The Wild Card
LEGAL DISCLAIMER: This post contains legal jargon, legal analysis and less profanity than usual because, well, my professor will be reading it and that’s kind of weird. But I think you’ll enjoy it if you’re a bored sociopath.
On March 12, 2013 an article appeared on Deadspin containing a recorded phone call between NFL General Managers (GMs) Buddy Nix of our very own Buffalo Bills and Mark Dominik of the not-our-own Tampa Bay Buccaneers.[1] Neither GM knew that their conversation was being recorded by two eager opportunistics on a third line. The content of the conversation was, at least to football obsessives like my self and yours: racy. Both GMs disclosed otherwise proprietary information, such as who was on the trade block, and how they felt about certain of their players under contract. The article garnered a degree of publicity, and a short survey of comments on the Deadspin website shows that many fans thought the same thing: that’s got to be illegal. Right? We’ll see. But first, let’s spin a tale of intrigue, suspense and “dadgum” embarrassment.
Here’s how it happened. According to Deadspin, the “pranksters”[2] dialed the publicly listed phone number for the Bills’ front office and asked for Buddy Nix, claiming to be Dominik. Surprisingly enough, they were patched through and Nix answered the phone. They panicked and hung up.
Next, they concocted a little plan: they would call Dominik next and see if they couldn’t get Dominik and Nix to play an annoying game of phone tag. The devils. But while they were on the horn with Dominik’s secretary, Nix called them back! So, they used three-way calling to answer Nix’s call while they were being patched through to Dominik.
LEGAL DISCLAIMER: This post contains legal jargon, legal analysis and less profanity than usual because, well, my professor will be reading it and that’s kind of weird. But I think you’ll enjoy it if you’re a bored sociopath.
On March 12, 2013 an article appeared on Deadspin containing a recorded phone call between NFL General Managers (GMs) Buddy Nix of our very own Buffalo Bills and Mark Dominik of the not-our-own Tampa Bay Buccaneers.[1] Neither GM knew that their conversation was being recorded by two eager opportunistics on a third line. The content of the conversation was, at least to football obsessives like my self and yours: racy. Both GMs disclosed otherwise proprietary information, such as who was on the trade block, and how they felt about certain of their players under contract. The article garnered a degree of publicity, and a short survey of comments on the Deadspin website shows that many fans thought the same thing: that’s got to be illegal. Right? We’ll see. But first, let’s spin a tale of intrigue, suspense and “dadgum” embarrassment.
Here’s how it happened. According to Deadspin, the “pranksters”[2] dialed the publicly listed phone number for the Bills’ front office and asked for Buddy Nix, claiming to be Dominik. Surprisingly enough, they were patched through and Nix answered the phone. They panicked and hung up.
Next, they concocted a little plan: they would call Dominik next and see if they couldn’t get Dominik and Nix to play an annoying game of phone tag. The devils. But while they were on the horn with Dominik’s secretary, Nix called them back! So, they used three-way calling to answer Nix’s call while they were being patched through to Dominik.
The timing was perfect. So they fell silent, and recorded the conversation between Nix and Dominik by putting the call on speaker and holding another cell phone up to the first.
Nix opens by saying “dadgum fella, I called you back 100 times!” Over the next 5:43 seconds, Dominik discloses specific names they’re trying to trade, including E.J. Biggers, and Jamon “don’t call me ham-bone” Meredith. Nix discloses his plan to cut Ryan Fitzpatrick if he did not re-work his contract as well as his view that they need more draft picks.
A short time later, the Bills did in fact cut Fitzpatrick after failing to work out a deal. To date, the Bucs have not found a trade partner for Meredith or Biggers, and the Bills have not acquired any extra draft picks. This leaves us with a few interesting questions: (1) did the publication of this conversation damage either team by making it more difficult for them to make trades or (in the Bills’ case) re-sign Fitzpatrick?; (2) what’s that good-fer-nothin Obama going to do about this?! (3) what in the hell does dag-gum mean!?[3]
LEGAL DISCLAIMER #2: The remainder of this article discusses statutes, case law, and other legal shit. By continuing to read, you hereby agree to absolve DearGodWhyUsSports and the author of liability for any self-inflicted damage to your wrists, eyes, or chattels.[4]
OK, so this is pretty clearly, as you would guess, a privacy law issue. So before you start yelling about the Constitution and freedom and other red white and blue topics, know that there is no explicit “right to privacy” like there is “freedom of speech.” Instead it’s implicit, derived from the 4th Amendment, 5th Amendment and other places in the Constitution.[5] On top of that, much of the law comes from statutes and case law. Let’s start with the statutes.
THE WIRETAP ACT
Here are the relevant parts of the Wiretap Act:
Nix opens by saying “dadgum fella, I called you back 100 times!” Over the next 5:43 seconds, Dominik discloses specific names they’re trying to trade, including E.J. Biggers, and Jamon “don’t call me ham-bone” Meredith. Nix discloses his plan to cut Ryan Fitzpatrick if he did not re-work his contract as well as his view that they need more draft picks.
A short time later, the Bills did in fact cut Fitzpatrick after failing to work out a deal. To date, the Bucs have not found a trade partner for Meredith or Biggers, and the Bills have not acquired any extra draft picks. This leaves us with a few interesting questions: (1) did the publication of this conversation damage either team by making it more difficult for them to make trades or (in the Bills’ case) re-sign Fitzpatrick?; (2) what’s that good-fer-nothin Obama going to do about this?! (3) what in the hell does dag-gum mean!?[3]
LEGAL DISCLAIMER #2: The remainder of this article discusses statutes, case law, and other legal shit. By continuing to read, you hereby agree to absolve DearGodWhyUsSports and the author of liability for any self-inflicted damage to your wrists, eyes, or chattels.[4]
OK, so this is pretty clearly, as you would guess, a privacy law issue. So before you start yelling about the Constitution and freedom and other red white and blue topics, know that there is no explicit “right to privacy” like there is “freedom of speech.” Instead it’s implicit, derived from the 4th Amendment, 5th Amendment and other places in the Constitution.[5] On top of that, much of the law comes from statutes and case law. Let’s start with the statutes.
THE WIRETAP ACT
Here are the relevant parts of the Wiretap Act:
18 USC §2510 (4) “intercept” means the 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 USC §2511 (1) 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
. . . shall be punished as provided in subsection (4) . . .
(4)(a) . . . whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.
18 USC §2511 (2)(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication . . . unless such communication is intercepted for the purpose of committing any criminal or tortious act . . .
A few things should jump out. §2510(4) defines “intercept” broadly. It’s couched in the “acquisition” of a communication, it doesn’t matter too much how you acquire it. Then, jumping to §2511(1), “wire, oral, or electronic communication” is certainly going to encompass a telephone call. But the catch is 2511(2)(d) which makes an exception for any person who is a party to the call. Hm. That’s interesting. Were the pranksters a party to the call? If I’m their lawyer, I’m saying “hey, Nix called them! How could they not be a party?!”
But it doesn’t end there. The exception allowing a party of the call to intercept only stands when the party isn’t intercepting for the purpose of committing a “criminal or tortious act.” And this brings us to at least three more questions: (a) what was their purpose in recording the call? (b) was anything tortious here? And (c) under what jurisdiction?. Oh, trust me, I groaned too. And whimpered a little bit.
We’ll start with jurisdiction. Deadspin is located in New York, as is Nix and the Bills. So if the Bills or Nix wanted to go after Deadspin, NY clearly has jurisdiction. But we have no idea where the pranksters live. So, for the sake of simplicity we’ll assume they’re located in New York.
Ok, now we can get into the privacy torts that New York State recognizes. Typically, a nice guide for these types of questions are the Restatements of Law, which generally synthesizes the law of the 50 of these United States of America. So I make my way over to the Restatement, and specifically the four privacy torts it enumerates. A quick perusal shows that only two are really at play here without super-fancy creative lawyer tricks: Public Disclosure of Private Facts, and Intrusion Upon Seclusion.
Public Disclosure of Private Facts – essentially, a person commits this tort when they publicly disclose information that a normal person would find “highly offensive” and whatever’s disclosed is “not of legitimate concern to the public.” As for the first, your private phone calls being posted on the internet is going to be offensive to just about anybody – and I would say highly offensive. But the second one? Hm. We’ll get to “legitimate concern to the public” later.
Intrusion Upon Seclusion – This tort is broad and vague – it’s committed when someone intrudes upon the “solitude or seclusion” of another, and a normal person would find it highly offensive.
Looking kinda promising am I right?! … WRONG. Guess what kids! The great state of New York recognizes no common law right to privacy.[6] It’s governed entirely by two confusing, perhaps even obfuscating statutes.[7] But the statutes are pretty clear about one thing: unless you want to sue a company for infringing on your privacy, you’re screwed, man.
So now all of the sudden the pranksters are looking pretty good. But just to pile it on, even if their conduct was tortious, remember the statute says “purpose.” What was their purpose? Given that Nix just happened to call them at the right time, it’s hard to think they had much premeditated purpose. If nothing else, it’s another point they could argue.
So at this point, we’ve essentially eliminated any cause of action against the pranksters under New York State law, so what’s left of their liability under the Wiretap Act? Well, if their conduct isn’t tortious under New York state, that means the §2511(d)(2) exception is definitely at play. So the big question is: were they a party to the call? Once again, Nix called them, so that does mean they have to be a party?
I can’t say I searched high and low, but from what I can tell, this could be a question of first impression under the Wiretap Act. One case involving three-way calling is Johnson v. State, where inmates at a prison commonly would use three-way calling to get the most out of the prison’s payphones. They would call someone with 3-way calling, and ask them to patch them through to somebody else. The court held that the person implementing the three-way calling was a party under the §2511(d)(2) exception, even though she was listening covertly. But, in that case, both parties knew at least they were the part of a 3-way call. Here, neither Nix nor Dominik was aware that it was a 3-way call. So what makes a party to the call a party? Do the other parties have to address you as a party? Does someone have to consent to including you? Does calling you directly necessarily dictate consent? I don’t know for sure, but I have to think the law is smiling wider and wider upon our pranksters.
< Guy inexplicably still reading this, interrupts a long chug of cough medicine and yells “OK FINE! Fine. But what about Deadspin, right?! Deadspin’s a company in NY, and they can’t just publish people’s phone conversation online and get away with it, right?! >
But it doesn’t end there. The exception allowing a party of the call to intercept only stands when the party isn’t intercepting for the purpose of committing a “criminal or tortious act.” And this brings us to at least three more questions: (a) what was their purpose in recording the call? (b) was anything tortious here? And (c) under what jurisdiction?. Oh, trust me, I groaned too. And whimpered a little bit.
We’ll start with jurisdiction. Deadspin is located in New York, as is Nix and the Bills. So if the Bills or Nix wanted to go after Deadspin, NY clearly has jurisdiction. But we have no idea where the pranksters live. So, for the sake of simplicity we’ll assume they’re located in New York.
Ok, now we can get into the privacy torts that New York State recognizes. Typically, a nice guide for these types of questions are the Restatements of Law, which generally synthesizes the law of the 50 of these United States of America. So I make my way over to the Restatement, and specifically the four privacy torts it enumerates. A quick perusal shows that only two are really at play here without super-fancy creative lawyer tricks: Public Disclosure of Private Facts, and Intrusion Upon Seclusion.
Public Disclosure of Private Facts – essentially, a person commits this tort when they publicly disclose information that a normal person would find “highly offensive” and whatever’s disclosed is “not of legitimate concern to the public.” As for the first, your private phone calls being posted on the internet is going to be offensive to just about anybody – and I would say highly offensive. But the second one? Hm. We’ll get to “legitimate concern to the public” later.
Intrusion Upon Seclusion – This tort is broad and vague – it’s committed when someone intrudes upon the “solitude or seclusion” of another, and a normal person would find it highly offensive.
Looking kinda promising am I right?! … WRONG. Guess what kids! The great state of New York recognizes no common law right to privacy.[6] It’s governed entirely by two confusing, perhaps even obfuscating statutes.[7] But the statutes are pretty clear about one thing: unless you want to sue a company for infringing on your privacy, you’re screwed, man.
So now all of the sudden the pranksters are looking pretty good. But just to pile it on, even if their conduct was tortious, remember the statute says “purpose.” What was their purpose? Given that Nix just happened to call them at the right time, it’s hard to think they had much premeditated purpose. If nothing else, it’s another point they could argue.
So at this point, we’ve essentially eliminated any cause of action against the pranksters under New York State law, so what’s left of their liability under the Wiretap Act? Well, if their conduct isn’t tortious under New York state, that means the §2511(d)(2) exception is definitely at play. So the big question is: were they a party to the call? Once again, Nix called them, so that does mean they have to be a party?
I can’t say I searched high and low, but from what I can tell, this could be a question of first impression under the Wiretap Act. One case involving three-way calling is Johnson v. State, where inmates at a prison commonly would use three-way calling to get the most out of the prison’s payphones. They would call someone with 3-way calling, and ask them to patch them through to somebody else. The court held that the person implementing the three-way calling was a party under the §2511(d)(2) exception, even though she was listening covertly. But, in that case, both parties knew at least they were the part of a 3-way call. Here, neither Nix nor Dominik was aware that it was a 3-way call. So what makes a party to the call a party? Do the other parties have to address you as a party? Does someone have to consent to including you? Does calling you directly necessarily dictate consent? I don’t know for sure, but I have to think the law is smiling wider and wider upon our pranksters.
< Guy inexplicably still reading this, interrupts a long chug of cough medicine and yells “OK FINE! Fine. But what about Deadspin, right?! Deadspin’s a company in NY, and they can’t just publish people’s phone conversation online and get away with it, right?! >
Oh boy, I really hope this doesn’t lead to your stomach getting pumped, but I wouldn’t be so sure. As far as publisher liability, that’s a whole body of law involving the 1st Amendment freedom of the press as well as privacy, and public figures, and newsworthiness…. Oh my. But I’ll leave you with a taste:
Consider the case of Davis v. High Society Magazine.[8] An allegedly famous female boxer, Davis, sued a magazine for publishing a picture of a nude female boxer, whom the magazine claimed was Davis. The New York court held that the picture was newsworthy (of legitimate public concern). Yikes. If nudie photos of female boxers are newsworthy, then recordings of NFL GM’s have got to be too. Public Disclosure of Private Facts is looking no bueno for Nix in NY.
So there you have it. It seems to me that there’s a strong chance that both Deadspin and the pranksters get away with this clean. At least under privacy law. And what does this say about the state of our privacy laws? Probably a lot. But here’s a few things to think about:
Consider the case of Davis v. High Society Magazine.[8] An allegedly famous female boxer, Davis, sued a magazine for publishing a picture of a nude female boxer, whom the magazine claimed was Davis. The New York court held that the picture was newsworthy (of legitimate public concern). Yikes. If nudie photos of female boxers are newsworthy, then recordings of NFL GM’s have got to be too. Public Disclosure of Private Facts is looking no bueno for Nix in NY.
So there you have it. It seems to me that there’s a strong chance that both Deadspin and the pranksters get away with this clean. At least under privacy law. And what does this say about the state of our privacy laws? Probably a lot. But here’s a few things to think about:
- Are nudie photos and sports conversations really matters of public concern? When the law protects this stuff, what effect does this have on the media we receive and consume? What effect on our social consciousness? What effect on our individual conceptions of what’s “private”?
- Expectation of privacy is a prevalent if not dominant consideration in privacy law. What does it say about the state of privacy law that this relatively simple pattern of facts required the navigation of a labyrinth of statutes and case law? Should an area of law based on common expectations be a bit easier to navigate? How the heck is a layman supposed to pattern his conduct around this law?!
- Was Nix or The Bills materially damaged? Did Fitzpatrick perhaps not agree to a new deal after hearing what Nix had to say about him? How much money could the Bills have saved if they did reach a deal?
- Most importantly, the draft’s in 4 days. How the hell are you not YouTubing Barkley and Nassib right now?! Get out of here you putz.[9]
[1] This is an endnote. Lawyers use them to back up their assertions and occasionally to ramble about shit they don’t expect anyone to care about. I’ll probably just use them for snide commentary. Hey, this is the internet – tradition be damned.
[2] I guess Deadspin lacked a better term. And so do I. But they’re not pranksters. Nobody stepped in poo.
[3] The vaunted Urban Dictionary defines it as “To Display mild annoyance, alternate of God damn.”
[4] Chattels: (n.) property, stuff or “your shit.”
[5] If you ever want to talk about privacy law and sound like a real edified prick, google “penumbras and emanations" and mention “Griswold” and that should just about do it.
[6] See Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 123, 612 N.E.2d 699, 703 (1993) (“in this State the right to privacy is governed exclusively by sections 50 and 51 of the Civil Rights Law; we have no common law of privacy”).
[7] McKinney's Civil Rights Law §§ 50, 51.
[8] 90 A.D.2d 374457 N.Y.S.2d 308
[9] Putz: (n.) 1. Slang A fool; an idiot. 2. Vulgar Slang A penis.
[2] I guess Deadspin lacked a better term. And so do I. But they’re not pranksters. Nobody stepped in poo.
[3] The vaunted Urban Dictionary defines it as “To Display mild annoyance, alternate of God damn.”
[4] Chattels: (n.) property, stuff or “your shit.”
[5] If you ever want to talk about privacy law and sound like a real edified prick, google “penumbras and emanations" and mention “Griswold” and that should just about do it.
[6] See Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 123, 612 N.E.2d 699, 703 (1993) (“in this State the right to privacy is governed exclusively by sections 50 and 51 of the Civil Rights Law; we have no common law of privacy”).
[7] McKinney's Civil Rights Law §§ 50, 51.
[8] 90 A.D.2d 374457 N.Y.S.2d 308
[9] Putz: (n.) 1. Slang A fool; an idiot. 2. Vulgar Slang A penis.
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