In Seitz v. City of Elgin, the Seventh Circuit ruled that the Federal Wire Tapping Act (FWA) does not authorize a civil lawsuit against a municipality for intentionally disclosing or using electronic communications. While amendments to the FWA have expanded the potential scope of liability to reach municipalities, the court said in an opinion by Judge Joel M. Flaum that they did so only as a means of vindicating rights stated elsewhere in the Act. The decision created a circuit split, because the Sixth Circuit previously found that the FWA amendments brought municipalities within the potential ambit of liability.
The Seventh Circuit agreed with the Sixth Circuit up to a certain point: the word "entity" in the statute includes government units. However, unless the specific remedy being pursued by a claimant under the FWA provided a cause of action against an "entity," no action against a municipality exists. For example, if the specific remedy pursued by a claimant under the FWA only provided a cause of action against a "person," the claimant would not have a cause of action against a municipality under that provision, because the definition of "person" does not include municipalities.
By considering whether the amendments to the FWA created any substantive rights itself, the Seventh Circuit provided a sound analysis of the FWA that holds the legislature to the words it used. This Note will discuss how the Seventh Circuit reached its decision and the implications the decision has on municipalities' ability to disclose or use a private individual's electronic communications.
McKenna M. Prohov,
Your Call Is Now Being Monitored: Should Municipalities Be Liable for Unauthorized Wiretapping?,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol9/iss1/8