3. Municipal Liability Under the Privacy Act. — Plaintiff seeks to hold the City liable under the wiretapping act, as well as Jeffrey Kruithoff, a police department employee. Defendants raise the question of whether the City is a “person” for purposes of the Act. The statute defines “person” as “any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation.” 18 U.S.C. § 2510(6).

Most courts addressing the issue have held that the 1986 amendments indicate that a governmental entity may be liable in a civil suit under the Act. Organizacion JD Ltda. v. United States Dep’t of Justice, 18 F.3d 91, 94-95 (2d Cir.1994); Conner v. Tate, 130 F.Supp.2d 1370, 1374-75 (N.D.Ga.2001); Dorris v. Absher, 959 F.Supp. 813, 819-20 (M.D.Tenn.1997) (municipal liability exists), aff'd in part on other grounds and rev’d in part, 179 F.3d 420 (6th Cir.1999) (claims against county were settled prior to appeal and therefore not addressed on appeal); PBA Local No. 38 v. Woodbridge Police Dep’t, 832 F.Supp. 808, 822-23 (D.N.J.1993).

Only the Seventh Circuit has ruled to the contrary. Amati v. City of Woodstock, 176 F.3d 952, 956 (7th Cir.), cert. denied, — U.S. -, 120 S.Ct. 445, 145 L.Ed.2d 362 (1999). It based its cursory decision to exempt governmental entities from liability under the Act solely on the plain language of the definition of “person” in the statute, which does not expressly include governmental entities; but it did not deal with the meaning of the word “entity.” Finding no ambiguity, it refused to look to the legislative history. But we look to the legislative history in order to give meaning to the word “entity,” which was added to the definition in 1987.

The provision of the Act providing for civil liability, section 2520,² was amended in 1987 and made part of the 1986 Privacy Act. The amendment added the words “or entity” to those who may be held liable under the Act. The addition of the words “entity” can only mean a governmental .entity because prior to the 1986 amendments, the definition of “person” already included business entities. In order for the term not to be superfluous, the term “entity” necessarily means governmental entities. As support for this view, we note that the amendment added the same language to the civil liability provision for interception of stored wire and electronic communications under 18 U.S.C. § 2707(a). The Senate Committee Report summarizing § 2707, the parallel section for liability for intercepting stored communications, specifically states that the word “entity” includes governmental entities. S.Rep. No. 541, 99th Cong., 2d Sess. 43 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3597.

Based on the amendments to the statute and the legislative history behind them, as well as the case law considering the issue, we hold that governmental entities may be liable under 18 U.S.C. § 2520. Finding that a municipality may be liable under the Act, we conclude that questions of material fact remain as to who was involved in authorizing the interception and how it arose. Summary judgment is not appropriate on this issue at present because the facts are undeveloped. We remand it to the district court for further development of this issue.

4. The Fourth Amendment. — Plaintiff also claims that monitoring his pager through use of the clone pager constitutes an illegal “search and seizure” in violation of his Fourth Amendment rights, actionable through 42 U.S.C. § 1983. The defendants argued, and the district court agreed, that plaintiff had no right to privacy in his department-issued pager and that no Fourth Amendment violation occurred.

Supreme Court precedent makes it clear that courts should avoid unnecessary adjudication of constitutional issues. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (“The Court will not pass on a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”). Accord United States v. Vaughn, No. 97-3539, 1998 WL 774004, *3, 248 F.3d 1154 (6th Cir. Oct.13, 1998). Where a statutory or nonconstitutional basis exists for reaching a decision, as it does here, it is not necessary to reach the constitutional issue.

One application of this doctrine is the principle of statutory construction that states that a comprehensive statute, like the federal wiretapping statute, designed to protect specific constitutional values may be read to provide the exclusive remedies in the field so long as the statute itself suffers no constitutional infirmity. Sutherland Statutory Construction § 499-500 (1984 ed.). See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (although § 1983 by its terms was literally applicable to prisoners’ actions, some actions lie under habeas corpus as “the more specific act”); Lee v. Hughes, 145 F.3d 1272, 1276-77 (11th Cir.1998) (given comprehensive statutory scheme established by Civil Service Reform Act, federal officer was precluded from raising § 1983 claim); NAACP, Detroit Branch v. Detroit Police Officers Ass’n, 900 F.2d 903, 912-13 (6th Cir.1990) (plaintiff cannot bring claims under §§ 1981 and 1983 that fall within Title VII’s parameters). The Electronic Communications Privacy Act is part of detailed legislative scheme under Title III of the Omnibus Crime and Control Act of 1986. The legislation seeks to balance privacy rights and law enforcement needs, keeping in mind the protections of the Fourth Amendment against unreasonable search and seizure. Congress made the Act the primary vehicle by which to address violations of privacy interests in the communication field. Berry v. Funk, 146 F.3d 1003, 1013 (D.C.Cir.1998) (citing City of Milwaukee v. Illinois, 451 U.S. 304, 314, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981)). No claim is made that the statute is unconstitutional or that it is less protective of privacy rights than the Fourth Amendment. The plaintiff makes no claim that Fourth Amendment rights, as they relate to wiretapping, are broader or more comprehensive than the federal statute. There is no difference between the conduct relevant to plaintiffs statutory claim and the conduct relevant to his constitutional claim. Because no argument is made that the substantive or remedial standards provided by the Fourth Amendment differ from the federal statute, we do not reach any question of interpretation under the Fourth Amendment. All such constitutional issues are pretermitted.

5. Qualified Immunity for Kruithoff. — As an alternative to affirming summary judgment, Kruithoff urges us to affirm the district court as to him on the ground of qualified immunity for both the Privacy Act and Fourth Amendment claims. The district court did not rule on this defense because it found no liability and we generally do not address issues that were not addressed below. In addition, a factual dispute remains as to Krui-thoff s role, if any, in authorizing the clone pager. Two witnesses testified that he authorized its use, but Kruithoff denies this. Qualified immunity is generally not appropriate where questions of fact remain. Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

CONCLUSION

For the foregoing reasons, we reverse the district court’s grant of summary judgment to defendants, affirm the denial of plaintiffs partial motion for summary judgment and remand to the district court for further proceedings.

1 . Section 2510(4) says: " '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....”

2 . 18 U.S.C. § 2520 provides:

Except as provided in 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.