• The US Second Circuit Court of Appeals has agreed with the US District Court for the District of Connecticut that using an iPhone to record a conversation, when such recording is not for an otherwise tortious or criminal act, does not violate the Wiretap Act, 18 U.S.C. § 2510. In Caro v. Weintraub et al., No. 09-3685, 2010 WL 3191353 (2d Cir. Aug. 13, 2010), a three-judge panel upheld the lower court’s dismissal of a suit brought by Marshall Caro against his stepchildren and their lawyers. The case involves a dispute over the estate of Caro’s wife, Elizabeth. One of Caro’s stepsons allegedly used a “recorder” application on the iPhone to surreptitiously record part of a heated conversation between himself, Caro and others about Elizabeth’s signing of a will before her death. Three days later, Elizabeth died without a will. Caro filed suit when the recordings were introduced as evidence in subsequent probate proceedings. US District Judge Peter C. Dorsey dismissed Caro’s suit with prejudice, concluding that the recording was legal because the Wiretap Act permits the recording of a conversation if one party consents to it. On appeal, Caro argued that the recording was made with tortious intent, that is, invasion of privacy, and was thus actionable. The Second Circuit upheld Judge Dorsey’s ruling, finding that Caro’s failure to allege that Weintraub intended to use the recording for any tortious purpose beyond the recording itself, such as extortion, bribery or theft of trade secrets, was fatal to his claim. “[T]o bring a claim under the Wiretap Act, the offender must intercept with tortious intent that relates to a tort independent from the act of recording itself,” the panel stated.
  • The Foreign Intelligence Surveillance Court is proposing new rules that would give both telecommunications providers and the federal government new rights under the revised Foreign Intelligence Surveillance Act approved two years ago. In a final draft of court rules made late last month, a provider who receives a directive from the federal government related to surveillance would be allowed to file a petition to modify or set aside the directive. If a carrier fails to comply with a government directive, however, federal officials would be allowed to file a petition to compel the company to comply with the order. The court is currently accepting comment on the proposed rules until October 4, 2010. The proposed rules are available here.