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Covert Taping - State & Federal Law

FOR PUBLICATION



UNITED STATES COURT OF APPEALS



FOR THE NINTH CIRCUIT



MARK SUSSMAN; KEN GERRIN;

PERRY CARTER; SIMONE LUND;

VANESE MCNEIL; AMIN A. FARUQI;

BETTY KOSS; ROBERT BOZOYAN;

LILIAN HEDRICK; EVANGELINE

RAGASA; CHRISTOPHER ROGERS;

PATRICIA HOPKINS; DERRICK C.

LESHURRE; DEANNA WILLIAMS,                            No. 97-55410

Plaintiffs-Appellants,

                                                     D.C. No.

v.                                                    CV-94-08524-JMI-

                                                     Ex

AMERICAN BROADCASTING

COMPANIES, INC., dba KABC-TV                          OPINION

Inc.; THOMAS ALBERT OETGEN; BOB

CALO; RICHARD KAPLAN; WALTER

PORGES; IRA ROSEN; STACY LESCHT;

AMERICAN BROADCASTING

COMPANIES, INC.; CLAYTON

MCVICKER,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

James M. Ideman, District Judge, Presiding



Argued and Submitted

November 3, 1998--Pasadena, California



Filed August 18, 1999



                               9397





Before: Alex Kozinski and Andrew J. Kleinfeld,

Circuit Judges, and Owen M. Panner,*

District Judge.



Opinion by Judge Kozinski




_________________________________________________________________

*The Honorable Owen M. Panner, Senior United States District Judge

for the District of Oregon, sitting by designation.



                               9398





Supreme Court reversed in turn, holding that the covert taping

of office conversations by a television reporter can be action-

able as an invasion of privacy.



Before the California Supreme Court's decision

("Sanders"), appellant Mark Sussman and other current and

former PMG employees filed a lawsuit against ABC based on

the same conduct that underlay the Sanders ruling. The com-

plaint alleged claims for eavesdropping under S 2511.



ABC removed the action to federal court. The district court

granted ABC's motion for summary judgment, concluding

that Lescht's interception was not for the purpose of commit-

ting a criminal or tortious act within the meaning of S 2511

because ABC had done the taping for newsgathering pur-

poses.



Sussman and the other plaintiffs appealed. They contended

that in light of Sanders, ABC violated S 2511 because the tap-

ing itself was tortious.



[1] The existence of a lawful purpose does not mean that

the interception is not also for a tortious or unlawful purpose.

The existence of a lawful newsgathering purpose would not

sanitize a tape that was also made for an illegitimate purpose;

the tape would violate S 2511.



[2] The plaintiffs pointed to no state statute or caselaw indi-

cating that it was tortious or illegal for ABC to air the tapings

made by Lescht. In fact the California Court of Appeal

recently emphasized that newsworthiness is a complete bar to

liability for publication of private facts. UnderS 2511, the

focus is not on whether the interception violated another law;

it is on whether the purpose for the interception--its intended

use--was criminal or tortious. When the taping is legal but

done for the purpose of facilitating some other impropriety,

S 2511 applies. When the purpose is not illegal or tortious, but

the means are, the victims must seek redress elsewhere.



                               9399





[3] Although ABC's taping may have been a tortious inva-

sion of privacy under state law, the plaintiffs produced no

probative evidence that ABC had an illegal or tortious pur-

pose when it made the tape.



_________________________________________________________________

COUNSEL



Neville L. Johnson, Neville L. Johnson & Associates, Los

Angeles, California, for the plaintiffs-appellants.



Steven M. Perry, Munger, Tolles & Olsen, Los Angeles, Cali-

fornia, for the defendants-appellees.



_________________________________________________________________



OPINION



KOZINSKI, Circuit Judge:



We decide whether ABC's surreptitious videotapings dur-

ing an investigation of the Psychic Marketing Group could

have violated 18 U.S.C. S 2511 (1994), the federal wiretap-

ping statute.



I



ABC hired Stacy Lescht to pose as a psychic telephone

advisor in order to gain access to the offices of the Psychic

Marketing Group (PMG). While working in the Los Angeles

office of the PMG, Lescht used various surveillance devices

to record the activities around her. Some of these recordings

were aired in a segment of the ABC News program Prime-

Time Live.



Soon thereafter, two PMG employees who had been taped

filed suit in state court alleging various causes of action,

including invasion of privacy by photography.1 The jury

_________________________________________________________________

1 It is unclear whether plaintiffs had pleaded this in their complaint, as

the state trial judge sua sponte instructed the jury on the elements of the



                               9400





found for plaintiffs on this claim but the California Court of

Appeal reversed. See Sanders v. American Broad. Cos., 60

Cal. Rptr. 2d 595, 599 (Cal. Ct. App. 1997).2 The California

Supreme Court, in turn, reversed the Court of Appeal, holding

that the covert taping of office conversations by a television

reporter could be actionable as an invasion of privacy. See

Sanders v. American Broad. Cos., 978 P.2d 67 (Cal. 1999).



Prior to the Supreme Court's ruling, more than a dozen cur-

rent and former PMG employees, plaintiffs here, filed a law-

suit based on the same conduct as in Sanders; plaintiffs

asserted, inter alia, claims for eavesdropping under 18 U.S.C.

S 2511.3 Defendants subsequently removed the case to federal

court. The district court granted defendants' motion for sum-

mary judgment and plaintiffs appeal.



II



Section 2511 reads in pertinent part:



      It shall not be unlawful under this chapter for a per-

      son not acting under color of law to intercept a wire,

      oral, or electronic communication where such person

      is a party to the communication or where one of the

      parties to the communication has given prior consent

      to such an interception unless such communication is

      intercepted for the purpose of committing any crimi-

      nal or tortious act in violation of the Constitution or

      laws of the United States or of any State.

_________________________________________________________________

" `sub-tort' of `the right to be free of photographic invasion.' " Sanders,

60 Cal. Rptr. 2d at 596.

2 The reversal was only as to one of the plaintiffs; the other one, Naras

Kersis, died during the pendency of the proceedings, and so his suit was

dismissed.

3 Plaintiffs also raised various state law claims but none of those are at

issue in this appeal.



                               9401





18 U.S.C. S 2511(2)(d) (emphasis added). Because ABC was

not acting under color of law, and because Lescht was always

a party to the conversations being taped,4  the case turns on the

underscored portion of the statute, which asks whether the

interception was "for the purpose of committing any criminal

or tortious act." The district court ruled that it was not,

because ABC had done the taping for news gathering pur-

poses: "[W]here a journalist is party to a conversation, the

recording of such a conversation for news gathering purposes

is not criminal or tortious conduct within the meaning of the

statute." If the district court interpreted section 2511 as con-

taining a blanket exemption for journalists, we cannot agree.

Congress could have drafted the statute so as to exempt all

journalists from its coverage, but did not. Instead, it treated

journalists just like any other party who tapes conversations

surreptitiously.



[1] The district court may have meant, however, that defen-

dants were exempt because they had a lawful purpose for the

surreptitious taping, namely news gathering. The court may

have reasoned that any time the interception serves a lawful

purpose, it perforce does not violate section 2511. But the

existence of a lawful purpose does not mean that the intercep-

tion is not also for a tortious or unlawful purpose. For exam-

ple, assume that a news gathering organization secretly

videotapes bedroom activities. Even though there may be a

legitimate news gathering purpose (e.g., listening for "pillow

talk" about some newsworthy event), public airing of such a

tape may be illegal or tortious under state law. Under these

circumstances, the taping could be for both a legitimate pur-

pose (news gathering) and also an unlawful or tortious pur-

pose (airing private intimate conduct). The existence of the

lawful purpose would not sanitize a tape that was also made

for an illegitimate purpose; the taping would violate section

2511.

_________________________________________________________________

4 Plaintiffs argue that Lescht taped some conversations to which she was

not a party, but they have presented no evidence supporting this claim.



                               9402





[2] Plaintiffs here have pointed to no state statute or

caselaw indicating that it was tortious or illegal for ABC to

air the tapings made by Lescht. In fact, the California Court

of Appeal recently emphasized that "[n]ewsworthiness . . . is

a complete bar to liability for publication of private facts and

is evaluated with a high degree of deference to editorial

judgment." Marich v. QRZ Media, Inc. , 86 Cal. Rptr. 2d 406,

419 (Cal. Ct. App. 1999).  While plaintiffs have claimed that

ABC's story was factually incorrect and unfair, they have

never claimed it was not newsworthy. Nor do they argue that

the tape was made for the purpose of committing some other

subsequent crime or tort. Rather, plaintiffs point to Sanders

and argue that the taping itself was tortious. If an otherwise

lawful taping violates section 2511 when committed for a pro-

hibited purpose, argue plaintiffs, the section must also be vio-

lated when the taping itself is illegal or tortious. This

argument finds no support in the statute. Under section 2511,

"the focus is not upon whether the interception itself violated

another law; it is upon whether the purpose for the

interception--its intended use--was criminal or tortious."

Payne v. Norwest Corp., 911 F. Supp. 1299, 1304 (D. Mont.

1995), aff'd in part and rev'd in part, 113 F.3d 1079 (9th Cir.

1997). See also Deteresa v. American Broad. Cos., 121 F.3d

460, 467 n.4 (9th Cir. 1997) (emphasizing the distinction

between a taping that is itself tortious or criminal, and one

carried out for the purpose of committing some other crime or

tort). Where the taping is legal, but is done for the purpose of

facilitating some further impropriety, such as blackmail, sec-

tion 2511 applies. Where the purpose is not illegal or tortious,

but the means are, the victims must seek redress elsewhere.



[3] Although ABC's taping may well have been a tortious

invasion of privacy under state law, plaintiffs have produced

no probative evidence that ABC had an illegal or tortious pur-

pose when it made the tape. We may affirm the district court

on any basis supported by the record. See, e.g. , United States

v. Albers, 136 F.3d 670, 672 (9th Cir. 1998).



AFFIRMED.


*** Any law, statute, regulation or other precedent is subject to change at any time ***

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