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Intercepted Cell Phone Calls:

[NOTE IMPORTANT UPDATE BELOW.]

Mickey Kaus writes:

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

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

...

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

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

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

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

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

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

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

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.

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

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

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