More than that: we don’t see any need to search for a device that is different from, or not integral to, the legitimate communication. [earlier cases] added this “different device” requirement to the statutory text to avoid what those judges thought would otherwise be a rule that made ordinary usage of a telephone or computer criminal. These judges feared that, unless the “device” must be extraneous to a proper communication, a person answering his own phone at home, and holding a conversation with a friend, would violate the Wiretap Act by acquiring the content of his own conversation using his own phone (a “device”).
This fear just shows why it is a mistake to read snippets of a statute in isolation. For another section of the Wiretap Act declares that “it shall not be unlawful ... for a person ... to intercept a wire, oral or electronic communication where such person is a party to the ommunication or where one of the parties ... has given prior consent.” [] So acquiring the contents of one’s own conversation, and sharing them over a speakerphone, is not unlawful, no matter what the word “device” means. It is better to follow the statute than to make up limitations to avert imaginary problems.
It would save a great deal of time and effort if this point made by Judge Easterbrook were more widely appreciated.
So many people think the law is like a series of logical assertions, and that if they can just find one error or inconsistency therein then the whole is invalidated, somewhat like a mathematical theorem or a piece of procedural computer code. Of course the law many flaws, but as a decision-making tool it's an event-driven, object-oriented, and employs a high degree of parallelism.
This fear just shows why it is a mistake to read snippets of a statute in isolation. For another section of the Wiretap Act declares that “it shall not be unlawful ... for a person ... to intercept a wire, oral or electronic communication where such person is a party to the ommunication or where one of the parties ... has given prior consent.” [] So acquiring the contents of one’s own conversation, and sharing them over a speakerphone, is not unlawful, no matter what the word “device” means. It is better to follow the statute than to make up limitations to avert imaginary problems.
It would save a great deal of time and effort if this point made by Judge Easterbrook were more widely appreciated.
So many people think the law is like a series of logical assertions, and that if they can just find one error or inconsistency therein then the whole is invalidated, somewhat like a mathematical theorem or a piece of procedural computer code. Of course the law many flaws, but as a decision-making tool it's an event-driven, object-oriented, and employs a high degree of parallelism.