Chapter 14

Eavesdropping, Wiretapping & Hidden Cameras

Copyright © 1997 Mary Ann L. Wymore and John E. Petite Jean Lamfers
(Last update: 1997)

Mary Ann L. Wymore and John E. Petite Greensfelder, Hemker & Gale 10 South Broadway St. Louis, Missouri 63102 Telephone: (314) 241-9090 Facsimile: (314) 241-8624

Jean Lamfers Lamfers & Maneke, L.C. 4435 Main Street Kansas City, Missouri 64111 Telephone: (816) 753-6500 Facsimile: (816) 756-1496

A. Introduction

With advances in electronic technology and the inherent obstacles to investigative reporting, it has become routine for reporters to gather news with hidden cameras, surreptitious recording devices and other surveillance equipment. The mere fact that such activity may be routine newsgathering and result in truthful publication, however, will not necessarily cloak it with First Amendment immunity from civil or criminal liability.¹ Indeed, in an oft-quoted passage, the Ninth Circuit Court of Appeals stated that

[t]he First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office.²

While newsgathering is entitled to some measure of protection,³ that protection, despite its constitutional dimension, as yet remains either so trivialized or ill-defined by the courts as to render it of minimal assistance in contesting criminal or civil liability.⁴ As a result, serious pitfalls await the reporter using these newsgathering techniques but unfamiliar with the state and federal law governing his or her conduct. This chapter will survey the constitutional provisions, state and federal statutes, and common law tort theories that a newsgathering organization must consider before engaging in these methods of surveillance.

B. The Fourth Amendment and State Action

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures by government agents or state actors.⁵ The United States Supreme Court has held that the Fourth Amendment reaches searches and seizures achieved via electronic surveillance, even without a physical intrusion into a constitutionally protected area.⁶ Fourth Amendment liability will not attach, however, if one party to a conversation consents to its recording or other interception.⁷

Because the Fourth Amendment circumscribes only government action, private wiretapping and other electronic surveillance ordinarily is beyond the reach of that constitutional provision. Members of the private news media, however, can be subject to civil liability under 42 U.S.C. § 1983⁸ for violating a person's federal constitutional rights if they act "under color of state law."⁹ Section 1983's statutory requirement of action "under color of state law," has been construed as identical to the "state action" requirement of the Fourteenth Amendment.¹⁰ There are two components to the § 1983 "state action" requirement: (1) "the deprivation must be shown to have been caused by the exercise of some right or privilege created by the state, or by a rule of conduct imposed by the state or by a person for whom the state is responsible"; and (2) "the party charged with the deprivation must be someone who can fairly be said to be a state actor."¹¹

The distinction between private and state action is often elusive, and apparent inconsistencies in the Supreme Court's jurisprudence in this area have created much confusion.¹² Indeed, courts admit that the state action analysis borders on an ad hoc inquiry by proclaiming that the issue of whether a private individual is a state actor is a factbound inquiry which turns on the particular circumstances of each case.¹³ The Supreme Court's recent jurisprudence, while intentionally avoiding a definitive articulation of the state action analysis, nonetheless indicates that three theories¹⁴ are to be considered as factors in determining whether a private party can fairly be said to be a state actor under Lugar's second prong:¹⁵ (1) the joint participation theory;¹⁶ (2) the symbiotic relationship theory;¹⁷ and (3) the nexus theory.¹⁸

The most likely theory by which a media organization could be held to be a state actor is the joint participation theory. The focus of this test is whether the private party acted as a "willful participant in joint action with the state or its agents."¹⁹ Applying this "joint action" test, the Eighth Circuit has held, that, to survive a motion for summary judgment, a plaintiff seeking to hold a private party liable under § 1983 must adduce evidence from which reasonable jurors could conclude that there was a mutual understanding, or a meeting of the minds, between the private party and the state actor as to an unconstitutional goal or purpose.²⁰ This view is consistent with the view of other federal courts of appeals.²¹

In Parker v. Clarke,²² for example, the court applied the joint participation test to a media defendant in a Fourth Amendment based § 1983 claim and determined that there was no state action. The plaintiffs in Parker alleged that a KSDK television news crew conspired with police officials to enter plaintiffs' residence and film the officials' execution of a valid search warrant inside the house. The news crew was engaged in a ride-along with the police officers and when, in the course of that ride-along, the police determined to execute the search warrant, the news crew followed them inside the house and filmed the search. Once inside, the police executed the search warrant and the news crew gathered news about that police activity. Neither assisted the other in performing their respective duties. On these facts, the court held that the plaintiffs satisfied neither prong of the state action test. The first prong was not satisfied because, "[a]t most, KSDK's acts were committed parallel to and contemporaneous with the police officers' exercise of privileges under state law in the execution of a lawfully obtained search warrant.²³ Nor was the second prong satisfied because "[t]he passivity of [KSDK's spontaneous decision to follow the police inside the house and film the search] demonstrates the absence of any affirmative agreement between KSDK and the police concerning the particular conduct of KSDK which Plaintiffs now challenge."²⁴

Outside the § 1983 context, courts employ a somewhat different Fourth Amendment state action analysis. In deciding a motion to suppress evidence, the Supreme Court has held that the Fourth Amendment "is wholly inapplicable 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.'"²⁵ Lower courts have fashioned from this principle a two-part test to determine when a search by a private person becomes government action subject to the constraints of the Fourth Amendment: "1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends."²⁶ At least one court has looked to this line of decisions in determining whether a plaintiff has satisfied the "under color of law" requirement in a Bivens action against a media defendant.²⁷ As a result, and because Bivens and § 1983 state action analysis are analogous,²⁸ Jacobsen and its progeny may prove to further influence the development of the state action analysis in Fourth Amendment based civil claims against private persons.

Whatever the precise contours of the state action analysis, courts have been reluctant to find media defendants to be state actors.²⁹ Indeed, some courts, have acknowledged that the state action analysis should be even more exacting when applied to a media defendant.³⁰ In contrast, at least one court has held journalists to be state actors when they transmitted their conversations with a so-called "quack" doctor inside his home to officers in a police car parked outside the residence.³¹ At least six other courts, including three Missouri federal courts, have recognized the legal viability of claims alleging that reporters violated constitutional rights, although none confronted claims asserting illegal search or seizure.³² Thus, while lack of state action ordinarily will preclude Fourth Amendment claims against the media, the possibility of constitutional liability should not be dismissed as illusory or academic.

These decisions counsel that media organizations risk constitutional litigation when they coordinate their surreptitious electronic newsgathering efforts with federal, state or local law enforcement officials. If reporters cross the fine line between chronicling law enforcement activities and actually participating in them, or that between cultivating police contacts and engaging in concerted activity, or otherwise meld their private surveillance with that of government officials, they could face civil liability for violating the Fourth Amendment.

The following section covers the major federal and state wiretapping provisions. Its focus is on fundamental concepts of the statutory schemes to provide media organizations and other interested parties with an appreciation of their potential liability under state and federal statutory law in connection with surreptitious electronic recording and eavesdropping activities. Cases dealing specifically with the media are addressed in the accompanying footnotes.

C. Federal Statutes

1. Omnibus Crime Control and Safe Streets Act of 1968

a. Introduction

The principal federal wiretapping statute was originally enacted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III").³³ The amendments contained in the Electronic Communications Privacy Act of 1986 (ECPA) made significant changes to several sections of Title III.³⁴ The statute is now referred to as Title III, the ECPA, or the Federal Wiretap Act.³⁵ Section 2511 of Title III creates criminal liability for those who intentionally intercept a wire, oral, or electronic communication, or intentionally disclose the contents of the interception.³⁶ Section 2520(a) provides for a civil cause of action by "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used."³⁷ Each interception, use, and disclosure of the contents of any communication intercepted in violation of Title III creates a separate cause of action.³⁸ Title III also prohibits the use of the contents of any communication derived in violation of § 2511 as evidence in any proceeding.³⁹

b. Definitions

i. Wire and Electronic Communications

Title III defines "wire communication" as a transfer of the human voice made "in whole or in part by the aid of wire, cable, or other like connection between the point of origin and the point of reception."⁴⁰ This definition includes the transmitted portion of a cordless phone conversation.⁴¹ Protection of "electronic communications" was added in the 1986 amendments, which brought cellular telephones, electronic pagers, electronic mail, and electronic bulletin boards within the definition of wire communication and the coverage of Title III.⁴²

ii. Oral Communication

"Oral communication" is defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation."⁴³ As a result, a conversation or communication that is not carried by wire or any other electronic means is subject to an important restriction. Unlike a wire communication, an oral communication will not be brought within the protection of Title III unless the participants have a justified expectation of privacy.⁴⁴ In United States v. Clark, the Eighth Circuit Court of Appeals stated that "the inquiry is 1) whether the defendant manifested a subjective expectation of privacy, and 2) if so, whether society is prepared to recognize that expectation as reasonable."⁴⁵ Therefore, there is both a subjective and objective component to the expectation of privacy requirement for oral communications.⁴⁶

iii. Intercept

Title III defines "intercept" as the "aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device."⁴⁷ While this is a seemingly all-encompassing definition, its reach is circumscribed by § 2510(5)(a), which specifically exempts "any telephone" furnished to a subscriber for connection to a provider of wire or electronic communication, from the type of devices that can intercept communications.⁴⁸ This exception precludes civil or criminal liability under Title III when an individual uses an extension phone to listen to a conversation or other communication.⁴⁹ Despite the so-called extension phone exception, the Eighth Circuit has ruled that it is unlawful to attach a recorder or other device to an extension phone.⁵⁰

c. General Exceptions

i. Consent

The most significant exception to Title III relates to consent of a party to the communication. Section 2510(2)(d) makes it lawful for "a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent" to the interception.⁵¹ Therefore, even if a party to a conversation records a conversation without revealing this information to the other participants, there is no criminal or civil liability under Title III.⁵² The exception, however, is subject to an important limitation: it will not apply if the communication is intercepted "for the purpose of committing any criminal or tortious act."⁵³

ii. Acting Under Color of Law

Title III also provides an exception for anyone who is acting under color of law and is a party to the communication or has obtained prior consent of one of the parties.⁵⁴ This section allows federal and state officials to record the communications of informants and other individuals who cooperate with government agencies.⁵⁵ For this exception, there is no limitation regarding interception for the purpose of committing a criminal or tortious act.⁵⁶

iii. Common Carrier

Section 2511(2)(a) includes an exception for providers of electronic communication service. Employees of these providers are not liable for interceptions of communications if the activity is "necessary to the rendition of . . . service or the protection of the rights or property of the provider of that service."⁵⁷ Courts have held that this exception applies when telephone companies monitor calls as part of an investigation of fraud or misuse of phone lines.⁵⁸

d. Spousal Immunity:

A number of the civil actions under Title III have involved domestic or marital disputes and claims that spousal wiretapping is exempt from the statute.⁵⁹ Although the circuits are split on this issue, in Kempf v. Kempf, the Eighth Circuit Court of Appeals rejected these exemption claims and held that "the conduct of a spouse in wiretapping the telephone communications of the other spouse within the marital home, falls within [Title III's] purview."⁶⁰

e. Statutory Defenses

Section 2520(d) includes a statutory defense of good faith reliance on:

(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;

(2) a request of an investigative or law enforcement officer under section 2518(7) of this title; or

(3) a good faith determination that section 2511(3) of this title permitted the conduct complained of . . .⁶¹

There have been few reported cases dealing with § 2520(d). In Rice v. Rice, the Eighth Circuit Court of Appeals ruled that the good faith defense for reliance on § 2511(3) only applies to "cases involving a person or entity providing an electronic communication service to the public."⁶² The most commonly litigated issue under this section deals with claims of reliance on mistake of law. While the Eighth Circuit has not dealt with this issue, the First, Sixth, and Tenth Circuits all have held that a defendant's mistaken belief that a statutory exception applies does not provide a defense.⁶³

f. Damages in Civil Actions

Section 2520 of Title III provides for recovery of damages in civil actions brought for violation of § 2511.⁶⁴ Title III provides that courts "may assess as damages whichever is the greater of" the "actual damages suffered by the plaintiff and any profits made by the defendant", or "statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000." (emphasis added).⁶⁵ The Eighth Circuit Court of Appeals has held that this provision gives judges the discretion to decline to award statutory damages.⁶⁶ Courts have applied several factors in determining whether or not to award damages. These include consideration of the actual damage suffered by the plaintiff, whether the violation was de minimis, the financial burden on the defendant, and the purpose of imposing the award.⁶⁷

Punitive damages and attorney fees are also available under Title III. Section 2520(b)(2) provides for "punitive damages in appropriate cases."⁶⁸ To recover punitive damages in the Eighth Circuit, a plaintiff must prove "a wanton, reckless or malicious violation."⁶⁹ Section 2520(b)(3) allows for "a reasonable attorney's fee and other litigation costs reasonably incurred."⁷⁰ An award of attorney fees is within the discretion of the district court.⁷¹ If a court chooses to award attorney fees, however, certain standards apply. In Bess v. Bess, the Eighth Circuit Court of Appeals held that "at a minimum, an appropriate fee should account for the hours reasonably expended on the successful pursuit of damages . . ."⁷² The court also stated that it is within the district court's discretion to "exclude time spent in unsuccessfully seeking" statutory or punitive damages.⁷³

g. Statute of Limitations

Title III includes a two year statute of limitations in civil cases. Section 2520(e) states that "a civil action under this section may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation."⁷⁴

h. State Law Tort Claims Brought with Title III Claims

Plaintiffs have attempted to bring invasion of privacy tort claims along with their claims for violation of Title III.⁷⁵ These claims assert that the same acts which allegedly violated Title III also give rise to a common law claim for invasion of privacy.⁷⁶ While there is no case law directly on point in Missouri, it is likely that these type of claims would use the facts involving interception to demonstrate a prima facie claim for "intrusion upon seclusion," and the facts regarding disclosure to support a "publication of private facts" claim.

i Title III as a Basis for Prior Restraint of the Press

Although the Eighth Circuit has not dealt with this issue, both the First and Sixth Circuits have held that violations of Title III do not support prior restraint of the press in their exercise of First Amendment rights.⁷⁷

2 Section 605 Federal Communications Act (47 U.S.C. 605⁷⁸)

a. Introduction

Section 605 of the Communications Act of 1934 prohibits the use and disclosure of non-public radio transmissions and creates criminal and civil liability for violation of its provisions.⁷⁹ While this statute governed wire communications prior to the passage of Title III, all language concerning wires has been removed by amendment, except for a provision regarding regulation of communications personnel.⁸⁰ Radio transmissions include the messages sent by cordless phones, some types of cellular phones, pagers, and messages sent by fire, police, and other emergency agencies over the airwaves.⁸¹ While several circuits (including the Eighth) have held that oral communications sent by radio transmissions are covered by § 605, they have applied the expectation of privacy requirement from Title III to its provisions.⁸² Cases interpreting the meaning of "interception" parallel those of Title III.⁸³ Similar to Title III, interception of a communication by one of the parties or by someone who has gained consent of the parties is not unlawful.⁸⁴

b. Civil Causes of Action for Violations That Fall Within the Scope of Both Title III and Section 605:

Violations of section 605 that deal with wiretapping or bugging also fall within the parameters of Title III. There is no consensus, however, that an interception that falls under Title III also gives rise to a cause of action under § 605. In United States v. Davis, the Eighth Circuit Court of Appeals held that a defendant could be prosecuted under both Title III and section 605(a).⁸⁵ The court stated that "[w]hen two statutes cover the same conduct there is no implicit repeal of the earlier statute" and "the legislative intent to repeal must be manifest in the 'positive repugnancy between the provisions'."⁸⁶ Coupled with the Court of Appeals' extension of Title III's expectation of privacy requirement to § 605 in Tyler v. Berodt, it appears that a civil action for violation of both statutes may be brought in the Eighth Circuit.

The Eleventh Circuit, however, has held explicitly that passage of Title III has precluded any remedy under section 605 for violations which also fall within the more recent statute. In Watkins v. L.M. Berry & Co., an employee of a sales company brought suit against her employer for the interception and use (in firing her) of private conversations held while at work.⁸⁷ The Eleventh Circuit Court of Appeals affirmed dismissal of the § 605 claim and ruled that any private remedy that exists under this section "is superseded by the remedy provided by section 2520 of title III."⁸⁸ The legislative history appears to favor the Eleventh Circuit view. According to the Senate Report accompanying the legislation, "the regulation of wire or oral communications in the future is to be governed" by Title III.⁸⁹

c. Damages in Civil Actions

Section 605(e) creates a civil cause of action for violation of 605(a) and sets the appropriate damages.⁹⁰ These include: (1) an injunction if the court deems it reasonable, (2) an election by the aggrieved party of either (a) the actual damages and any profits attributable to the violation or (b) statutory damages of $1,000-$10,000 for each violation, and (3) costs and attorney's fees to the prevailing party.⁹¹

D. Federal Administrative Regulations

Two major federal regulations apply to this area and may subject entities which are licensed by the Federal Communications Commission (FCC) to sanctions. Penalties for violation of these regulations can include revocation of FCC broadcast licenses,⁹² forfeiture penalties,⁹³ and fines.⁹⁴ Violations of FCC regulations do not give rise to a private cause of action as the primary jurisdiction for enforcement is with the Commission.⁹⁵

a. 47 C.F.R. § 2.701: Prohibition Against Use of a Radio Device for Eavesdropping

This regulation prohibits any person from using certain devices to overhear or record private conversations.⁹⁶ Exceptions are made for situations where all parties agree to the recording or interception, and for law enforcement officers acting under lawful authority.⁹⁷

b. 47 C.F.R. § 73.1206: Broadcast of Telephone Conversations

Section 73.1206 requires an entity licensed by the FCC to provide notice to any party whom it intends to record for broadcast.⁹⁸ Such notice is not necessary, however, when the recorded party is aware that the conversation will be broadcasted.⁹⁹

E. Missouri Wiretap Act

In response to growing concerns about drug trafficking and rising crime rates, Missouri enacted what has become known as the "Missouri Wiretap Act" ("Missouri Act") in 1989.¹⁰⁰ The provisions are codified at §§ 542.400-542.424.¹⁰¹ The Missouri Act was modeled after Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and tracks many of its provisions. For example, the Missouri Act adopted Title III's requirement of a reasonable expectation of privacy in oral communications.¹⁰²

There are, however, important differences between the Missouri Act and Title III. Unlike Title III, the Missouri Act explicitly includes the recording "by one spouse of another spouse" in the definition of "interception."¹⁰³ Similar to Title III, the Missouri Act creates both criminal and civil causes of actions for violation of its provisions. There is, however, no civil liability for interception of "oral communications." Section 542.418(2) only allows private civil causes of action for persons "whose wire communication" have been intercepted.¹⁰⁴ The civil damages section of the Missouri Act, codified at § 542.418(2), mirrors the provisions of Title III. With regard to punitive damages, however, the Missouri Act appears to have a more relaxed standard. Section 542.418(2)(2)(b) requires a plaintiff to demonstrate a "willful or intentional violation" of its provisions.¹⁰⁵ As noted supra, the Eighth Circuit Court of Appeals has held that a plaintiff suing under Title III must prove "a wanton, reckless or malicious violation" in order to recover punitive damages.¹⁰⁶ Judges do not appear to have discretion to refuse to award statutory damages to a successful plaintiff. The Missouri Act provides that a successful plaintiff "shall . . . [b]e entitled to recover" the statutory damages.¹⁰⁷ Despite the plain language, it is not clear how the change from "shall" to "may", included in the 1986 amendments to Title III, will affect judicial interpretation of the Missouri provision. When analyzing this issue, two additional points should be considered. First, Missouri enacted its wiretapping statute, and the mandatory statutory damages provision contained therein, in 1989 -- three years after the federal statute was amended to afford courts discretion in determining whether statutory damages are warranted. Second, Title III's legislative history indicates that federal law preempts state law only to the extent it provides for less stringent wiretap standards than the federal act, but not where state law imposes more restrictive standards.¹⁰⁸ These considerations suggest that courts do not have discretion over whether to award statutory damages under the Missouri Act.

The only other major difference between the Missouri Act and Title III deals with the consent exception in the criminal context. While Title III states that interception of any type of communication is lawful if either party consents, the Missouri Act only provides an exception for consent with regard to wire communications.¹⁰⁹ Thus, if someone intercepts an oral communication, consent will not present a defense to a criminal charge under the Missouri Act.¹¹⁰ Because of the lack of case law interpreting the Missouri Act, it is not clear how courts will interpret this provision.

There appears to be only one reported Missouri case dealing with this statute. In State v. King, a defendant appealed his conviction for possessing a controlled substance.¹¹¹ He claimed that a syringe containing methamphetamine should have been suppressed because it was obtained in violation of the Missouri Act.¹¹² The defendant's neighbor was listening to her police scanner and heard the defendant discussing a drug deal on a cordless phone.¹¹³ The neighbor called the police who responded and found a syringe on defendant's person.¹¹⁴ The Missouri Court of Appeals noted that it could not locate any cases construing the Missouri Act and looked to cases interpreting Title III.¹¹⁵ At the time this case was decided, Title III specifically excluded cordless phone conversations from the definition of wire communication.¹¹⁶ Therefore, the court concluded that the conversation on a cordless phone was an "oral communication" and thus subject to the expectation of privacy limitation included in both Title III and the Missouri Act.¹¹⁷ Ultimately, the court affirmed the conviction because cases decided under Title III had ruled that as a matter of law, participants in cordless phone conversations have no expectation of privacy.¹¹⁸

F. State Common Law

State common law also imposes limits on newsgathering. Again, the press is not shielded by the First Amendment from civil or criminal liability under laws of general applicability.¹¹⁹ Consequently, wiretapping, eavesdropping and filming with hidden cameras can also subject media organizations to various state common law tort claims, including invasion of privacy.¹²⁰ Consequently, state tort law also must be considered before engaging in undercover investigation and surreptitious electronic newsgathering.

The recent case of Food Lion v. Capital Cities/ABC, Inc. illustrates the creative and increasingly common approach whereby the targets of undercover investigative reporting have sought to impose liability on newsgathering organizations under tort theories that seemingly are devoid of First Amendment obstacles to defamation liability. In Food Lion, the plaintiff alleged that PrimeTime Live, as part of an undercover investigation, falsified employment applications to enable its reporters to gain access to and film with hidden cameras the non-public aspects of Food Lion's operations. Rather than sue for defamation based on the resulting news story, Food Lion sued Capital Cities/ABC, Inc. for state tort law¹²¹ violations of intentional misrepresentation, deceit, fraud, negligent supervision, trespass and breach of fiduciary duty, all based on PrimeTime Live's newsgathering methods. Food Lion also alleged that ABC violated North Carolina's unfair and deceptive trade practices statute.¹²²

The fact that courts have recognized such causes of action does not mean that Plaintiffs can dodge the requirements for establishing a libel or defamation claim by artful pleading. On the contrary, courts generally will not permit a plaintiff to recover reputational or publication damages pursuant to a tortious newsgathering claim without first negotiating the First Amendment obstacles to recovering such damages.¹²³ Despite this significant remedial restriction, newsgathering tort claims have become increasingly more common. Therefore, this section will survey Missouri law regarding the various state law tort claims asserted in Food Lion and in other recent cases in which plaintiffs have contended that a media representative's newsgathering was tortious.

1. Trespass

To prevail on a trespass claim in Missouri, a plaintiff must plead and prove a direct physical interference with the person or property of another.¹²⁴ Consent, whether express or implied, is a complete defense to an action for trespass.¹²⁵ While no Missouri court has recognized trespass as a remedy when representatives of the media obtain hidden camera footage, courts in other jurisdictions have sanctioned trespass as a cognizable claim to redress injuries sustained as a result of unauthorized or surreptitious filming by members of the broadcast media.¹²⁶

In Food Lion, the court discussed the elements of and defenses to a trespass claim based on hidden camera newsgathering. In arguing that Food Lion had consented to ABC's entry onto Food Lion property by hiring ABC employees to work there, ABC relied extensively on Desnick v. American Broadcasting Co.¹²⁷ In Desnick, PrimeTime Live reporters took hidden camera footage of the plaintiff's eye clinic operations while posing as patients of the clinic.¹²⁸ The Seventh Circuit upheld the district court's dismissal of the plaintiffs' trespass claim based on these allegations, reasoning that the ABC employees posing as patients, despite gaining access to the clinic without disclosing their true intentions, did not invade "any of the specific interests that the tort of trespass seeks to protect."¹²⁹ More specifically, a trespassory invasion was not committed because the eye clinic was a business establishment open to the public and its activities were not disrupted by PrimeTime Live's undercover investigation and concealed filming.¹³⁰ The reporters did not tape any private conversations or steal the clinic's trade secrets.¹³¹ Thus, despite plaintiffs' allegations of the undercover reporters' misrepresentations or misleading omissions, the court held that the claim of trespass was not cognizable.¹³²

The court in Food Lion distinguished Desnick in rejecting ABC's motion for summary judgment as to Food Lion's trespass claim. The court first rejected ABC's claim that Food Lion's trespass claim was barred by the First Amendment.¹³³ The court then found Desnick distinct and summary judgment unwarranted because the ABC employees' alleged fraud, unlike that of the phony eye patients in Desnick, enabled them to gain access to the private precincts of Food Lion's operations and, akin to trade secret theft, steal or "tak[e] ... images which would have been unavailable absent misrepresentations which provided entry into restricted portions of Food Lion stores ...."¹³⁴ The court alternatively found that even if Food Lion had consented to ABC's entry, a jury question remained as to whether the ABC employees posing as Food Lion workers had exceeded that consent by thereafter engaging in wrongful conduct; i.e., "recording undercover footage," or otherwise acting outside the scope of Food Lion's consent.¹³⁵

It should be noted that reputational and emotional damage are not recoverable in an action for trespass.¹³⁶ Punitive damages, however, are available.¹³⁷

2. Invasion of Privacy: The Tort of Intrusion

Missouri recognizes the privacy tort of intrusion upon seclusion.¹³⁸ To prevail on such a claim, a plaintiff must plead and prove the following elements: (1) the existence of a secret and private subject matter; (2) a right possessed by plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter by defendant through some method objectionable to the reasonable man."¹³⁹ While no Missouri state court has done so,¹⁴⁰ at least one federal court sitting in Missouri has addressed this tort in the newsgathering context.¹⁴¹ In addition, other jurisdictions have expressly recognized it as an appropriate vehicle to vindicate the privacy interests implicated by surreptitious recording or filming.¹⁴²

In W.C.H. of Waverly v. Meridith Corp., the court granted summary judgment against a corporate plaintiff on its claim for intrusion upon seclusion.¹⁴³ In that case, the plaintiff, a hospital which operated an alcohol and drug rehabilitation center, alleged that a television station and its reporter had "intruded upon the seclusion of its business" when the reporter gained access to the center by posing as an alcoholic in the course of an undercover investigative report.¹⁴⁴ The court rejected this claim because, under Missouri law, the right of privacy is an individual right that does not extend to corporations.¹⁴⁵

No such infirmity handicapped the individual plaintiffs in Wolfson v. Lewis,¹⁴⁶ in which the court reached the merits of the plaintiffs' intrusion claim and discussed the contours of that tort as it applies to newsgathering via electronic surveillance. In that case, the Wolfsons, the daughter and son-in-law of Leonard Abramson, the chairman and chief executive officer of U.S. Healthcare, sought to enjoin the newsgathering activities of reporters for the television news program Inside Edition. The Wolfsons were high ranking officers of U.S. Healthcare. The reporters, Lewis and Wilson, were working on an expose on the high salaries being paid to U.S. Healthcare executives. After being rebuffed by U.S. Healthcare in their efforts to obtain an on-camera interview of Mr. Abramson or any other executive, the reporters "developed and began to implement a plan to engage in surreptitious surveillance of the" plaintiffs.¹⁴⁷ In an effort to obtain an ambush interview of the Wolfsons, Lewis and Wilson stationed themselves outside the Wolfson's home for several days and followed them in a van with blackened windows. As a result, the Wolfsons and their small children claimed they were forced to flee to the Abramson family vacation home in Florida in an attempt to seclude themselves and avoid the reporters' surveillance. Undeterred, the reporters followed the Wolfsons and camped outside the vacation home in a boat anchored in a waterway adjoining the residence. From the boat, Lewis and Wilson used a video camera and a 'shotgun mike' to film and record the images and sounds at the Abramson home.

On these facts, the court granted the Wolfsons' request for a preliminary injunction. While the court's ruling hinges primarily on the reporters' "persistent course" of Galella-like hounding and harassing newsgathering and other aggravating circumstances,¹⁴⁸ it proceeds in part from Wilson's and Lewis's use of electronic surveillance and recording, which the court described as "physical and sensory invasions."¹⁴⁹ After first noting that the tort of intrusion "does not apply to matters which occur in a public place or a place otherwise open to the public eye,"¹⁵⁰ the court nonetheless found it likely that "a jury would find that Mr. Wilson's and Mr. Lewis's use of the 'shotgun mike' under the circumstances outlined here was an unreasonable intrusion upon the Wolfson's seclusion."¹⁵¹ In so doing, the court rejected the reporters' argument that their conduct constituted routine newsgathering that was entitled to First Amendment protection. The court reached this conclusion because of the "likelihood that a jury could determine that Mr. Wilson and Mr. Lewis harassed and invaded the Wolfsons' privacy not, as defendants claim, for the legitimate purpose of gathering and broadcasting the news, but to try and obtain entertaining background for their T.V. expose ...."¹⁵² With this comment, the court perhaps betrayed a prejudice, shared by at least one other court, against tabloid television journalism which it perceived as somehow less noble and thus less deserving of constitutional protection.¹⁵³ Given the occasional judicial reluctance to entertain First Amendment privilege defenses from practitioners of this journalistic style, particular care should be exercised when using electronic surveillance in pursuit of a tabloid style story. Still, the Wolfson court suggested that it may be solicitous of a First Amendment defense when an intrusion occurs in the course of gathering the news.

The case law is scarce with respect to damages for intrusion because most cases are disposed of on liability grounds. In at least one case, however, the court indicated that when the harm to the plaintiff flows from publication, not from the filming or recording itself, the element of damage is not satisfied and the intrusion claim fails.¹⁵⁴

3. Fraud or Misrepresentation

To sustain a claim of fraudulent misrepresentation under Missouri law, a plaintiff must plead and prove the following nine (9) elements: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of its falsity, or his ignorance of its truth, (5) the speaker's intent that it should be acted on by the person and in the manner reasonably contemplated, (6) the hearer's ignorance of the falsity of the representation, (7) the hearer's reliance on the representation being true, (8) his right to rely thereon, and (9) the hearer's consequent and proximately caused injury.¹⁵⁵ Failure to establish any one of these elements is fatal to a fraud claim.¹⁵⁶

While no Missouri state court has confronted a fraud claim predicated on allegedly wrongful newsgathering, the court in W.C.H. addressed and recognized the viability of a such a claim.¹⁵⁷ There, the plaintiff hospital asserted a fraud claim based on the reporter's posing as an alcoholic to gain entry into the hospital. While the court did not discuss the fraud claim in detail, it nonetheless rejected the defendant's motion for summary judgment and allowed the plaintiff to proceed to trial on that claim. In their motion, the defendants argued that the plaintiff suffered no damage because "plaintiff did not deviate from its normal routine when it responded to defendant's undercover investigation."¹⁵⁸ The W.C.H. court rejected this argument because its resolution turned on genuine issues of material fact. However, such an argument has proved fruitful on an appropriate factual record in defending a fraud claim based on an undercover investigation.¹⁵⁹

4. Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional distress in Missouri, a plaintiff must plead and prove "extreme and outrageous conduct by a defendant who intentionally or recklessly causes severe emotional distress that results in bodily harm."¹⁶⁰ No Missouri case, however, has explored the applicability of an emotional distress claim to undercover investigative reporting, surreptitious filming or eavesdropping.

In Medical Laboratory Management Consultants v. ABC,¹⁶¹ the plaintiff corporation brought a claim for intentional infliction of emotional distress based on PrimeTime Live's undercover, hidden-camera newsgathering. Citing Desnick¹⁶² the court held that "conduct found not to be actionable by a federal court in a like context cannot, as a matter of law, be deemed 'outrageous' here."¹⁶³ On that basis, court therefore granted ABC summary judgment as to the plaintiff's emotional distress claim. It should also be noted that, while not addressed by the court in Medical Laboratory, an emotional distress claim likely is not available to a corporation.¹⁶⁴

5. Tortious Interference with Contractual Relations

To state a claim for tortious interference with contract or business expectancy in Missouri, a plaintiff must plead and prove the following elements: (1) a contract or valid business expectancy; (2) defendant's knowledge of the contract or expectancy; (3) intentional interference by the defendant inducing or causing a breach of the contract or expectancy; (4) absence of justification; and (5) damages.¹⁶⁵ "Absence of justification is the absence of any legal right on the part of the defendant to take the actions about which plaintiff complains."¹⁶⁶ No Missouri court has examined the application of this tort to surreptitious newsgathering.

A media organization is most likely to be faced with a claim for tortious interference when, in the course of an undercover investigation, it persuades an employee of a suspected corporate wrongdoer to carry a hidden camera or microphone to record surreptitiously the corporation's actions.¹⁶⁷ If the employee has entered into a confidentiality agreement with her employer, the corporation may claim that the media organization tortiously interfered with that agreement by inducing its breach to obtain confidential corporate information.¹⁶⁸

One approach to defending such a claim is to attack the validity of the underlying contract; i.e., the confidentiality agreement. This defense asserts that a confidentiality agreement that operates to prevent an employee from disclosing corporate crimes or other corporate conduct injurious to the public health, safety and welfare is unenforceable because it violates public policy.¹⁶⁹ Another defense available to a media defendant is that its conduct in speaking with the employee is justified as an exercise of the constitutional right to gather news. Such an argument can be particularly compelling in Missouri, where it is the plaintiff's burden to prove absence of justification.

Even if the plaintiff cannot show that the media defendant's actions are not justified, the plaintiff still can sustain his claim if he can demonstrate that the interference was accomplished by wrongful means.¹⁷⁰ Wrongful means, for purposes of tortious interference under Missouri law, are those means which are independently wrongful, such as "misrepresentation of facts, threats, violence, defamation and restraint of trade."¹⁷¹ Of these, misrepresentation and defamation are potentially the most troubling for a media defendant seeking to persuade an employee to wear a hidden microphone or camera. Because such wrongful conduct could override the newsgathering justification for the interference, an undercover investigative reporter must exercise acute care in making his or her sales pitch to the potential employee informer to avoid overstating the abuses of his employer or mischaracterizing the nature of the undercover investigation.

Moreover, at least one court has found that an offer to indemnify the party induced to breach the contract constitutes wrongful means.¹⁷² Such authority may have been of particular concern to CBS's lawyers in the Brown & Williamson matter because CBS had agreed to indemnify the former employee for any claims brought against him by his former employer. Nonetheless, it seems doubtful that an offer to indemnify would constitute wrongful means under Missouri law, in that such an offer would appear unlikely to qualify as an independently wrongful act.

6. Unlawful Disclosure of Trade Secrets

In Federal Beef Processors, Inc. v. CBS, Inc.,¹⁷³ the plaintiff, a target of a 48 Hours hidden camera undercover investigation, filed a claim for violation of South Dakota's version of the Uniform Trade Secrets Act. In that case, a Federal Beef employee had worn a hidden camera to work to document abuses by his employer of federal meat packing regulations. The employee provided the tape to CBS. In its trade secrets claim, Federal Beef alleged that publishing videotape of the interior of Federal Beef's meat packing plant would result in public dissemination of Federal's confidential and proprietary meat packing practices and processes. The court preliminarily enjoined the publication of the videotape.¹⁷⁴

Missouri has adopted the Uniform Trade Secrets Act.¹⁷⁵ Under the Act, a person is entitled to injunctive relief¹⁷⁶ or damages¹⁷⁷ or both for misappropriation of a trade secret. The Act defines "trade secret" as

information, including but not limited to, technical or nontechnical data, a formula, pattern, compilation, program, device, method, technique or process, that

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The Act's definition of "misappropriation" is lengthy;¹⁷⁸ suffice it to say for present purposes that on an appropriate record the definition appears to encompass at least facially the acquisition of a trade secret through use of a hidden camera or microphone and subsequent disclosure of that trade secret by anyone who so acquired it.¹⁷⁹ The crux of the statutory violation is use of improper means to acquire the trade secret, or knowledge¹⁸⁰ that it was acquired through improper means. "Improper means" is defined to "include[] theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means." As such, surreptitious newsgathering activities that constitute such improper means and by which a trade secret is misappropriated may be subject to sanctions under this statutory scheme.

7. Claims for Pre-Publication Injunctive Relief: Prior Restraints

In two recent cases, plaintiffs have attempted to enjoin publication of information that allegedly was obtained by reporters in violation of state tort law or court order. This kind of injunctive relief imposes a prior restraint upon speech, the paradigmatic First Amendment violation.¹⁸¹ A prior restraint faces judicial review "with a heavy presumption against its constitutional validity."¹⁸² Notwithstanding this heavy presumption against prior restraints, at least four courts have imposed prior restraints upon publication because of their concern about the manner in which the information sought to be published was obtained.¹⁸³

In Federal Beef, the plaintiff successfully obtained a preliminary injunction preventing the publication of a news story containing information that the plaintiff alleged had been acquired by CBS in violation of state tort law. The Supreme Court¹⁸⁴ stayed the injunction because it was an impermissible prior restraint.¹⁸⁵ The Court held that "[i]f CBS has breached its state law obligation, the First Amendment requires that Federal remedy its harms through a damages proceeding rather than through suppression of protected speech."¹⁸⁶

In Proctor & Gamble Co. v. Bankers Trust Co.,¹⁸⁷ the court restrained McGraw-Hill Companies, Inc., the publisher of Business Week magazine, from publishing a story that included information that had been gleaned from documents filed in federal court subject to a protective order. The information was not obtained through surreptitious electronic newsgathering, but rather from a source at the law firm that represented Bankers Trust in the lawsuit. The district court imposed a temporary restraining order precluding Business Week from running the story. McGraw-Hill sought an emergency stay of that order from the Sixth Circuit Justice, Justice Stevens. In an unusual development, Justice Stevens denied McGraw-Hill's request to stay the restraining order and instead remanded the case to the lower court for a fact-finding hearing on the matter to determine the manner by which McGraw-Hill obtained the information.¹⁸⁸ After the hearing, the district court held that Business Week could not "use the confidential materials that it obtained unlawfully" in violation of the protective order. McGraw-Hill appealed. The Sixth Circuit reversed and vacated the TRO as an impermissible prior restraint.¹⁸⁹

These cases at once illustrate the virtual impossibility of ultimately preventing publication of a story that contains allegedly wrongfully obtained information and the possibility of exploiting unsavory media newsgathering conduct to convince a lower court to grant temporary relief imposing such a prior restraint. Nonetheless, the ultimate judicial resolutions in Federal Beef and Proctor & Gamble provide ample precedent to repel any attempt to restrain publication of a story containing information gathered through surreptitious newsgathering.

1. Pearson v. Dodd, 410 F.2d 705 (D.C. Cir. 1969) ("the intruder should generally be liable whatever the content of what he learns. An eavesdropper to the marital bedroom may hear marital intimacies, or he may hear statements of fact or opinion of legitimate interest to the public; for purposes of liability that should make no difference.").

2. Dietmann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971). See also Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) ("generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather news."); Davis v. Schuchat, 510 F.2d 731 (D. D.C. 1975) (First Amendment does not immunize reporter f