Roger Dwain Epps, Samuel Lilburn Stone, III v. St. Mary's Hospital of Athens, Inc.

KRAVITCH, Circuit Judge,

concurring in part and dissenting in part:

I part company with the majority solely on the issue of whether appellees satisfied the “during the ordinary course of business” element of the telephone extension exception embodied in 18 U.S.C. § 2510 (5). Because I do not agree that Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983) controls this issue, I respectfully dissent.

Watkins and Briggs v. American Air Filter, 630 F.2d 414 (5th Cir.1980) provide useful guidelines for corporate personnel who wish to monitor employee phone calls within the boundaries established by the federal wiretapping statute: in the ordinary course of business, business calls may be monitored and personal calls may not. I disagree with the majority’s analysis, however, in that it relies on appellants’ conduct and conversation to determine that Smith’s actions were in the ordinary course of business.

Congress enacted the wiretapping statute to punish and deter eavesdropping; it did not parse conversations into protected and unprotected categories. The content of a monitored conversation, while significant, is not dispositive. Although common sense dictates that only a business call would be monitored during the course of business, determining that a business call has been monitored does not end our inquiry. We should also scrutinize Congress’ real target: the eavesdropper.

Case law suggests that Smith’s eavesdropping was not the sort of activity Congress intended to immunize. In Briggs a supervisor legitimately monitored the conversation of an employee he suspected of divulging business secrets to competitors. In Watkins we indicated that an employer may, pursuant to an announced policy, randomly monitor the telephonic business solicitations of its employees. Crucial to both analyses is that, in order to be beyond the statute’s reach, the eavesdropper must have a legitimate business purpose and authorization 1 to intrude on employee privacy. See also James v. Newspaper Agency Corp., 591 F.2d 579, 581-82 (10th Cir.1979). The present case is inapposite. Here, Smith was not authorized to operate the dispatch console from which she monitored the Stone and Epps conversation and nothing in the record suggests that her eavesdropping was pursuant to her duties at St. Mary’s Hospital.

More important, Smith did not monitor the conversation for a legitimate business purpose. A call must be more than merely related to business; the monitoring must advance a legitimate business purpose. See Watkins, 704 F.2d at 582 (“The phrase *418 ‘in the ordinary course of business’ cannot be expanded to mean anything that interests a company.”). Smith took it upon herself to relieve another employee at the dispatch console to record the conversation for her employer because she knew Stone was talking to Epps about an upcoming meeting with the hospital’s personnel department and “sounded upset.” She testified that she had not listened to the conversation as she recorded it. An eavesdropper, however, cannot evade the federal statute by asserting that her employer might be interested to know that two of its employees were conversing about their employment and one sounded upset. Moreover, Smith’s post hoc rationalization that her activity was in the ordinary course of business because St. Mary’s might be interested in knowing that its payroll included two disgruntled bigots with crude vocabularies is irrelevant. Even if this rationalization were a legitimate business concern, the conversation was not recorded for that purpose. The legitimate business purpose must exist at the time the conversation is recorded. At the time the call was recorded, Smith was unaware of the conversation’s contents and had not bothered to determine whether she was improperly recording a personal phone call. My reading of the record suggests that Smith was engaged in a fishing expedition to gather material that could be used to oust Stone and Epps from their employment at St. Mary’s. 2 As such, the conversation was not recorded in the ordinary course of business.

In sum, the wiretapping statute exempts those who monitor a narrow class of conversations for legitimate reasons; it does not immunize busybodies and malicious gossips. I agree with the majority that Epps’ and Stone’s conversation was scurrilous and reprehensible. I believe, however, that Smith’s conduct was also reprehensible and, unlike Stone and Epps, her conduct was proscribed by the federal wiretapping statute. I would reverse and remand for a determination of damages, if any.

. Authorization may be explicit, see Watkins , or implied, see Briggs. Express authorization, however, is neither a prerequisite to legitimate monitoring or a talisman that automatically legitimates monitoring. A whistleblower might properly monitor the call of a co-worker divulging trade secrets without prior authorization: the authorization in that case would be implicit. On the other hand, no amount of authorization short of employee consent would justify the monitoring of personal calls. Express authorization is merely one factor in our analysis.

. When asked why she had recorded the call, Smith testified:

You can call it an inquisition and I have a concern with our department in a sense. In our field you cannot have any anguishes ... out in the open if you have to work together all the time ... it was something that I could justify and bring to whosever attention I needed to bring it to.