By: Joseph Metcalfe
Assistant Professor
University of Oregon School of Law
Does 18 U.S.C. Section 2520(a) of the Wiretap Act provide a civil cause of action for a claim arising under the criminal provisions of 18 U.S.C. Section 2512(1)(b) prohibiting the manufacture, assembly, possession or sale of interception devices? A question keeping some of us up at night, no doubt. Judging by the split in authority among federal district courts that have considered this issue in the context of satellite television signal interception, a definitive answer to that question has proven to be surprisingly elusive. Recent opinions holding that Section 2520 supports a civil cause of action for violation of Section 2512 include DirecTV v. Drury, -- F.Supp.2d --, 2003 WL 22245388 (M.D.Fla. June 26, 2003) and DirecTV v. Perez, -- F.Supp.2d --, 2003 WL 22038403 (N.D.Ill. August 27, 2003). Courts reached the opposite conclusion in DirectTV [sic] v. Westendorf, -- F.Supp.2d --, 2003 WL 22139786 (N.D.Ill. Sept. 16, 2003), DirecTV v. Childers, 274 F.Supp.2d 1287 (M.D.Ala. July 29, 2003), and DirecTV v. Cardona, 275 F.Supp.2d 1357 (M.D.Fla. July 8, 2003).
DirecTV provides satellite television programming to subscribers across the country. DirecTV implements a variety of security measures in an effort to prevent unauthorized interception of its programming, including encryption of satellite signals and requiring the use of access cards by paid subscribers. Satellite signal pirates circumvent these measures by manufacturing and distributing modified access cards that permit the viewing of DirecTV satellite transmissions without authorization or payment.
DirecTV has responded to this circumvention by filing civil suit against alleged satellite television pirates. Section 2520(a) of the Wiretap Act provides a private cause of action for aggrieved parties: "[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate." Lawsuits filed pursuant to Section 2520 typically include a count based on a violation of Section 2511 prohibiting the interception, use or disclosure of satellite transmissions. In addition, DirecTV frequently includes a count alleging civil liability based on a violation Section 2512(1)(b) prohibiting the manufacture, assembly, possession, or sale of interception devices. Does Section 2520 contemplate a civil suit for the manufacture or distribution of interception devices?
The only circuit court to consider this issue, Flowers v. Tandy Corp., 773 F.2d 585 (4th Cir. 1985), rejected a civil cause of action under a previous version of Section 2520(a), which permitted a civil suit against "any person who intercepts, discloses, or uses or procures any other person to intercept, disclose or use such communications." 18 U.S.C. 2520(1) (amended by Pub.L. 99-508, Title I, Section 103, Oct. 21, 1986). Thus, prior to the 1986 amendment to the Wiretap Act, only those who intercept, disclose or use such communications (in violation of Section 2511) were subject to civil liability. The 1986 amendment arguably expanded civil liability to cover conduct which is contrary to any provision of the Wiretap Act.
Recent opinions holding that Section 2520(a) permit civil suit for violations of Section 2512 rely on the plain language of the statute. As the Drury court noted at *2:
Section 2520 applies to all violations within Chapter 19 of Title 18 of the United States Code concerning "Wire and Electronic Communications Interception and Interception of Oral Communications," which includes 18 U.S.C. Section 2512. Therefore, instead of failing to state a claim upon which relief can be granted, Count III of Plaintiff's Complaint simply asserts a private cause of action that 18 U.S.C. Section 2520(a) expressly authorizes for violations of 18 U.S.C. Section 2512 (1)(b).
Drury and courts reaching a similar result distinguish the Fourth Circuit's Flowers opinion by emphasizing the 1986 amendment to the Wiretap Act and concluding that Section 2520(a) now applies to all violations of the statute. This amendment, these courts reason, was meant to ensure adequate enforcement of the Wiretap Act by providing aggrieved persons the right to bring suit to protect their property interests based on any violation of the Wiretap Act. See Perez at *2 (civil cause of action for violations of Section 2512 necessary to "guarantee the collapse of the manufacture, distribution, and use network for interception of electronic communications").
Recent opinions holding that Section 2520(a) does *not* permit civil suit for violations of Section 2512 also rely on the plain language of the statute. Courts point to the amended text of Section 2520(a) permitting any person whose communication is "intercepted, disclosed or intentionally used" to bring suit as tracking the language of Section 2511. Although Section 2520 undoubtedly permits civil suit based on an illegal intercept or use of an interception device (Section 2511), there is no mention of interception, use or disclosure in Section 2512. On the contrary, Section 2512 targets the suppliers of equipment used to intercept programming. "Thus, Section 2520(a) does not, by its express terms, incorporate Section 2512 into its private cause of action language." Westendorf at *1. Buttressing this argument, these district court opinions also note that although the manufacture, possession or sale of interception devices is harmful to society in a broad sense, such activity "does not cause compensable harm to a provider in a civil sense." Westendorf at *2. See also Cardona at *8 ("there is no significant evidence that 18 U.S.C. Section 2512(1)(b) was enacted solely for the especial benefit of the plaintiff").
Amended Section 2520 is not a model of statutory clarity and given the flexibility of applying the canons of statutory interpretation, it is understandable that both sides in this debate rely on the "plain language" of the statute to reach a contrary result. Should we read the text "in violation of this chapter" in isolation as broadly stating the *type of conduct* that will subject an individual to civil liability? If so, then any activity in violation of the Wiretap Act (including Section 2512) could be the basis of a civil cause of action. Or does the text "in violation of this chapter" serve to *define the class of aggrieved persons* who may bring suit? If so, "in violation of this chapter" should be read as simply referencing the immediately proceeding "interception, disclosure or intentional use," conduct prohibited by Section 2511, not Section 2512.
No obvious answer here. Nevertheless, I read the amended language of Section 2520 as evidence of Congressional intent to broaden the reach of the civil enforcement provisions of the Wiretap Act. It is clear that prior to 1986, plaintiffs could not file suit under Section 2520 based on a violation of Section 2512. The amended text indicates an expansion of civil liability. Congress certainly could have circumscribed the reach of Section 2520 by limiting its applicability to particular violations of the Wiretap Act. Congress did not do so, at least explicitly. The changes passed in 1986 suggest that Congress intended to permit civil suits based on any violation of the Wiretap Act. In the absence of contrary legislative history, there appears to be no other plausible reason for amending the text of Section 2520.
Joseph Metcalfe
Assistant Professor
University of Oregon School of Law
1515 Agate Street
Eugene, OR 97403
(541)346-3996
jmetcalfe@law.uoregon.edu
To join or leave this e-mail list, or to view the archives to read past postings, visit hermes.circ.gwu.edu/archives/cybercrime.html