Federal appeals court says don't wiretap your spouse [priv]

[Declan McCullagh <declan () well com>]

ELISABETH GLAZNER, Plaintiff-Appellant, versus JAMES GLAZNER, 
Defendant-Appellee.

No. 02-11799

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

2003 U.S. App. LEXIS 21014

October 16, 2003, Decided
October 16, 2003, Filed

After being married 19 years, James Glazner ("James") filed for divorce 
against his wife, Elisabeth Glazner ("Elisabeth"). During the divorce 
proceedings, James put a recording device on a telephone in the marital 
home. The device recorded a number of conversations between Elisabeth and 
third parties without the consent of any party to the conversations. 
Elisabeth discovered the device and filed a complaint in the United States 
District Court for the Northern District of Alabama against James seeking 
damages as a result of an alleged violation [*3]  of Title III, and damages 
for a number of state law claims.

Elisabeth based her federal claim on the wiretapping provisions of Title 
III, 18 U.S.C. §§ 2510-22. HN2Parts of that law prohibit non-consensual 
recordings of private conversations, subject to certain specified 
exceptions, and authorize civil remedies on behalf of those who suffer 
violations of the statutory provisions. During the course of the 
litigation, James filed a motion for summary judgment. Notwithstanding a 
finding by the district court that James wiretapped Elisabeth's 
conversations with third parties, the district court granted James's motion 
for summary judgment based on Simpson, which read an interspousal exemption 
into the provisions of Title III. The district court dismissed Elisabeth's 
state law claims without prejudice under 28 U.S.C. § 1367(c).

Elisabeth filed a timely notice of appeal of the district court's judgment. 
Even though the panel opinion was critical of the Simpson decision and 
concluded that it should be overruled, the panel recognized that HN3under 
the prior panel precedent rule, the panel was bound to follow the Simpson 
decision unless and [*4]  until it was overruled by this court sitting en 
banc or by the Supreme Court. See Saxton v. ACF Indus., Inc., 254 F.3d 959, 
960 n.1 (11th Cir. 2001) (en banc); Smith v. GTE Corp., 236 F.3d 1292, 1300 
n.8 (11th Cir. 2001); United States v. Steele, 147 F.3d 1316, 1317-18 (11th 
Cir. 1998) (en banc). Based on Simpson, the panel decision affirmed the 
district court's grant of summary judgment in favor of James. We 
subsequently entered an order granting Elisabeth's petition for rehearing 
and vacating the panel opinion. See Glazner, 321 F.3d at 1336.

...

For the foregoing reasons, we overrule Simpson and hold that no 
interspousal wiretapping exception exists in Title III. We also hold that 
this new rule abolishing the interspousal exception in Simpson applies 
retroactively. Accordingly, we REVERSE the district court's grant of 
James's motion for summary judgment and REMAND this case for further 
proceedings consistent with this opinion.
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