Gilday v. Dubois
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Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1831
WILLIAM MORRILL GILDAY, JR.,
Plaintiff, Appellant,
v.
LARRY DUBOIS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Cyr, Circuit Judge,
Stearns, U.S. District Judge,
and Gertner, U.S. District Judge.
Mark M. Owen, with whom Edward S. Rooney, Jr., Andrea C. Dow and
Lyne, Woodworth & Evarts LLP were on brief for appellant.
Philip W. Silva, Department of Correction, with whom Nancy Ankers
White, Special Assistant Attorney General, was on brief for appellees
Dubois and Matesanz.
Thomas R. Teehan for appellee New England Telephone and Telegraph
Company.
Susan E. Stenger, with whom Lawrence G. Green and Perkins, Smith
& Cohen, LLP were on brief for appellee AT&T Corp.
August 29, 1997
Of the District of Massachusetts, sitting by designation.
Of the District of Massachusetts, sitting by designation.
CYR, Circuit Judge. Plaintiff William Morrill Gilday,
Jr. challenges a summary judgment ruling dismissing his civil
rights claims and related claims for civil contempt against
appellees Larry Dubois and James Matesanz, of the Massachusetts
Department of Correction ("DOC"), and appellees American Telephone
and Telegraph Corporation ("AT&T") and New England Telephone and
Telegraph Company ("NET"). As Gilday failed to generate a
trialworthy issue with respect to any claim, we affirm the district
court judgment.
I
BACKGROUND
After killing a Boston police officer during a 1970 bank
robbery in Brighton, Massachusetts, Gilday was convicted of first
degree murder and armed robbery, for which he is now serving
concurrent life sentences at the Bay State Correctional Center in
Norfolk, Massachusetts. In 1974, Gilday commenced a civil rights
action in federal district court against various FBI and DOC offi-
cials, see Gilday v. Webster, No. 74-4169-C, alleging interference
with attorney-client communications in violation of the Sixth and
Fourteenth Amendments, and violations of the federal and state
wiretap statutes, 18 U.S.C. SS 2510 et seq., and Mass. Gen. L. ch.
The relevant facts are related in the light most favorable to
Gilday, against whom summary judgment entered. Hegarty v. Somerset
County, 53 F.3d 1367, 1370, n.1 (1st Cir.), cert. denied, 116 S.
Ct. 675 (1995).
2
272, SS 99 et seq. Gilday alleged that federal and state officials
were opening his prison mail and intercepting his telephone
communications in a coordinated effort to gather information
regarding others involved in the Brighton bank robbery.
Approximately ten years later, Gilday and four DOC
officials entered into a stipulation ("settlement stipulation")
which led to the following permanent injunction against the DOC and
the defendant DOC officials on September 12, 1984 ("the Gilday
injunction"):
PERMANENT INJUNCTION
Having reviewed and approved the Settle-
ment Stipulation dated September 10,
1984, and after hearing, it is hereby
ORDERED, DECREED AND ADJUDGED as follows:
1. All officers, agents, ser-
vants, employees and attorneys
of the Department of Correction
are enjoined permanently, under
both 18 U.S.C. S 2510 et seq.
and M.G.L. c. 272, S 99 et
seq., from intercepting, en-
deavoring to intercept, or pro-
curing any other person to in-
tercept or endeavor to inter-
cept, any wire communication by
or to plaintiff William Gilday
without a specific court order
or legislative authorization to
do so, except as specifically
permitted by these statutes,
taken together, as they have
been amended or may be amended
Around the same time, Gilday brought a pro se action against
four supervisory DOC officials alleging due process violations,
denial of access to the courts, and theft of personal belongings.
See Gilday v. Boone, 657 F.2d 1 (1st Cir. 1981).
Gilday proceeded with the action against the nonsettling DOC
officials.
3
and as they have been construed
or may be construed in reported
decisions that are binding in
this Court or in the state
courts of Massachusetts.
2. [mail restrictions]
3. This Permanent Injunction,
entered pursuant to the settle-
ment stipulation dated Septem-
ber 10, 1984, shall operate
prospectively only; it shall
not prejudice the rights of
nonsettling defendants or, of
its own force, affect the
rights of inmates other than
William Gilday.
(Emphasis added.)
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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1831
WILLIAM MORRILL GILDAY, JR.,
Plaintiff, Appellant,
v.
LARRY DUBOIS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Cyr, Circuit Judge,
Stearns, U.S. District Judge,
and Gertner, U.S. District Judge.
Mark M. Owen, with whom Edward S. Rooney, Jr., Andrea C. Dow and
Lyne, Woodworth & Evarts LLP were on brief for appellant.
Philip W. Silva, Department of Correction, with whom Nancy Ankers
White, Special Assistant Attorney General, was on brief for appellees
Dubois and Matesanz.
Thomas R. Teehan for appellee New England Telephone and Telegraph
Company.
Susan E. Stenger, with whom Lawrence G. Green and Perkins, Smith
& Cohen, LLP were on brief for appellee AT&T Corp.
August 29, 1997
Of the District of Massachusetts, sitting by designation.
Of the District of Massachusetts, sitting by designation.
CYR, Circuit Judge. Plaintiff William Morrill Gilday,
Jr. challenges a summary judgment ruling dismissing his civil
rights claims and related claims for civil contempt against
appellees Larry Dubois and James Matesanz, of the Massachusetts
Department of Correction ("DOC"), and appellees American Telephone
and Telegraph Corporation ("AT&T") and New England Telephone and
Telegraph Company ("NET"). As Gilday failed to generate a
trialworthy issue with respect to any claim, we affirm the district
court judgment.
I
BACKGROUND
After killing a Boston police officer during a 1970 bank
robbery in Brighton, Massachusetts, Gilday was convicted of first
degree murder and armed robbery, for which he is now serving
concurrent life sentences at the Bay State Correctional Center in
Norfolk, Massachusetts. In 1974, Gilday commenced a civil rights
action in federal district court against various FBI and DOC offi-
cials, see Gilday v. Webster, No. 74-4169-C, alleging interference
with attorney-client communications in violation of the Sixth and
Fourteenth Amendments, and violations of the federal and state
wiretap statutes, 18 U.S.C. SS 2510 et seq., and Mass. Gen. L. ch.
The relevant facts are related in the light most favorable to
Gilday, against whom summary judgment entered. Hegarty v. Somerset
County, 53 F.3d 1367, 1370, n.1 (1st Cir.), cert. denied, 116 S.
Ct. 675 (1995).
2
272, SS 99 et seq. Gilday alleged that federal and state officials
were opening his prison mail and intercepting his telephone
communications in a coordinated effort to gather information
regarding others involved in the Brighton bank robbery.
Approximately ten years later, Gilday and four DOC
officials entered into a stipulation ("settlement stipulation")
which led to the following permanent injunction against the DOC and
the defendant DOC officials on September 12, 1984 ("the Gilday
injunction"):
PERMANENT INJUNCTION
Having reviewed and approved the Settle-
ment Stipulation dated September 10,
1984, and after hearing, it is hereby
ORDERED, DECREED AND ADJUDGED as follows:
1. All officers, agents, ser-
vants, employees and attorneys
of the Department of Correction
are enjoined permanently, under
both 18 U.S.C. S 2510 et seq.
and M.G.L. c. 272, S 99 et
seq., from intercepting, en-
deavoring to intercept, or pro-
curing any other person to in-
tercept or endeavor to inter-
cept, any wire communication by
or to plaintiff William Gilday
without a specific court order
or legislative authorization to
do so, except as specifically
permitted by these statutes,
taken together, as they have
been amended or may be amended
Around the same time, Gilday brought a pro se action against
four supervisory DOC officials alleging due process violations,
denial of access to the courts, and theft of personal belongings.
See Gilday v. Boone, 657 F.2d 1 (1st Cir. 1981).
Gilday proceeded with the action against the nonsettling DOC
officials.
3
and as they have been construed
or may be construed in reported
decisions that are binding in
this Court or in the state
courts of Massachusetts.
2. [mail restrictions]
3. This Permanent Injunction,
entered pursuant to the settle-
ment stipulation dated Septem-
ber 10, 1984, shall operate
prospectively only; it shall
not prejudice the rights of
nonsettling defendants or, of
its own force, affect the
rights of inmates other than
William Gilday.
(Emphasis added.)
Over the next ten years, however, developments in
electronic technology, as well as inmate ingenuity, prompted
increased prison-telephone abuses, such as acquiring merchandise
by fraud, promoting drug violations, soliciting murder, harassing
crime victims, witnesses, and public officials, facilitating escape
plots, violating court restraining orders, and threatening domestic
violence. The DOC responded in 1993 by inviting telephone-system
vendors to furnish, install, and maintain an advanced prison
telephone system designed to deter inmate abuses by monitoring,
recording, and "detailing" their calls.
Ultimately, NET contracted to produce, install, and
For example, one DOC inmate alone managed to mischarge 271 so-
called "third-party" calls to a single business firm in one month.
See infra note 19.
Call "detailing" involves recording such billing-related
matters as the number called and the duration of the call.
4
maintain an inmate telephone system for all DOC facilities, which
became known as the Massachusetts Inmate Telephone System ("MITS"),
to supply both local and long distance service and remit to the DOC
forty percent of the gross revenues from inmate calls. NET in turn
subcontracted with AT&T to furnish long distance MITS service. A
third company, Telematic Corporation, contracted with AT&T and NET
to provide the electronic equipment and software needed to
provision the system.
On April 8, 1994, the DOC promulgated new inmate
telephone regulations, see 103 C.M.R. SS 482.00 et seq. ("MITS
Regulations"), "establish[ing] Department procedures regarding
access to, use of and the monitoring and/or recording of inmate
telephones." Id. S 482.01. Under the MITS Regulations, a personal
identification number ("PIN") is randomly assigned to each inmate.
The inmate must dial the assigned PIN immediately before dialing
the telephone number, whereupon an automatic operator completes the
connection. No more than fifteen designated parties are accessible
with any PIN: ten friends and family members and five attorneys.
See id. S 482.07(3)(c); Bender Aff. q 8. The right to call
designated attorneys may not be suspended or curtailed except
during an institutional emergency, see id. SS 482.08-482.09,
whereas the right to call other designated parties is subject to
disciplinary restriction, see id. SS 482.07(3)(h), 482.09. In
addition, all inmates are allowed to call three prison legal-
service organizations.
Stickers on all MITS telephones alert inmates to the
5
monitoring/recording regime. All inmate calls, except pre-
authorized attorney calls and legal-service organization calls, are
automatically recorded. Certain "detailing" information is
recorded on all calls either attempted or completed. Finally, all
except attorney and legal-service organization calls may be
subjected to concurrent monitoring ( i.e., listened in on) by autho-
rized DOC personnel, either at random or for investigative
purposes. See id. S 482.07(3)(d).
In order to obtain an individual PIN, the inmate must
complete and sign a "Number Request Form," designating the attorney
and nonattorney telephone numbers which may be called. The form
advises inmates that their "acceptance and use of a PIN and use of
inmate telephones shall be deemed as consent to the conditions and
restrictions placed upon inmate telephone calls, including call
monitoring, recording, and call detail." All inmate calls must be
placed "collect." Id. S 482.07(3)(a). Each call begins with a
recorded message audible by both parties that the call has
been placed "collect" by a DOC inmate and is subject to recordation
and "detailing." See id. S 482.07(3)(g); Kennedy Aff. q 10. Both
parties hear the entire message, but there can be no communication
until the collect call has been accepted by the person called. See
103 C.M.R. S 482.07(3)(f); Bender Aff. q 11.
Gilday declined to submit a PIN request form, on the
ground that the MITS contravenes the federal and state wiretap
6
statutes and therefore violates the Gilday injunction. At about
the same time, Gilday mailed AT&T and NET copies of the Gilday
injunction entered September 12, 1984, see supra pp. 3-4, advising
that their provision of MITS services would violate the injunction.
Shortly thereafter Gilday petitioned the federal district
court for a contempt citation against AT&T, NET, and various DOC
officials, claiming that the defendants were "endeavoring to
intercept" his telephone communications. Although neither AT&T nor
NET was privy to the Gilday injunction, Gilday asserted that both
received actual notice by mail, supra pp. 6-7, and therefore
knowingly aided and abetted the alleged violations by the DOC
defendants. Finally, Gilday alleged, the defendants were depriving
him of his "federal right to be free of any interception of his
wire communications," as well as his Sixth Amendment right to
counsel and his Fourteenth Amendment right of access to the courts,
by restricting consultation with counsel regarding six pending
judicial proceedings.
The district court entered summary judgment for the
defendants, on the ground that the Gilday injunction bans neither
monitoring nor recording, but only "interceptions." It noted that
no secretive, nonconsensual monitoring or recording hence no
Consequently, for the most part Gilday has been without
telephone access since the MITS went into operation. Under a
stipulation among the parties, however, he has been allowed limited
telephone use in order to communicate with counsel regarding his
unrelated appeal in Gilday v. Callahan, 866 F.Supp. 611 (D. Mass.
1994), aff'd, 59 F.3d 257 (1st Cir. 1995), cert. denied, 116 S. Ct.
1269 (1996).
7
"interception" had occurred under either wiretap statute, since
all recording and monitoring is well advertised as required by the
MITS Regulations. See supra p. 6. The district court reasoned
that inmates render the MITS monitoring/recording regime consensual
by executing the request form and utilizing the MITS. And since it
found the term "interception" ambiguous at best, the district court
determined to resolve any interpretive doubts favorably to the
defendants. Finally, it dismissed the Gilday claims relating to
call "detailing," on the ground that Langton v. Hogan, 71 F.3d 930
(1st Cir. 1995), had already endorsed the MITS practice in this
regard. Accordingly, it concluded that the attendant recording and
monitoring did not constitute an "interception" under either the
federal or state wiretap statute, thus did not contravene the
Gilday injunction.
Thereafter, the district court dismissed the section 1983
claims as well, on the ground that Gilday retained all mail
privileges, access to a prison law library, the right to meet with
counsel and, under the MITS regulations, the right to conduct
unmonitored telephone communications with five attorneys and three
legal-service organizations.
The district court likewise determined that the defendant DOC
officials came within the "law enforcement" exceptions to the
respective wiretap statutes. See 18 U.S.C. S 2510(5)(a)(ii)
(excluding interceptions by an "investigative or law enforcement
officer in the ordinary course of his duties"); Mass. Gen. L. ch.
272, S 99(D)(1)(c) (exempting federal law enforcement officials);
see also, e.g., United States v. Sababu, 891 F.2d 1308, 1328-29
(7th Cir. 1989) (concluding that a prison monitoring regime,
conducted as part of an "institutionalized, ongoing policy[,]" does
not constitute "interception").
8
II
DISCUSSION
A. Standard of Review
A summary judgment ruling is reviewed de novo and must be
affirmed if the record, viewed in the light most favorable to the
nonmoving party, "reveals no trialworthy issue of material fact and
the moving party is entitled to judgment as a matter of law."
Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 874-75 (1st Cir.
1993). Moreover, we may affirm "on any independently sufficient
ground." Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859,
860-61 (1st Cir. 1987).
B. The Contempt Claims
Gilday mounts several challenges to the district court
rulings on the contempt claims. We address these arguments in
turn, mindful that it was for Gilday to establish by "'clear and
convincing evidence[,]'" Project B.A.S.I.C. v. Kemp, 947 F.2d 11,
16 (1st Cir. 1991) (quoting Langton v. Johnston, 928 F.2d 1206,
1220 (1st Cir. 1991)), that the particular defendant violated an
unambiguous consent decree "that left no reasonable doubt as to
what behavior was to be expected," id. at 17. See also Porrata v.
Gonzalez-Rivera, 958 F.2d 6, 8 (1st Cir. 1992) (stating that
complainant must clearly establish that "a lucid and unambiguous
consent order has been violated"); NBA Properties, Inc. v. Gold,
895 F.2d 30, 32 (1st Cir. 1990) (similar). Moreover, "'the party
enjoined must be able to ascertain from the four corners of the
order precisely what acts are forbidden.'" Kemp, 947 F.2d at 17
9
(quoting Drywall Tapers & Painters of Greater N.Y., Local 1974 v.
Local 530 of Operative Plasterers & Cement Masons Int'l Ass'n , 889
F.2d 389, 395 (2d Cir. 1989) (citation omitted)); see also Reed v.
Cleveland Bd. of Educ. , 607 F.2d 749, 752 (6th Cir. 1979) (stating
that judicial order must "clearly tell a reasonable person what he
is required to do or abstain from doing"). From these requirements
flows the important corollary that courts are to construe ambigu-
ities and omissions in consent decrees as "'redound[ing] to the
benefit of the person charged with contempt.'" NBA Properties , 895
F.2d at 32 (quoting Ford v. Kammerer, 450 F.2d 279, 280 (3d Cir.
1971) (per curiam)); see also Kemp, 947 F.2d at 16 (same).
1. Issue Preclusion
As a threshold matter, Gilday insists that the DOC
defendants are collaterally estopped from contending that the MITS
does not violate the Gilday injunction, because this issue was
resolved in Langton v. Hogan, No. 79-2167-Z, 1995 WL 96948 (D.
Mass. Feb. 21, 1995), which culminated in a permanent injunction
("the Langton injunction") almost identical to the Gilday injunc-
tion.
Collateral estoppel, or issue preclusion, bars
relitigation of any issue " actually decided in previous litigation
'between the parties, whether on the same or a different claim.'"
Grella v. Salem Five Cent Sav. Bank , 42 F.3d 26, 30 (1st Cir. 1994)
(quoting Dennis v. Rhode Island Hosp. Trust , 744 F.2d 893, 899 (1st
Cir. 1984) (emphasis in original) (quoting Restatement (Second) of
Judgments, S 27 (1982)). Although "[a]n issue may be 'actually'
10
decided even if it is not explicitly decided, for it may have
constituted, logically or practically, a necessary component of the
decision reached in the prior litigation," Grella, 42 F.3d at 30-31
(emphasis in original), the narrow, fact-based district court
decision in Langton had simply declined to modify the injunction in
that case, to permit monitoring and recording, because there was no
evidence of inmate-telephone abuse by Langton or his fellow
plaintiff. Thus, as the district court ruling on the petition for
modification in Langton neither addressed nor implicated the
question whether the MITS violates either the state or federal
wiretap statute, see Langton, No. 79-2167-Z, 1995 WL 96948, it
neither "actually" nor "necessarily" determined that the MITS
regime violated the Langton injunction, let alone the Gilday
injunction. See Grella, 42 F.3d at 30 (stating that "the determi-
nation of the issue must have been essential to the judgment");
see also NLRB v. Donna-Lee Sportswear Co., Inc., 836 F.2d 31, 34
(1st Cir. 1987) (same).
2. Claim Preclusion
Gilday next contends that the 1984 consent decree
precludes the DOC defendants from claiming that the MITS does not
violate the Gilday injunction, because our decision in Langton v.
Hogan, 71 F.3d 930, 933-35 (1st Cir. 1995), involving a similar
Furthermore, a determination that the MITS violated the
Langton injunction with its materially different language and
discrete purpose, see infra, pp. 12-25 could not constitute a
determination that the Gilday injunction, with its less restrictive
language and scope, see infra p. 25, had been violated.
11
injunction, held that the DOC was precluded from contesting the
meaning of the same state and federal wiretap statutes there
involved without first obtaining a court order modifying the
injunction. Once again we are unable to agree, as the Langton
panel decision is inapposite for several reasons.
First, although the parties to a consent decree are bound
by traditional preclusion principles and may not litigate claims
necessarily resolved by the decree, see id. at 933-34, the Gilday
injunction unlike the Langton injunction expressly provided
that reported decisions authoritatively construing the relevant
state and federal wiretap statutes (hereinafter: "authoritative
decisions") were to control their future construction for all
purposes material to the Gilday injunction. See supra pp. 3-4
("All [DOC agents] are enjoined permanently . . . from . . .
endeavoring to intercept . . . any wire communication by or to
[Gilday] . . . except as specifically permitted by these statutes
. . . as they have been construed or may be construed in [authori-
tative decisions]."). (Emphasis added.) Thus, the construction
suggested by Gilday would ignore language expressly limiting the
scope of the Gilday injunction. See Mackin v. City of Boston , 969
F.2d 1273, 1277 (1st Cir. 1992) (declining to construe consent
decree so as to "overlook[] the language of the decree itself").
See also United States v. ITT Continental Baking Co. , 420 U.S. 223,
236-37 (1975) (construing consent decrees as contracts); System-
ized of New England, Inc. v. SCM, Inc., 732 F.2d 1030, 1034 (1st
Cir. 1984) (noting that courts are to adopt constructions that
12
"give meaning and effect to every part of a contract and reject
those which reduce words to mere surplusage"). Accordingly, the
Gilday injunction did not preclude reliance on intervening authori-
tative decisions construing the state and federal wiretap statutes.
Instead, "construed as it is written," United States v. Armour &
Co., 402 U.S. 673, 682 (1971), the Gilday injunction, unlike the
Langton injunction, plainly envisioned their consideration.
Second, although the Langton panel majority concluded
that the DOC had relinquished any right to litigate the meaning of
these wiretap statutes as against the Langton inmates, see Langton,
71 F.3d at 933-34, it did so because it believed those inmates
otherwise would have gained nothing beyond a mere promise by the
DOC to obey the law:
The usually understood meaning of a Settlement
Stipulation is that each party is agreeing to
give up something to yield on one or more
reasonably plausible contentions of law, or
fact, or mixed-law-fact issues. "[T]he agree-
ment reached normally embodies a compromise;
in exchange for the saving of cost and elimi-
nation of risk, the parties each give up
something they might have won had they pro-
ceeded with the litigation." When making an
agreement for a consent decree, the parties to
a case are agreeing not to press any of their
disputes to decision in court. The parties
forego "their right to litigate issues in-
volved in the case and thus save themselves
the time, expense and inevitable risk of liti-
gation."
The Langton injunction prohibited the DOC defendants from
intercepting inmate wire communications except as specifically
permitted by the federal and state wiretap statutes "as they have
been construed in reported decisions that are binding on this court
or in the state courts of Massachusetts." Langton, 71 F.3d at 931
(emphasis added).
13
Id. (quoting Armour & Co., 402 U.S. at 681) (internal citation
omitted).
On the other hand, in the present case the consent decree
secured Gilday a substantial independent benefit unavailable to the
Langton plaintiffs. As the district court recognized, Gilday had
alleged in his 1974 action against the DOC that he was the target
of two secret federal and state law enforcement efforts, directed
by the FBI and code-named "STOP" and "GILROB," aimed at gathering
information about his as-yet unapprehended accomplices in the
Brighton bank robbery. See supra p. 3. In securing the 1984
consent decree, therefore, Gilday obtained permanent injunctive
relief from any DOC participation in current or future wire-
communication interceptions unlawfully directed against him by
these state and federal law enforcement agencies consideration
unavailable to the Langton litigants. Accordingly, notwithstanding
that the Gilday consent decree permitted the DOC to litigate future
unresolved issues relating to the meaning of the applicable wiretap
statutes, Gilday obtained substantial consideration for entering
into the settlement with the DOC. Thus, the Langton panel
majority's concerns over a lack of meaningful consideration for the
Langton plaintiffs' consent are not implicated to the same degree
in the present context.
Finally, the Langton and Gilday cases presented
themselves in materially different ways on appeal. The Langton
panel was asked to review, inter alia, a district court ruling
denying a DOC petition to modify the Langton injunction. See id.
14
at 931. On appeal, the DOC claimed that the district court had
broadened the injunction impermissibly in favor of the Langton
inmates. Id. at 933. The Langton panel majority first decided
that the parties had relinquished their respective rights to
litigate the meaning of the wiretap statutes underlying the
injunction, and then determined that no authoritative decision,
existing at the time the Langton injunction issued, specifically
supported the challenged MITS monitoring and recording practices.
Finally, the Langton majority went on to survey
subsequent decisional law, simply noting without resolving the
merits that "reasonable [competing] arguments can be advanced"
as to whether the challenged MITS monitoring and recording regime
violated the federal wiretap statute. Id. at 935-37; see also id.
at 940 ("Nor does the panel majority hold that the present regime
is unlawful under the federal and state statutes but only that
reasonable arguments can be made on both sides.") (Boudin, J.,
dissenting) (emphasis in original). Thus, the Langton majority
simply decided that the DOC had failed to carry its burden of
demonstrating any change in the law, or the facts, which would
warrant modification of the injunction. See id. at 937-38
(sustaining modification ruling as "appropriately tailored to the
only changes in law or in fact disclosed on the record before the
district court").
In the present case, on the other hand, Gilday alleges
DOC violations of an injunction which expressly contemplates that
authoritative decisions subsequent to the Gilday injunction may
15
determine whether a violation has occurred. See supra pp. 12-13.
Moreover, since the Langton panel majority never reached the merits
regarding the lawfulness of the MITS regime under either wiretap
statute, see supra p. 15, we may consider afresh whether the
challenged MITS practices violate the Gilday injunction. Finally,
we are required to review the district court's summary judgment
ruling against Gilday de novo. See Velez-Gomez, 8 F.3d at 874-75.
For the foregoing reasons, we conclude that the DOC is
entitled to litigate the meaning of the applicable wiretap
statutes.
3. The Gilday Injunction
Gilday argues that the DOC defendants violated the Gilday
injunction by endeavoring to monitor and record his wire communica-
tions in violation of the state and federal wiretap statutes. The
linchpin in this argument is that no authoritative decision
"specifically" construes either the federal or state wiretap
statute to "permit" the inmate-telephone system established under
the MITS. In other words, Gilday argues that the injunction is
violated absent an authoritative decision validating either the
MITS regime itself or substantially similar practices in a
comparable prison context. At its most particular level, this
contention would necessitate an authoritative decision declaring
the challenged MITS practices compatible with the applicable
wiretap statutes.
We test this contention against the language employed in
the Gilday injunction, viewed in its unique litigation context,
16
including the particular circumstances surrounding its formation
and the basic purposes it was designed to serve. See ITT
Continental Baking Co., 420 U.S. at 238 (construing ambiguous
language in consent decree in light of "the circumstances surround-
ing [its] . . . formation"); see also Massachusetts Ass'n for
Retarded Citizens, Inc. v. King, 668 F.2d 602, 607-08 (1st Cir.
1981) (construing consent decree in light of its language, the
circumstances surrounding its formation, and its basic purposes);
Cornelius v. Hogan, 663 F.2d 330, 333 (1st Cir. 1981) (noting that
court construing ambiguous consent decree may "inquire into the
parties' intent and the circumstances surrounding the decree in
order to select the most reasonable interpretation").
As a preliminary matter it is necessary to note, however,
that no violation of the injunction can be found unless Gilday
first established an "interception," as defined under either the
federal or Massachusetts wiretap statute, based on "clear and
convincing evidence," Kemp, 947 F.2d at 16 (citation and quotation
marks omitted). See infra pp. 25-27, 29-30. Therefore, Gilday's
insistent contention on appeal that no MITS practice can ever be
allowed under the Gilday injunction unless it has been
"specifically permitted" beforehand by an authoritative decision
cannot succeed.
Moreover, even assuming Gilday were to demonstrate an
"interception," the injunction expressly excepts from its reach any
practice "specifically permitted" under the wiretap statutes as
construed in authoritative decisions, see supra pp. 3-4, and the
17
term "specifically permitted" is susceptible to various reasonable
interpretations. On the one hand, "specifically permitted" may be
read to require an authoritative decision that the MITS regime, as
applied directly to Gilday, comports with the applicable wiretap
statutes. See Webster's Third New International Dictionary 2187
(1986) (noting that term "specific" may connote restriction "to a
particular individual"); see also Barnett Bank of Marion County,
N.A. v. Nelson, U.S. , , 116 S. Ct. 1103, 1111 (1996)
(noting that "'[s]pecifically' can mean 'explicitly, particularly,
[or] definitively'") (quoting Black's Law Dictionary 1398 (6th ed.
1990) (emphasis added)). Under such a reading, an authoritative
decision would be unavailing to the DOC defendants unless it
explicitly addressed the MITS monitoring and recording of wire
communications involving Gilday. On the other hand, "specifically
permitted" may contemplate simply an authoritative decision
upholding interceptions involving some other DOC inmate or DOC
inmates in general. See Webster's Third New International Dictio-
nary at 2187 (noting that "specific" may merely restrict to a
particular situation). Under these interpretations, therefore,
Gilday would need to demonstrate simply an absence of authoritative
decisions specifically permitting the challenged MITS practices as
applied directly to him or to similarly situated inmates. See
Ambiguity is the "condition of being understood in more than
one way." Webster's Third New International Dictionary 2187
(1966); see also William Empson, Seven Types of Ambiguity 1 (2d ed.
1966) (defining ambiguity as "any verbal nuance, however slight,
which gives room for alternative reactions to the same piece of
language").
18
Langton, 71 F.3d at 935-37 (noting no reported decision "holding
that this type of prison telephone monitoring system" meets
"consent" exception to federal wiretap statute).
Alternatively, at a more universal level, "specifically
permitted" may simply contemplate an authoritative decision
upholding the general types or kinds of monitoring and recording
practices prescribed by the MITS, without regard to whether the
practices were employed in a prison context. See 2 The Oxford
English Dictionary 2949 (Compact Ed. 1987) (defining "specifically"
as "[i]n something of the same kind"); see also Webster's Third
New International Dictionary at 2187 (defining "specific" as
"constituting or falling into the category specified"); Webster's
New World Dictionary of American English 1287 (3d ed. 1988)
(defining "specific" as being "of a special, or particular, sort or
kind"); Webster's Ninth New Collegiate Dictionary 1132 (1989)
(defining "specific" as "sharing or being those properties of
something that allow it to be referred to a particular category").
Under the latter interpretation, of course, Gilday would need to
demonstrate an absence of authoritative decisions vindicating the
kinds of practices utilized under the MITS, without necessary
regard to the exact context in which the practices were applied,
thereby implicating any relevant authoritative decision addressing
the applicable wiretap statutes. Thus, under the latter
interpretation only unlawful MITS practices would be barred by the
19
Gilday injunction.
Ambiguities in an injunctive decree are construed in the
light most favorable to the alleged contemnor. See Kemp, 947 F.2d
at 16; NBA Properties, 895 F.2d at 32; see also United States v.
O'Quinn, 913 F.2d 221, 222 (5th Cir. 1990); In re Baldwin-United
Corp., 770 F.2d 328, 339 (2d Cir. 1985); New York Tel. Co. v.
Communication Workers of America, 445 F.2d 39, 48 (2d Cir. 1971);
Ford, 450 F.2d at 280; 11 C. Wright and A. Miller, Federal
Practice & Procedure: Civil S 2955, at 310 (1995 & Supp. 1996)
(same). For present purposes, therefore, the Gilday injunction
would be construed as banning only unlawful interceptions.
The litigation context underlying the Gilday consent
decree likewise commends the latter construction. See ITT
Continental Baking Co., 420 U.S. at 238 (construing ambiguous
consent-decree language in light of "circumstances surrounding
[its] formation . . ."); see also King, 668 F.2d at 607 (similar).
Throughout the district court action terminated by the consent
decree, the DOC defendants steadfastly denied "monitoring,"
The latter construction is strongly suggested by other
language in the Gilday consent decree itself, which explicitly
links its injunctive ban to the relevant federal and state wiretap
statutes, thereby indicating that the ban was not meant to prohibit
conduct lawful under the wiretap statutes themselves either
because the practice in question did not constitute an
"interception" or it constituted a lawful "interception" as
construed in authoritative decisions, extant or forthcoming. See
Armour & Co. , 402 U.S. at 678-80 (construing particular provisions
in light of other language in decree); Brewster v. Dukakis, 687
F.2d 495, 499 (1st Cir. 1982) (construing consent decree provision
in relation to other language in decree); United States v. City of
Miami, 2 F.3d 1497, 1507-08 (11th Cir. 1993) (construing "consent
decree as a whole").
20
"recording," or "intercepting" any wire communication involving
Gilday. Thus, implicit in the stance taken by Gilday now is the
suggestion that the DOC defendants impliedly conceded prior
violations of the relevant wiretap statutes simply by entering into
the stipulation of dismissal, whereas the record flatly contradicts
any such concession. Instead, the stipulation of dismissal
substantiates the view that the DOC defendants simply agreed to an
injunction which required their compliance with the applicable
federal and state law governing "interceptions."
Viewed in context, therefore, the Gilday consent decree
entailing no resolution of the central dispute as to whether the
DOC defendants ever "monitored" or "recorded," let alone "inter-
cepted," any Gilday wire communication is most harmoniously
construed as an agreement that the DOC defendants were to refrain
from any "interception" violative of either wiretap statute, as
The stipulation of dismissal stated:
By entering into this stipulation, these
[signatory] defendants do not admit, but rath-
er, generally deny that they have ever violat-
ed the plaintiff's rights under . . . the
federal wiretapping statute, 18 U.S.C. S 2150
et seq., [and] the state wiretapping statute,
M.G.L. c. 272, SS 99 et seq. . . . as alleged
by the plaintiff. The defendants specifically
deny that any of them, or anyone acting in
concert with any of them, ever intercepted or
monitored any of the plaintiff's wire communi-
cations by any means, lawful or unlawful . . .
.
See Settlement Stipulation: Claims Against Defendants Fair, Vose,
Hall and Callahan, Gilday v. Fair, et al., Civ. A. No. 74-4169-C
(emphasis added).
21
determined under either existing or future authoritative decisions.
That is to say, the Gilday consent decree bans only unlawful DOC
monitoring and recording practices. See Settlement Stipulation:
Claims Against Defendants Fair, Vose, Hall and Callahan, Gilday v.
Fair, et al., Civ. A. No. 74-4169-C, discussed supra pp. 20-21 &
n.12; see also supra pp. 3-4.
The suggested construction comports with the Langton
panel majority opinion as well, which held that the Langton injunc-
tion banned any "interception" absent "a specific court order or
legislative authorization to do so, except as specifically
permitted by these statutes, . . . as they have been construed in
reported decisions that are binding in this Court or in the state
courts of Massachusetts." Langton, 71 F.3d at 931 (emphasis
added). Thus, the Langton panel majority reasoned that the consent
decree was to be construed as requiring the DOC defendants to
refrain, in perpetuity, from contesting the meaning of the relevant
state and federal wiretap statutes "as construed in reported
decisions that [were] binding in [the federal district court] or in
the state courts of Massachusetts" at the time the Langton
injunction was entered, see id. at 931, 933-35, as distinguished
from merely requiring the DOC defendants to refrain from unlawful
interceptions. As the Langton panel majority viewed the matter,
any other approach threatened to render the terms of the Langton
injunction "illusory stating nothing beyond what was already
forbidden by law before the Permanent Injunction was entered." Id.
at 933 (emphasis added); but see id. at 940 (Boudin, J., dissent-
22
ing); see also supra pp. 13-14.
The panel majority relied as well on the final section in
the Langton injunction, which stated in terms similar to the Gilday
injunction, see supra p. 4, that the injunction "shall not of its
own force affect the rights of inmates of the Department other than
William Langton and David LeBlanc." See Langton, 71 F.3d at 933.
It reasoned that had the DOC promised merely to obey the law, no
purpose would have been served by the quoted provision. See id.
Once again, however, the two cases presented themselves
on appeal in materially different postures. First, as discussed
supra pp. 14-16, the repeated observation by the Langton panel
majority, see Langton, 71 F.3d at 933-37 that no then-existing
authoritative decision specifically permitted the challenged MITS
practices and that the Langton decree would be rendered meaningless
were it to be construed as a mere promise to obey the law is
inapposite to the instant context. That is, central to the present
analysis is the explicit language in the Gilday injunction ("or may
be construed in reported decisions"), see supra p. 4 (emphasis
added) nowhere to be found in the Langton injunction, see 71
F.3d at 931 which in no sense purports to prohibit either (i)
these parties from litigating open questions as to the meaning of
the applicable wiretap statutes, or (ii) our consideration of later
authoritative decisions upholding monitoring and recording
practices of the kind prescribed by the MITS, see infra pp. 45-48.
Second, since the settlement stipulation and the consent decree in
Gilday were entered into while the parties in Langton were still
23
litigating the initial action which led to the Langton injunction,
paragraph 3 in the Gilday injunction ( viz., "[t]his Permanent
Injunction . . . shall not . . . affect the rights of inmates other
than William Gilday[,]") served the discrete purpose of not
disturbing the rights of the Langton inmates whose initial action
against the DOC was to remain in litigation for two months after
the consent decree was entered in Gilday.
Accordingly, unlike the corresponding provision in the
Langton injunction, paragraph 3 in the Gilday injunction is
entirely consistent with the view that the Gilday injunction simply
contemplates that the DOC not violate the applicable wiretap
statutes. For these reasons we conclude, notwithstanding their
similarities, that the Gilday injunction is substantially less
restrictive in scope than the Langton injunction, in that it
unambiguously enjoins only unlawful recording and monitoring
practices by the DOC.
The Gilday injunction was entered on September 12, 1984; the
Langton injunction, on November 16, 1984.
It is noteworthy as well that the complaint in the action
which gave rise to the Gilday injunction alleged that Gilday "has
never consented, nor upon information and belief has any person
with whom he communicated consented, that wire communications to or
from him be intercepted or monitored in any way." Second Amended
Complaint, Gilday v. Webster, et al., No. 74-4169-C. The Gilday
complaint in the present action indicates that his concern in the
former action was not with all interceptions of his telephone
calls, however, but only with interceptions unlawful under the
applicable wiretap statutes because allegedly conducted without the
requisite consent. Thus, the more narrow concern reflected in the
present complaint comports with the view that the Gilday settlement
stipulation and consent decree were meant to ban only unlawful
interceptions.
24
A. The Massachusetts Wiretap Act
We must now consider whether Gilday demonstrated by
"clear and convincing evidence," Kemp, 947 F.2d at 16, that the
challenged MITS practices constitute unlawful interceptions under
the applicable wiretap statutes, beginning with the Massachusetts
Wiretap Act, bearing in mind that it was for Gilday to show that
the DOC defendants "violated a clear and unambiguous order that
left no reasonable doubt as to what behavior was to be expected"
and that the defendants were "'able to ascertain from the four
corners of the order precisely what acts are forbidden.'" Id. at
17 (quoting Drywall Tapers, 889 F.2d at 395). First, we inquire
whether the monitoring, recording, and call "detailing" practices
prescribed by the MITS Regulations are "interceptions" under the
Massachusetts Wiretap Act, Mass. Gen. L. ch. 272, S 99(B)(4).
Second, should Gilday successfully surmount the first hurdle, we
determine whether any such interpretation is nevertheless permitted
under any authoritative decision binding on the federal district
court. Finally, we conclude that Gilday failed to prove either
that the monitoring and recording practices conducted pursuant to
the MITS constitute "interceptions" under the Massachusetts Wiretap
Act, or that the MITS call "detailing" practices were clearly
prohibited under the Gilday injunction.
1. Monitoring and Recording
We begin by noting that the Gilday injunction prohibits
only "interceptions" under the applicable statutes and not call
monitoring, recording, or "detailing" per se. The term "intercep-
25
tion," as used in the Massachusetts Wiretap Act, "means to secretly
hear, secretly record, or aid another to secretly hear or secretly
record, the contents of any wire or oral communication through the
use of any intercepting device . . . ." Mass. Gen. L. ch. 272, S
99(B)(4) (emphasis added).
The Massachusetts courts have interpreted this "secrecy"
requirement literally. See Commonwealth v. Jackson, 349 N.E.2d
337, 339-40 (Mass. 1976) (holding that secrecy is essential to
establishing a violation of Massachusetts Wiretap Act); see also
District Attorney v. New England Tel. & Tel. Co., 399 N.E.2d 866,
869 (Mass. 1980) (stating that secret recordation of incoming calls
violates Massachusetts Wiretap Act). A secretive interception
occurs under the Massachusetts Wiretap Act unless both parties to
a wire "communication" had "actual knowledge" of the
"interception," see, e.g., Jackson, 349 N.E.2d at 340, which may be
established by evidence that the parties were informed that their
conversation was being intercepted, or by "clear and unequivocal
objective manifestations of knowledge . . . sufficiently probative
of a person's state of mind as to allow an inference of knowledge."
Id.
As the district court correctly concluded, the recording
and monitoring practices at issue here were in no sense
surreptitious. Inmates are informed in advance, both by the MITS
Regulations a matter of public record and the individualized
PIN Request Form advisory as well, that their MITS calls will be
monitored and recorded. Moreover, inmates are reminded by stickers
26
affixed to each phone that all non-attorney calls are subject to
the monitoring and recording practices prescribed by the MITS
Regulations. Finally, a prerecorded message informs both parties
before the parties can communicate that all call "contents"
will be recorded.
Against this backdrop, the Massachusetts Supreme Judicial
Court ("SJC") has decided that even inmates who "have not consented
to the [MITS] monitoring and recording" such as Gilday
nonetheless have been "made aware of the procedure and its require-
ments." Cacicio v. Secretary of Public Safety, 665 N.E.2d 85, 91
(Mass. 1996) (rejecting constitutional challenge to MITS
Regulations). Therefore, the SJC held, "[t]he [MITS] monitoring
and recording is not surreptitious in any sense." Id.
Accordingly, we now hold that whatever recording and
monitoring of oral communications takes place under the MITS regime
does not constitute an "interception" under the Massachusetts
Wiretap Act, as it is not secretly conducted. See Jackson, 349
N.E.2d at 339 (non-secret recordings not "interceptions" under
Massachusetts Wiretap Act).
2. Call "Detailing"
The Massachusetts Wiretap Act defines the term
"interception" as a secret acquisition of "the contents of any wire
The SJC did not differentiate between recording of contents
and recording of billing-related features ( i.e., "detailing").
Instead, Cacicio simply described the prerecorded message as notice
to the inmate and the person called that the call would be recorded
in its entirety. See Cacicio, 665 N.E.2d at 88.
27
or oral communication through the use of any intercepting device .
. . ." Mass. Gen. L. ch. 272, S 99(B)(4) (emphasis added).
Elsewhere the statute explicitly excepts certain telephone
equipment from its definition of "intercepting device":
The term "intercepting device" means any
device or apparatus which is capable of . . .
recording a wire or oral communication . . .
other than any telephone or telegraph
instrument, equipment, facility, or a
component thereof . . . being used by a
communications common carrier in the ordinary
course of its business.
Mass. Gen. L. ch. 272, S 99(B)(3)(b). Thus, no "interception"
occurs under the Massachusetts Wiretap Act if the device used to
acquire the contents of a wire communication comes within the ambit
of the "telephone equipment" exception.
The MITS employs a sophisticated network of computers and
associated telephone equipment, including "controller boards"
electronic call processing devices attached to each prison
telephone supplied, installed, and maintained by NET. The NET
equipment automatically screens approved outside telephone numbers
from unapproved numbers, routes inmate calls to approved telephone
numbers outside the prison, plays the prerecorded message to both
parties, and identifies calls placed to listed attorneys so as to
The SJC has held that a device which records information
relating to the identity of the parties to a call or the existence
of a wire communication, records the "contents of [a] wire . . .
communication." District Attorney for Plymouth Dist. v. New
England Tel. & Tel. Co., 399 N.E.2d 866 (Mass. 1980), discussed
infra pp. 33-35.
NET procures the telephone equipment from AT&T and Telematic
Corporation under various subcontracts.
28
preclude their monitoring and recordation. All call "detail" is
recorded automatically by the NET telephone equipment in order to
generate billing reports and safeguard the NET equipment against
fraudulent use by inmates ( i.e., inter alia, unapproved long
distance and collect calls).
The monthly revenue statements NET provides under its
contract with the DOC reflect "detail" on all inmate calls placed,
including the number dialed, the length of the call, and other
billing-related and revenue-related information. In addition, the
NET site administrator at each prison facility regularly generates
a so-called "Fraud Report," listing all outside telephone numbers
to which the total number of calls placed by inmates within the
reporting period exceeded a specified level. The Fraud Report is
forwarded to NET and the DOC for use in investigating fraudulent
telephone usage.
The MITS is similar to the telephone systems utilized by the
Bureau of Prisons, as well as in certain state prisons such as New
York and Tennessee. See Bender Aff. q 6. However, the MITS
utilizes devices far more sophisticated than the "in-house" devices
generally considered by this court or the Massachusetts courts.
See, e.g., Williams v. Poulos, 11 F.3d 271, 275-76 (1st Cir. 1993)
(involving "custom made" system consisting of "small alligator
clips" and a VCR attached to a microphone cable); Griggs-Ryan v.
Smith, 904 F.2d 112, 114 (1st Cir. 1990) (involving recording
device attached by landlady to extension telephone); Jackson, 349
N.E.2d at 338 (involving cassette recorder microphone attached to
earpiece in telephone receiver).
Among the abuses the MITS is designed to stop are so-called
"third-party" calls placed by inmates to large outside
establishments through which the inmate can request another outside
line, then place a long-distance call at the expense of the
establishment whose number the inmate called in the first instance.
See, e.g., supra note 4.
29
Within the above-described evidentiary framework, we now
inquire whether the MITS call "detailing" conducted by NET is
excepted from the Massachusetts Wiretap Act definition of
"intercepting device" in S 99(B)(3)(b). See supra pp. 28-29.
First, we note that NET is a "communication common carrier" within
the contemplation of S 99(B)(3). See District Attorney For
Plymouth Dist. v. Coffey, 434 N.E.2d 1276, 1280 (Mass. 1982).
Second, Gilday does not contend that the processor computers and
controller boards used by NET for billing-related purposes are not
"equipment . . . being used in the ordinary course of [NET's]
business." See Reply Brief for the Plaintiff, Appellant at 6 n.8
("Gilday does not argue that NET is precluded from using call
detail for billing purposes."). Nor does any authoritative
decision suggest that a communication common carrier which
"details" calls in order to generate billing reports or protect its
equipment from fraudulent abuse, does not do so in the ordinary
course of its business. Thus, Gilday has not demonstrated by
"clear and convincing" evidence, see Kemp, 947 F.2d at 16, that any
We have construed the Federal Wiretap Act, which the
Massachusetts statute tracked, see Commonwealth v. Vitello, 327
N.E.2d 819, 836 (1975), as conferring a "statutory right" upon a
communication common carrier to intercept wire communications in
order to protect its rights and property interests. United States
v. Pervaz, --- F.3d ---, ---, 1997 WL 336208, *5 (1st Cir.) (R.I.)
(construing 18 U.S.C. S 2511(2)(a)(i), which permits an employee of
a wire communication services provider whose facilities are used in
transmission of wire or electronic communication, "to intercept,
disclose, or use that communication in the normal course of his
employment while engaged in any activity which is a necessary
incident to the rendition of his service or to the protection of
the rights or property of the provider of that service").
30
call "detailing" conducted by NET for its own billing-related
purposes falls outside the S 99(B)(3)(b) exception for equipment
used by it "in the ordinary course of its business." Accordingly,
no "interception" occurs under the Massachusetts Wiretap Act, at
least by reason of the billing-related "detailing" conducted by
NET.
Gilday nonetheless insists, however, that the injunction
precludes the DOC defendants from acquiring access to any call
"detail" information and that NET therefore may not aid and abet
the DOC by affording access. See Reply Brief for Plaintiff,
Appellant at 6 n.8. Under the Regulations and the MITS "Procedural
Statement" a DOC operations guideline which supplements the MITS
Regulations authorized DOC officers may request both "standard"
and "custom" call "detail" reports from NET personnel for
investigative purposes, or, after receiving training from NET
personnel, print out such call "detail" reports themselves.
Moreover, these "standard" reports may, at the DOC's option, be
configured to provide call "detail" relating to an individual
inmate's PIN, a particular group of inmate PINs, specific prison
telephones used to place calls, or particular telephone numbers
dialed. Finally, since the record discloses no limitation on the
domain reserved for the so-called "custom" reports, we assume, at
Although the record is unclear as to what, if any, role AT&T
as NET's subcontractor performs in call "detailing," our
analysis of the NET role in call "detailing," supra pp. 27-30,
appears equally applicable to AT&T, which is a communication common
carrier as well. See Mass. Gen. L. ch. 272, S 99(B)(3)(b).
31
the summary judgment stage, see Velez-Gomez, 8 F.3d at 874-75, that
NET is obligated to provide the DOC with any and all call "detail"
requested. Notwithstanding its advantageous summary judgment
posture, however, the Gilday call "detailing" claim fails in
relation to the DOC defendants as well.
Gilday claims that the DOC violates the injunctive ban
against "intercepting" or "endeavoring to intercept" his wire
communications, see supra pp. 3-4, simply by applying the MITS
requirements to him; in particular, by making his consent a
prerequisite to utilizing the MITS. The claim is premised on
several rationales: first, the MITS requirements cannot be applied
to him, since the Gilday injunction bans all "interceptions" of his
calls, absent a relevant court order, legislative authorization, or
authoritative decision specifically permitting the challenged MITS
practices in their prison context; second, since he has never
consented to the MITS regime, DOC call "detailing" cannot meet the
"two party consent exception" under Mass. Gen. L. ch. 272, S
99(B)(4), even assuming consent by the party called; and third,
even assuming he were found to have given implicit consent by
utilizing the MITS, the injunctive ban on "interceptions" is
infringed by DOC call "detailing," because it secretly records the
outside number dialed by the inmate before the other party can
Section 99(B)(4) provides, in pertinent part, that the "term
interception means to secretly hear, secretly record, or aid
another to secretly hear or secretly record the contents of any
wire or oral communication . . . by any person other than a person
given prior authority by all parties to such communication." Mass.
Gen. L. ch. 272, S 99(B)(4).
32
consent; for example, should the outside phone not be answered.
All these contentions likewise fail.
As with monitoring and recording, see supra pp. 25-27,
virtually all call "detailing" conducted under the MITS regime is
thoroughly advertised. In addition to the MITS Regulations, the
"Number Request Form" itself discloses that all inmate calls are
subject to call "detailing." Moreover, the recorded message heard
both by the inmate and the call recipient advises that their entire
conversation and all "call detail" will be recorded. Thus,
whatever "detailing" occurs after the call recipient is so advised
by the recorded message comports with the Massachusetts Wiretap
Act, as both parties have been fully informed in advance that their
entire oral communication, as well as all "call detail," will be
recorded. See Jackson, 349 N.E.2d at 339 (non-secret recordings
not "interceptions" under Massachusetts Wiretap Act).
At summary judgment, however, Gilday proffered unrebutted
evidence that the outside number dialed by the inmate is recorded
before the call is answered; in other words, before the prerecorded
message announcing the MITS monitoring/recording regime has been
heard by the party who answers the call. Thus, the number called
by the inmate will have been subjected to call "detailing," whether
or not the party called answers the phone or withholds "consent" to
the MITS recording and call "detailing" procedure subsequently
announced in the prerecorded message. Gilday therefore contends
On appeal, AT&T vigorously disputes that any such "secret"
call detailing occurs in these circumstances. Nevertheless, none
33
that defendants violate the injunction by "endeavoring" to record
call "detail" during the interim between the dialing of the outside
number by the inmate and before the call can be answered and
accepted what we shall refer to as "interim call detailing."
Gilday relies heavily on a line of SJC decisions, see,
e.g., District Attorney for Plymouth Dist. v. New England Tel. &
Tel. Co., 399 N.E.2d 866 (Mass. 1980), treating with "pen
registers" and "call traps," telephone equipment consisting of
electronic devices which surreptitiously record, respectively, the
number called or the number from which an incoming call was placed.
These authoritative decisions hold that such electronic devices do
record call "contents," within the meaning of the Massachusetts
Wiretap Act, since they acquire "'information concerning the
identity of the parties to such communication or the existence . .
. of that communication.'" Id. at 869 (quoting Mass. Gen. L. ch.
272, S 99(B)(5)). Thus, "[e]ven if the call is not completed, the
caller has initiated a wire communication . . . which is intended
to cause . . . [the call recipient's] telephone to ring and the
existence of that communication is recorded by an intercepting
of the defendants challenged Gilday's proffer in their opposition
to summary judgment, as required by Mass. D. Ct. Local Rule 56:
Material facts of record set forth in the
statement required to be served by the moving
party will be deemed for purposes of the
motion to be admitted by opposing parties
unless controverted by the statement required
to be served by opposing parties.
Consequently, we credit Gilday's assertion for summary judgment
purposes. See Carreiro v. Rhodes Gill & Co., Ltd., 68 F.3d 1443,
1446 & n.3 (1st Cir. 1995).
34
device." Id. Be this as it may, however, it gains Gilday nothing.
First of all, it is important to note that the SJC's
definition of "wire communication," see id., would not encompass an
attempt by an inmate to call a number not on the preapproved MITS
list, since the MITS regime automatically prevents such calls from
getting past its "host processors," the computers which control the
outflow of inmate calls from the prison. Consequently, inmate
attempts to dial numbers not approved under the MITS regime cannot
cause an outside telephone to ring, because the call cannot be
connected to the point of reception. Accordingly, there can have
been no "wire communication," which is defined as "any
communication . . . by the aid of wire, cable or other like
connection between the point of origin and the point of reception."
Mass. Gen. L. ch. 272, S 99(B)(1). (Emphasis added.) Second,
should an inmate initiate a call through the MITS regime, he will
already have completed the "Number Request Form," thereby divulging
in advance to the DOC the very entity which previously
advertised its intention to monitor and record all outgoing inmate
calls to nonattorneys both the telephone number and the name and
relationship of the family member or friend to whom the call is
directed. See supra p. 6. Third, no reported Massachusetts
decision has ever involved sufficiently similar circumstances so as
to constitute an authoritative decision that call "detailing" in
the present context is unlawful. Cf., e.g., Jackson, 349 N.E.2d at
338-40 (discussing residential telephone subscriber's interceptions
of incoming calls to ascertain calling number and identity of
35
unknown caller); District Attorney For Plymouth Dist., 399 N.E.2d
at 867, 869-70 (discussing judicial power to compel telephone
company, pursuant to warrant, to assist installation of cross-
frame-unit trap on particular telephone line in order to record
telephone numbers from which incoming calls were made in
circumstances where callers' numbers and identities had not already
been divulged by callers in advance); New England Tel. & Tel. Co.
v. District Attorney For Norfolk Dist. , 373 N.E.2d 960, 962 (Mass.
1978) (discussing judicial power to order telephone company to
assist installation of pen register to determine telephone numbers
dialed from particular phone); District Attorney For Plymouth Dist.
v. Coffey, 434 N.E.2d 1276, 1278 (Mass. 1982) (discussing
warrantless interception by telephone company of calls to
residential line to ascertain previously unknown telephone numbers
from which incoming, harassing telephone calls were being made).
Furthermore, Gilday has never alleged an intention to
call a telephone number or party not listed by him on the required
MITS "Number Request Form," see supra p. 6, even assuming he were
to elect to utilize the MITS. Instead, since there can be no
secretive acquisition of information already provided to the DOC,
see supra pp. 25-27 (noting that "secretive" interceptions presume
lack of knowledge), Gilday simply assumes, sub silentio, that any
putative number(s) and person(s) he might call would not already
In another case, the SJC declined to address a claim that the
MITS violates the Massachusetts Wiretap Act, as it had not been
raised below. See Cacicio, 665 N.E.2d at 89 n.9.
36
have been known to the DOC before the call was placed. Absent
evidence on this critical point, however, there can have been no
prima facie showing that any surreptitious or secretive
"interception" would occur, let alone did occur, within the meaning
of the Massachusetts Wiretap Act. See Jackson, 349 N.E.2d at 340
(holding that a secretive "interception" has occurred unless both
parties to the call had "actual knowledge" of the intrusion). In
all events, as noted above, see supra pp. 34-35, were Gilday to
continue to withhold consent but attempt to place a call or
consent, yet attempt to call a number not previously approved by
the DOC the MITS computers would screen out the attempted call.
Thus, under Massachusetts law, no "wire communication" could occur.
See Mass. Gen. L. ch. 272, S 99(B)(1) (defining "wire
communication" as any "connection between the point of origin and
the point of reception") (emphasis added); see also District
Attorney for Plymouth Dist. v. New England Tel. & Tel. Co., 399
N.E.2d 866, 869 (Mass. 1980).
Although Gilday argues on appeal that interim call
"detailing" would violate the Massachusetts Wiretap Act because it
would record inmate attempts to call telephone numbers not listed
on their respective Number Request Forms i.e., that MITS call
"detailing" takes place even though the inmate calls a party not on
the Number Request Form, hence not already known to the DOC he
has never alleged an intention to make such calls i.e., to
circumvent the requirements of the MITS even assuming he were to
participate in it. Thus, the present attempt to hypothesize an
abstract interim call "detailing" violation raises no justiciable
case or controversy, as the injunction simply prohibits the DOC
from intercepting or endeavoring to intercept any wire
communication by Gilday. See Pacific Gas & Elec. Co. v. State
Energy Resources Conservation and Dev. Comm'n, 461 U.S. 190, 203
(1983) (declining on Article III ripeness grounds to consider
constitutionality of California law allowing State to block
37
In conclusion, any attempt to dial a number not
previously disclosed by an inmate on the Number Request Form: (i)
results in no "wire communication" to the person called, as it
cannot proceed beyond the prison, see supra p. 34-35; and (ii)
voluntarily discloses to the DOC the number called, without any
"wire communication" having taken place. Thus, interim call
"detailing" under the MITS regime is neither "secretive" within the
meaning of the Massachusetts Wiretap Act, nor an "interception"
within the scope of the Gilday injunction. Accordingly, the
district court supportably determined that the challenged MITS
practices did not violate the Massachusetts-law component in the
Gilday injunction.
Moreover, there is no basis for the conclusory contention
that the Gilday injunction is violated simply by the MITS
regulatory requirement that he, like any other inmate, consent to
the MITS regime, including call "detailing," as a prerequisite to
utilizing the MITS hence, that the consent requirement
constitutes a coercive endeavor to intercept Gilday's wire
communications in violation of the injunction. See supra pp. 31-
32. First, its unstated premise that Gilday is entitled to utilize
prison phones even though he withholds consent is groundless. As
a prison inmate, Gilday can identify no federal or state right
construction of nuclear power plants lacking adequate storage
capacity for spent nuclear fuel, because the Court "cannot know" if
State "will ever find a nuclear plant's storage capacity to be
inadequate"); Lincoln House, Inc. v. Dupre, 903 F.2d 845, 847-48
(1st Cir. 1990) (refusing on Article III ripeness grounds to
address claim based on abstract injury "that may not occur as
anticipated or may not occur at all").
38
constitutional or otherwise to utilize a prison phone on his own
terms. See, e.g., Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir.
1994) (stating that "a prisoner's right to telephone access is
'subject to rational limitations in the face of legitimate security
interests of the penal institution'") (quoting Strandberg v. City
of Helena, 791 F.2d 741, 747 (9th Cir. 1986))); see also Feely v.
Sampson, 570 F.2d 364, 374 (1st Cir. 1978) (stating that the right
of pretrial detainees to make telephone calls, while "not free from
doubt[,]" is subject to reasonable restrictions); Cacicio, 665
N.E.2d at 92 (upholding MITS limitations on inmate telephone access
as constitutional, and citing Bellamy v. McMickens, 692 F.Supp.
205, 214 (S.D.N.Y. 1988), for the proposition that prisoners have
no right to unrestricted telephone use). Second, the Gilday
injunction does not purport to ban call "detailing" lawfully
conducted under federal and state law. See supra pps. 3-4, 20-25.
And since MITS call "detailing" cannot occur absent inmate consent
a prerequisite to access to the MITS, see supra pp. 6-7 the
very least that can be said is that there is no clearly-defined,
see Kemp, 947 F.2d at 17, "interception" under either federal or
state law, see supra pp. 34-37; infra pp. 45-48. Third, the verb
"endeavor," meaning "to work with set purpose," or "make an effort"
to accomplish a particular purpose, see Webster's Third New
International Dictionary 748 (1986) here, allegedly, to conduct
unlawful interceptions of Gilday's wire communications cannot
bear the weight he places on it. Given the uncontroverted evidence
that extensive inmate fraud and criminal activity necessitated the
39
MITS, see supra p. 4, Gilday cannot demonstrate that the
establishment of the MITS universally available exclusively to
inmates who consent to its terms ( including Gilday, should he elect
to participate) constituted an "endeavor" to "detail" Gilday's
telephone calls unlawfully, and thus constituted a clear violation
of the Gilday injunction, see Kemp, 947 F.2d at 17.
Once again we emphasize the obvious simply because it is
so consistently elided by Gilday, both below and on appeal: The
Gilday injunction grants Gilday no right or privilege to place any
telephone call, nor has Gilday cited any authoritative decision
indicating that conditioning prison-telephone utilization on
informed prisoner consent to reasonable prison-security safeguards
violates a federal or state right. See Langton, 71 F.3d at 936
(stating: "at the least, grounds exist for genuine dispute" about
whether DOC "defendants are authorized by law" to require prisoner
consent to MITS regime) (citing Griggs-Ryan v. Smith, 904 F.2d 112
(1st Cir. 1990) (holding that "implied consent" is inferred from
circumstances indicating that party knowingly agreed to
surveillance)); see also Washington, 35 F.3d at 1100 (prison may
impose rational limits on inmate telephone access, including
subjecting inmates to MITS-type system); Strandberg, 791 F.2d at
747 (prisoner's right to telephone access subject to reasonable
restrictions); Feely, 570 F.2d at 374 (right of pretrial detainees
to place telephone calls is subject to reasonable restrictions);
Cacicio, 665 N.E.2d at 90 (upholding MITS as reasonable security
measure). But cf. United States v. Cheely, 814 F.Supp. 1430, 1443-
40
44 (D. Alaska 1992) (rejecting argument that prison may deem
consent implied in situations where inmate must consent to terms in
order to place calls, but finding surveillance of prison phones "a
necessary price for prison security"), aff'd, 36 F.3d 1439 (9th
Cir. 1994).
In sum, the Gilday injunction does not purport to entitle
Gilday to utilize the MITS without acceding to lawful restrictions
founded upon reasonable prison-security measures. Furthermore,
inmates who voluntarily withhold their consent retain their
constitutional right to communicate with their attorneys (and with
family and friends) through prison visitations and the mail. Thus,
it is unfounded supposition to suggest that the DOC has
"endeavored" to do anything other than afford inmates the
opportunity to utilize the MITS, subject to reasonable restrictions
designed to preclude fraud, crime, and misuse of the prison
telephone system. Accordingly, the claim that the DOC is
"endeavoring" to "detail" Gilday's telephone calls in violation of
the Gilday injunction fails.
We note that the Gilday call "detailing" contention is
problematic in another important respect, since Mass. Gen. L. ch.
272, S 99(B)(3)(a), excepts from its definition of the term
"intercepting device" any device or apparatus "furnished to a
subscriber or user by a communications common carrier in the
ordinary course of its business under its tariff and being used by
the subscriber or user in the ordinary course of its business."
The SJC has indicated that institutional efforts to ensure security
constitute activities in the "ordinary course of business" for S
99(B)(3)(a) purposes. See Crosland v. Horgan, 516 N.E.2d 147, 150
(Mass. 1987) (stating that preservation of security may be viewed
as within hospital's "ordinary course of business"). Similarly,
the SJC has stated that maintenance of security is "an essential
incident to the business of a prison." Id. (dicta) (describing
41
Finally, even assuming, arguendo, that Gilday were to
overcome all other hurdles, in fine his call "detailing" claim
engenders substantial justiciability concerns not addressed by the
parties. Article III, section 2, of the United States Constitution
confines federal court jurisdiction to actual "cases" and
"controversies." U.S. Const. art. III, S 2. Article III was
designed to ensure that federal courts decide only disputes of "a
Judiciary nature," M. Farrand, 2 Records of the Federal Convention
of 1787, at 430 (1911), thereby prohibiting advisory opinions,
Flast v. Cohen, 392 U.S. 83, 96 (1968). In order to satisfy the
"case or controversy" requirement, the plaintiff must demonstrate
"'a personal stake in the outcome[,]'" City of Los Angeles v.
Lyons, 461 U.S. 95, 101 (1983) (quoting Baker v. Carr, 369 U.S.
186, 204 (1962)), and the complaint must present a controversy
neither "conjectural [n]or hypothetical," but both "real and
immediate," see id. at 102, without regard to the type of relief
purport of Campiti v. Walonis, 453 F.Supp. 819, 822 (D.Mass. 1978),
aff'd, 611 F.2d 387 (1st Cir. 1979)). Perhaps most significantly,
in response to a constitutional challenge the SJC has held that the
MITS serves "the legitimate purpose of improving the security of
the Massachusetts correctional system" by acting as a "deterrent
against improper use" of prison telephones. Cacicio, 665 N.E.2d at
90.
Thus, it can be concluded, with considerable confidence in our
judgment, that the issue as to whether corrections officials may
intercept MITS calls in the "ordinary course of [prison] business,"
under the protection of S 99(B)(3)(a), is at the very least
reasonably debatable, and, therefore, that Gilday's contention
comes a cropper. See Kemp, 947 F.2d at 17 (stating that injunction
must leave "no reasonable doubt" what conduct is prohibited); see
also Langton, 71 F.3d at 936 (finding "reasonably debatable" the
issue as to whether MITS monitoring comes within the "ordinary
course of business of a law enforcement officer" as defined by
Federal Wiretap Act).
42
sought, see Skelly Oil v. Phillips Petroleum Co. , 339 U.S. 667, 671
(1950).
Among the showings required under the "case or
controversy" requirement is "ripeness," which governs when a proper
party may bring a justiciable action consistent with Article III.
See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580
(1985) ("'[R]ipeness is peculiarly a question of timing.'")
(quoting Regional Rail Reorganization Act Cases , 419 U.S. 102, 140
(1974)). The basic rationale underlying the ripeness doctrine is
"to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements
over administrative policies and also to protect the agencies from
judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the
challenging parties." Abbott Laboratories v. Gardner, 387 U.S.
136, 148-49 (1967); Pacific Gas & Elec. Co. v. State Energy
Resources Conservation and Dev. Comm'n, 461 U.S. 190, 200 (1983)
(same). The ripeness determination thus turns on "'the fitness of
the issues for judicial decision' and 'the hardship to the parties
of withholding court consideration.'" Id. at 201 (quoting Abbott
Lab., 387 U.S. at 149); Lincoln House, Inc. v. Dupre, 903 F.2d 845,
847 (1st Cir. 1990) (same). As we have explained, "[p]erhaps the
most important consideration in determining whether a claim is ripe
for adjudication is the extent to which 'the claim involves
uncertain and contingent events that may not occur as anticipated,
or indeed may not occur at all.'" Id. (quoting 13A Wright and
43
Miller, Federal Practice and Procedure S 3532.2, at 141 (1984)).
See also Metzenbaum v. Federal Energy Regulatory Comm'n, 675 F.2d
1282, 1289-90 (D.C. Cir. 1982); A/S Ludwig Mowinckles Rederi v.
Tidewater Construction Corp., 559 F.2d 928, 932 (2d Cir. 1977).
As Gilday has never utilized the MITS regime, there can
have been no call "detailing" of any Gilday "wire communication."
Accordingly, no Gilday wire communication could have been subjected
to "interception" by NET, ATT or the DOC; consequently, there can
have been no "endeavoring to intercept." Moreover, as Gilday gives
no indication that he intends to consent, any DOC "detailing" of a
potential wire communication remains entirely hypothetical. Nor
can it simply be presumed that the DOC will "detail" unlawfully any
call to which Gilday might be a party in the future, nor even that
he would dial a number which might prompt a call "detail" report.
See Pacific Gas & Elec. Co., 461 U.S. at 200. Thus, the call
"detailing" claim, in fine, "'involves uncertain and contingent
events that may not occur as anticipated, or indeed may not occur
at all.'" Lincoln House, 903 F.2d at 847 (quoting 13A Wright and
Miller, Federal Practice and Procedure S 3532.2, at 141 (1984)).
For the foregoing reasons, we conclude that the claims
premised on the Massachusetts Wiretap Act are unavailing.
B. Title III
Although the Federal Wiretap Act (Title III, Omnibus
Crime Control and Safe Streets Act, 18 U.S.C. SS 2510 et seq.
("Title III")) generally forbids "interceptions" of wire communica-
tions absent prior judicial authorization, it expressly provides
44
that "[i]t shall not be unlawful . . . for a person acting under
color of law to intercept a wire, oral, or electronic communication
where . . . one of the parties to the communication has given prior
consent to such interception." 18 U.S.C. S 2511(2)(c). (Emphasis
added.) The "consent" exemption under Title III is "'construed
broadly'" as encompassing implied consent. Griggs-Ryan v. Smith,
904 F.2d 112, 116 (1st Cir. 1990) (quoting United States v. Amen,
831 F.2d 373, 378 (2d Cir. 1987)); see also United States v.
Workman, 80 F.3d 688, 693-94 (2d Cir.) (same), cert. denied, 117 S.
Ct. 319 (1996); S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted
in 1968 U.S.C.C.A.N. 2112, 2182 (same).
Under the MITS regime, the following prerecorded message
is heard by both parties immediately after the recipient responds
to an inmate call and before the parties can communicate:
NYNEX [or AT&T for long distance
calls] has a collect call from [name
of inmate], an inmate at the [name
of correctional facility]. To re-
fuse this call, hang up. If you use
three-way calling or call waiting,
you will be disconnected. All call
detail and conversation, excluding
approved attorney calls, will be
recorded. To accept this call, dial
"1" now.
(Emphasis added.) Thus, upon dialing "1" the party reached at the
number dialed by the inmate consents to the MITS regime prior to
any communication with the inmate.
Although Gilday points out that he has never consented
either explicitly or implicitly to the MITS regime, the federal
wiretap statute as well as relevant authoritative decisions
45
indicate that the requisite consent under the Federal Wiretap Act
may be provided by either party. See 18 U.S.C. S 2511(2)(c) (no
impermissible "interception" where "one of the parties to the
communication has given prior consent to such interception"); see
also United States v. McDowell, 918 F.2d 1004, 1006 (1st Cir. 1990)
(finding no Title III bar to telephone interceptions based on
unilateral consent); United States v. Pratt, 913 F.2d 982, 986-87
(1st Cir. 1990) (finding unilateral consent adequate to permit
interception under federal law). Thus, MITS call "detailing" and
recording does not offend Title III.
Moreover, it is settled law in the First Circuit and
elsewhere that "Title III affords safe harbor not only for persons
Call "detailing," moreover, is not within the ambit of the
Federal Wiretap Act, as it simply captures electronic signals
relating to the PIN of the caller, the number called, and the date,
time and length of the call. See 103 C.M.R. S 482.06(1). The
Federal Wiretap Act defines "interception" as an "aural or other
acquisition of the contents of any wire, electronic, or oral
communication through the use of any electronic, mechanical or
other device." 18 U.S.C. S 2510(4) (emphasis added). Subsection
2510(8) in turn defines "contents" as "any information concerning
the substance, purport, or meaning of [the] . . . communication."
Id. S 2510(8).
The United States Supreme Court, in an analogous context, has
held that "pen registers" devices which can record any number
dialed from a particular telephone do not violate the Federal
Wiretap Act "because they do not acquire the contents of communica-
tions as that term is defined by 18 U.S.C. S 2510(8)." United
States v. New York Tel. Co. , 434 U.S. 159, 167 (1977). Similarly,
the SJC has held that pen registers "are not governed by Title III,
since there is no 'aural acquisition' of anything." District
Attorney For Norfolk District, 373 N.E.2d at 962. The legislative
history of the 1986 Amendments to the Federal Wiretap Act likewise
indicates that Congress intended to exclude call "detailing"
devices. See S.Rep. No. 99-541, 99th Cong., 2nd Sess., reprinted
in 1986 U.S.C.C.A.N. 3555 (stating that devices which record
electronic data "capture no part" of the contents of "an actual
telephone conversation").
46
who intercept calls with the explicit consent of a conversant but
also for those who do so after receiving implied consent." Griggs-
Ryan, 904 F.2d at 116; see also Williams v. Poulos, 11 F.3d 271,
281 (1st Cir. 1993) (same). Accord United States v. Van Poyck , 77
F.3d 285, 292 (9th Cir.), cert. denied, 117 S. Ct. 276 (1996);
United States v. Horr, 963 F.2d 1124, 1126 (8th Cir. 1992); United
States v. Willoughby, 860 F.2d 15, 19 (2d Cir. 1988) (citing Amen,
831 F.2d at 378); Watkins v. L.M. Berry & Co., 704 F.2d 577, 581
(11th Cir. 1983). Implied consent may be "inferred from . . .
language or acts which tend to prove . . . that a party knows of,
or assents to, encroachments on the routine expectation that
conversations are private." Griggs-Ryan, 904 F.2d at 116-17
(internal citations and quotations omitted). Thus, "a reviewing
court must inquire into the dimensions of the consent and then
ascertain whether the interception exceeded those boundaries." Id.
at 119 (emphasis added).
The prerecorded MITS message explicitly advises that
"[a]ll call detail and conversation, excluding approved attorney
calls, will be recorded," see supra p. 45 (emphasis added), thereby
informing the call recipient that the entire "contents" will be
intercepted. Consequently, notwithstanding the absence of explicit
notice of the lesser intrusion represented by possible monitoring
of call content, the recipient is fully informed of the greater
The MITS regime permits random monitoring, as well as
particularized investigative monitoring the latter based on
suspected criminal activity.
47
intrusion; viz., that the entire conversation, as well as all call
"detail," will be intercepted and recorded. See id.; see also
Williams, 11 F.3d at 281-82 (discussing elements of implied
consent). Thus, since the MITS records the entire conversation,
any concurrent aural monitoring by authorized DOC officials in no
sense exceeds the dimensions of the broad implied consent given to
record all call "content," including call "detail." See Griggs-
Ryan, 904 F.2d at 114, 116-19 (finding implied consent to
interceptions, consisting of concurrent aural monitoring and
recording of telephone conversations, after plaintiff had been
informed of the recording only and no restrictions had been placed
on the scope of the interceptions); see also Williams, 11 F.3d at
282 (stating that implied consent obtains where party to conversa-
tion was provided with at least "minimal knowledge" of scope of
interception). Therefore, based on the relevant authoritative
decisions, it is at the very least an open question whether the
express prior consent provided by MITS-call recipients to the
recordation of all call "content" constitutes implied consent to
monitoring.
Finally, as this is a civil contempt proceeding it was
for Gilday to prove that the DOC defendants "violated a clear and
unambiguous order that left no reasonable doubt as to what behavior
Although it has been held outside the prison context
that mere "knowledge of the capability of monitoring alone cannot
be considered implied consent," Watkins, 704 F.2d at 581 (emphasis
in original), under the MITS the recipient of the call is informed
that the entire call will be recorded.
48
was to be expected" and that the DOC was "'able to ascertain from
the four corners of the order precisely what acts . . . [were]
forbidden.'" Kemp, 947 F.2d at 17 (quoting Drywall Tapers, 889
F.2d at 395). Since the Gilday injunction bans only unlawful
practices by the DOC defendants, see supra pp. 20-22 and
authoritative decisions supportably indicate at the very least
that the challenged MITS practices constitute lawful monitoring,
Gilday has not demonstrated a "clear and unambiguous" violation of
Title III. Accordingly, the district court correctly concluded
that Gilday failed to establish a violation of the Gilday
injunction, either by the DOC or by its putative aiders and
abettors, NET and AT&T.
C. The Section 1983 Claims
In a civil rights action under 42 U.S.C. S 1983, the
Various federal decisions have upheld similar prison
monitoring and recording practices under the Federal Wiretap Act.
See, e.g., Horr, 963 F.2d at 1126; United States v. Sababu, 891
F.2d 1308, 1326-30 (7th Cir. 1989); Willoughby, 860 F.2d at 19-21;
Martin v. Tyson, 845 F.2d 1451, 1458 (7th Cir. 1988); Amen, 831
F.2d at 378-80; United States v. Paul, 614 F.2d 115, 117 (6th Cir.
1980); United States v. Green, 842 F.Supp. 68, 71-72 (W.D.N.Y.
1994), aff'd, 80 F.3d 688, cert. denied, 117 S. Ct. 319 (1996);
United States v. Valencia, 711 F.Supp. 608, 611 (S.D. Fla. 1989);
Lee v. Carlson, 645 F.Supp. 1430, 1438-39 (S.D.N.Y. 1986).
Additionally, the Eleventh Circuit has held that a personal
call may be intercepted by a business under S 2510(5)(a)(i) "to the
extent necessary to guard against unauthorized use of the telephone
or to determine whether a call is personal or not." Watkins, 704
F.2d at 583. Similarly, the Eighth Circuit has suggested that in
circumstances where an employee is believed to be committing a
crime or making excessive personal calls, employer monitoring of
employee phone calls may not be an unlawful "interception" under
the "ordinary use" exception applicable to extension phones in S
2510(5)(a)(i). See Deal v. Spears, 980 F.2d 1153, 1158 (8th Cir.
1992).
49
plaintiff must prove by a preponderance of the evidence that a
person acting under color of state law deprived him of a right
guaranteed by the United States Constitution or the laws of the
United States. Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.),
cert. denied, 116 S. Ct. 515 (1995); Tatro v. Kervin, 41 F.3d 9,
14 (1st Cir. 1994). Gilday argues that the terms of the Gilday
injunction grant him a "federal right to be free of any intercep-
tion of his wire communications not specifically permitted under
the terms of the Permanent Injunction." From this mistaken premise
he maintains that the DOC defendants violated section 1983 by
implementing the MITS under color of Massachusetts law in violation
of the Gilday injunction, thereby depriving him of a "federal
right." Likewise, he claims that AT&T and NET are state actors,
liable for aiding and abetting the alleged violations by the DOC
defendants. As the Gilday injunction was never violated, however,
these civil rights claims collapse as well.
III
CONCLUSION
Appellant having failed to show as a matter of law that
appellees violated the permanent injunction or caused a deprivation
of any federal or constitutional rights, the judgment of the
district court is affirmed.
On appeal, Gilday has abandoned the claim that defendants
deprived him of "meaningful access to the courts," as well as his
Sixth and Fourteenth Amendment rights. We therefore deem any such
section 1983 claim waived. See Playboy Enterprises, Inc. v. Public
Service Commission of Puerto Rico , 906 F.2d 25, 40 (1st Cir. 1990).
50
Related
Skelly Oil Co. v. Phillips Petroleum Co.
339 U.S. 667 (Supreme Court, 1950)
Baker v. Carr
369 U.S. 186 (Supreme Court, 1962)
Abbott Laboratories v. Gardner
387 U.S. 136 (Supreme Court, 1967)
Flast v. Cohen
392 U.S. 83 (Supreme Court, 1968)
United States v. Armour & Co.
402 U.S. 673 (Supreme Court, 1971)
Regional Rail Reorganization Act Cases
419 U.S. 102 (Supreme Court, 1974)
United States v. New York Telephone Co.
434 U.S. 159 (Supreme Court, 1977)
City of Los Angeles v. Lyons
461 U.S. 95 (Supreme Court, 1983)
Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission
461 U.S. 190 (Supreme Court, 1983)
Thomas v. Union Carbide Agricultural Products Co.
473 U.S. 568 (Supreme Court, 1985)
Barnett Bank of Marion County, N. A. v. Nelson
517 U.S. 25 (Supreme Court, 1996)
Velez-Gomez v. SMA Life Assurance Co.
8 F.3d 873 (First Circuit, 1993)
Williams v. Poulos
11 F.3d 271 (First Circuit, 1993)
Hegarty v. Somerset County
53 F.3d 1367 (First Circuit, 1994)
Tatro v. Kervin
41 F.3d 9 (First Circuit, 1994)
Gilday v. Callahan
59 F.3d 257 (First Circuit, 1995)
United States v. Pervaz
118 F.3d 1 (First Circuit, 1997)
New York Telephone Company v. Communications Workers of America, Afl-Cio
445 F.2d 39 (Second Circuit, 1971)
Linwood T. Ford v. Edward Kammerer
450 F.2d 279 (Third Circuit, 1971)
A/s J. Ludwig Mowinckles Rederi v. Tidewater Construction Corporation, Lone Star Industries, Inc. v. Gearbulk, Ltd.
559 F.2d 928 (Fourth Circuit, 1977)
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