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By Marion Edwyn Harrison, Esq.
April 16, 2008
Civility, commonsense and self-protection, or any combination of them, should suffice to caution all of us from talking confidentially upon airwaves or from listening to those who do.
A judgment of Chief Judge Thomas F. Hogan, United States District Court for the Columbia, illustrates the risk. Judge Hogan, incidentally, is a highly qualified and esteemed jurist, who has announced that next month he is taking Senior Judge status after more than twenty-five years of distinguished service on the Federal Bench. The Court ordered Representative James A. (Jim) McDermott (D-WA) to pay about $ 1.2 million to Representative John A. Boehner (R-OH) in final settlement of litigation. (McDermott, irrelevantly, is also a medical doctor. Boehner, probably more relevantly in this political context, is Republican Leader of the House of Representatives.)
How did the litigation arise? Believe it or not, McDermott intercepted a 1996 Florida cellular conference call between Representative Boehner and other Republicans and then released the text to the media. The Court held that McDermott in so doing violated a Federal wiretapping statute. In 2004 Judge Hogan levied a $ 60,000.00 civil fine against McDermott. McDermott argued he had a First Amendment right so to listen, tape and release the confidential conversation. McDermott sought to appeal to the Supreme Court of the United States, which declined to hear the case, thereby affirming the original judgment against McDermott. How much of these civil penalties will be paid may be another story.
The incivility of McDermott’s conduct is obvious. Also obvious should be the absence of self-protection by both Members of Congress. Therein lies a pragmatic message. One never should talk confidences over a cellular telephone. Indeed, one never should so talk about anything which is not to be shared with unknown intruders. Yet very frequently this writer, talking with a sophisticated individual, must remind that individual to omit some details which one or more conversationalists would not care to share with unknown busybodies, business competitors, criminals, identity-thieves, political rivals or just plain old-fashioned gossips.
There also is the concomitant, if doubtless far less frequent, risk that a participant in any telephone conversation, land-line or cellular, might record. This practice also gets an A+ for incivility. Unfortunately there isn’t always a way completely to guard against this form of security breach if one is obliged to speak with somebody of the recording ilk.
In an era of rampant identity theft, readily available sophisticated technology and arguably a declining culture, prudence suggests that one ignore the image of paranoia and behave guardedly in telephonic conversation.
Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation.
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