There is one potential argument that other district attorneys could make when faced with demands for payment for incoming call detail requests.
In this case, McCann argued that governmental entities apply only to federal agencies, not state or local ones. A slight variation of the argument could still prevail: governmental entities, as used in sec. 2706(a), applies to federal and local governments, but not state ones.
Judge Randa rejected McCanns argument, citing numerous decisions in which non-federal governmental entities have been found liable for violating the Federal Wiretap Law.
However, all those cases involve municipal governments; none involve a State.
Prior to the 1986 amendments, the law applied only to persons, not entities. Person was defined as any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation. Governmental agencies themselves were not in the definition.
As Randa found, the 1986 amendments, by including entities, have been widely interpreted to permit civil suits against governmental entities. However, it is arguable that Congress intent was not to permit suit against states (or against officials such as McCann in his official capacity, as this suit was captioned).
Nothing in the 1986 amendments can be found to express an unequivocal intent to abrogate the states sovereign immunity. Such intent must be obvious from a clear legislative statement Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996).
As noted, Randa denied McCanns Tenth Amendment argument. Nevertheless, a variation of the Tenth Amendment argument is still relevant to congressional intent, because neither the state nor McCann could be sued for a unlawful wiretap.
Randa cited to numerous provisions of sec. 2703 and suits against municipalities to demonstrate legislative intent that municipalities and states be subject to the ECPA.
However, if a State (or a state officer in his official capacity) cannot be sued for a wiretap in violation of sec. 2703, but local governments can, and the definition of governmental entity is the same in sec. 2706 as it is in sec. 2703, then arguably, it was Congress intent that only local governments, but not states, could be compelled to pay for records pursuant to sec. 2706, even if the Tenth Amendment may not provide immunity.
– David Ziemer
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David Ziemer can be reached by email.