Videoed Sex With Sound May Violate Federal Wiretap Statute

If the young lovers talked during sex and the video recorder captured the sound, then the recording violates the federal wiretapping statute, the Seventh Circuit Court of Appeals ruled.

When she was 16, the plaintiff had consensual sex with a 17-year-old. He videotaped the act. After they stopped dating, he circulated the tape at their high school, apparently by sending some copies via email. She sued for invasion of privacy and violation of the federal wiretapping statute.The trial court dismissed the complaint because she did not allege that the video was an “interception” as required by the statute.

The appellate court rejected the requirement for specific pleading under the federal rules and reinstated the case. The court found that “[i]f Doe and Smith engaged in ‘oral communication’ in Smith’s bedroom, then its acquisition by a video recorder-an ‘electronic . . . device’-is covered.” By contrast, the court said if the video is silent, it would be outside the definition under the statute.

To meet the interstate commerce test, the plaintiff must show that disclosure was made through interstate commerce. “A home taping followed by a viewing at the local high school does not seem connected to interstate or international commerce. But if as plaintiff suspects Smith dispatched copies by email, which uses the interstate communications network, then the problem is solved,” the court observed.

The appellate court questioned whether the plaintiff should be able to proceed anonymously. “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.” The court assumed that “everyone at the high school who saw the recording already knows who ‘Doe’ is” and the only reason for anonymity may be if the video were widely circulated on the Internet.

Doe v. Smith, Seventh Cir. No. 05-1903, November 21, 2005.