504, 706 A.2d 264 (1998), and two state courts have addressed the issue under both the state and federal statutes, Williams v.
W.2d 777 (1998) and West Virginia Dep't of Health & Human Resources v.
As we conduct our analysis, it is important to be cognizant of the fact that the tape recordings by Sandra Pollock that form the basis of this lawsuit occurred in the context of a bitter and protracted child custody dispute. According to Sandra, it was this concern for Courtney, who was fourteen years old at the time, that caused her to place a tape recorder on her extension telephone in her bedroom to monitor the telephone activity at her house. During the course of the monitoring, Sandra heard a conversation between Courtney and Laura “which greatly alarmed and frightened” her and “gave [her] immediate concern for the safety and well being of 3 other individuals and confirmed to [her] the abuse and emotional injury and harm she suspected Courtney was being subjected to.” J. Courtney began, as is not unusual for a teenager to do, to let off steam, even to the point of remarking-in obvious jest and with no semblance of seriousness-that she would like to kill “the two of them,” referring to Oliver Barber and Luann Glidewell [Sandra's attorneys]. According to Laura, neither she, nor Courtney, took this conversation seriously, “as is obvious to anyone who would listen to the tape recording.” Id. According to Samuel and Laura, Sandra was not motivated by concern for Courtney when she recorded the phone conversations. Laura further contends that immediately before the recording began, Sandra discovered Courtney's diary, in which Courtney had recorded that she was being represented by counsel (hired by her father Samuel), Rebecca Ward, incident to the then on-going dispute as to Courtney's custody. At about the same time, someone had reported my mother to the authorities for possible abuse and neglect of me and my brothers.” J. I was not happy at all living with my mother, and so told Judge Morris when he interviewed me․The decision which Judge Morris made, against my wishes, to require me to live with my mother led to the further deterioration of my relationship with her.” J. Samuel and Laura filed their amended complaint on January 16, 1996. § 2511(1)(a) by intentionally intercepting telephonic communications between two parties without either party's consent. § 2511(1)(b)-(d) by intentionally using and disclosing the contents of these communications to third parties.
Accordingly, we begin with a summary of the events leading up to, and relating to, the tape-recording of the conversations by Sandra Pollock. Laura and Courtney contend that Courtney told Sandra that Courtney had recorded a conversation with her mother from her father's home, with Samuel and Laura's knowledge and consent. In equal jest, I joined in her sentiments, adding Judge Morris to the “hit list.”J. Because Sandra was disturbed by this conversation, she reported it to her attorney, Oliver Barber. Instead, they contend that Sandra was angry that Courtney had taped a conversation between herself and Sandra with Samuel and Laura's consent, and “wanted to return the favor by taping Courtney's conversations with Sam and [Laura].” J. Counts 1-5 of the amended complaint allege that Sandra violated 18 U. Counts 6-11 allege that Sandra, Barber, and Glidewell violated 18 U. Samuel and Laura also allege a violation of their right to privacy under Kentucky common law. Because the court found that Sandra's interceptions of the phone conversations were not unlawful, the district court granted summary judgment as to the claims against Sandra, Barber, and Glidewell for distribution and use of the tapes.
The court based this decision on the reasoning found in Thompson v.
Accordingly, the court held that Sandra did not violate Title III.
Murdock, 63 F.3d at 1396 (“[W]e conclude that the recording mechanism (a tape recorder connected to extension phones in Mrs.
Reading this extension phone exemption as a whole, then, it is no lexical stretch to read this language as applying to a “subscriber's” conduct-or “business”-in raising his or her children. In 1995, however, this Court expressly rejected the line of cases holding that the extension exemption extended to the home in United States v. Instead, this Court held that the statute did not permit the sort of extension phone recordings at issue in this case. In Thompson, a mother, who had custody of her three and five-year-old children, recorded conversations between the children and their father (her ex-husband) from a telephone in her home.
Plaintiffs allege that Sandra and her attorneys violated Title III when: (1) Sandra taped conversations between Courtney and Plaintiffs; (2) Sandra disclosed these conversations to her attorneys; and (3) Sandra and her attorneys disclosed these conversations to the CACU.
The court did, however, make the test for valid vicarious consent more stringent than the one set forth in Thompson, in that it specifically required the parent to have a “good faith basis that it is objectively reasonable to believe that the minor child is being abused, threatened, or intimidated by the other parent,” Silas, 680 So.2d at 371 (emphasis added), as opposed to the Thompson court's requirement of “a good faith basis that is objectively reasonable for believing that it is necessary ․ [and] in the best interests of the [child].” 838 F.
In Silas, the court held that a father had authority to consent on behalf of his seven-year-old son to taping phone conversations with the child's mother, pursuant to Alabama's version of the federal wiretap statute. The district court in the instant case adopted the test as set forth in Thompson.
The only federal courts to directly address the concept of vicarious consent thus far have been a district court in Utah, Thompson v.
Indeed, while other circuits have addressed cases raising similar issues, these have all been decided on different grounds, as will be discussed below.
Before: BATCHELDER and COLE, Circuit Judges; Mc CALLA, District Judge.*Samuel Manly (argued and briefed), Louisville, KY, for Plaintiffs-Appellants. Gailor (argued and briefed), Louisville, KY, for Defendants-Appellees. For the reasons set forth below, we AFFIRM IN PART and REVERSE IN PART the judgment of the district court. Samuel Pollock (“Samuel”) and his current wife, Laura Pollock (“Laura”), are Plaintiffs-Appellants in this matter.