November 25, 2005 10:00 AM PST

Police blotter: Legal flap over secret sex video

"Police blotter" is a weekly report on the intersection of technology and the law. This episode: A legal flap over an online sex video.

What: A woman sues an ex-boyfriend on wiretapping charges for secretly taping their sexual encounter and distributing it via e-mail.

When: The 7th Circuit Court of Appeals ruled on Nov. 21.

Outcome: "Wiretapping" lawsuit against ex-boyfriend can proceed, the court said.

What happened: When she was 16, an unnamed woman (referred to in court documents as Jane Doe) had sex with her 17-year old boyfriend, who secretly taped the event.

After the two broke up, the boyfriend, Jason Smith, allegedly distributed copies of the video by e-mail and it was eventually posted more widely to the Internet.

The unusual twist is that Jane Doe is claiming that her ex-boyfriend violated federal wiretapping laws in two ways: first, when making the surreptitious recording, and second, when distributing it.

Federal wiretapping laws, 18 USC 2511, broadly say it is illegal to "intercept" spoken communications and also illegal to "disclose to any other person" when there is an expectation of privacy.

What makes this case unusual, though, is that it's generally legal under federal law to record spoken communications as long as one person consented--the boyfriend evidently did--and as long as the taping is not done to violate any other law. (The concept is called single-party consent. Some state laws require two-party consent.)

In addition, federal wiretapping law doesn't mention video recordings, so if the camcorder's microphone was turned off, Smith is probably off the hook.

Yet Judge Frank Easterbrook, writing on behalf of a unanimous three-judge panel, let the case proceed.

Easterbrook said a district judge was incorrect to throw out the case at this stage because it was possible for Jane Doe to prove that her ex-boyfriend made the tape for an illegal purpose, such as distributing child pornography. Federal child porn laws prohibit sexual depictions of minors, even ones that the minors record of themselves.

But Easterbrook did say that the trial judge should evaluate whether Jane Doe, who's now an adult, should be entitled to anonymity as the case continues.

Excerpt from the portion of Easterbrook's opinion on Jane Doe's anonymity: "Plaintiff was a minor when the recording occurred but is an adult today. She has denied Smith the shelter of anonymity--yet it is Smith, and not the plaintiff, who faces disgrace if the complaint?s allegations can be substantiated. And if the complaint?s allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability...

"Now perhaps anonymity still could be justified if the tape has been circulated more widely (as counsel asserted at oral argument), and disclosure would allow strangers to identify the person in the recording and thus add to her humiliation. That question should be explored in the district court--and, if the judge decides that anonymous litigation is inappropriate, the plaintiff should be allowed to dismiss the suit in lieu of revealing her name."

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