Reach Out and Tape Someone

By Alain L. Sanders

Don't talk about good neighbors to Scott Tyler -- especially on the telephone. First two of his neighbors in Dixon, Iowa, accidentally eavesdropped on his private telephone calls. Then, mistakenly believing Tyler was discussing drug deals, they informed the county sheriff's office. Supplied by an investigator with recording equipment, the neighbors proceeded to tape more than 20 cassettes of Tyler's phone conversations over the next few months. Although they never turned up a shred of evidence about drug sales, the tapes did help raise suspicion about some illegal personal business dealings.

In 1984 Tyler was tried and convicted for theft and conspiracy, and served four months behind bars. Refusing to let the matter end there, however, he slapped a $53 million suit on the two neighbors and the county for intercepting and recording his private conversations without a search warrant.

If Tyler had been using a conventional telephone, his case would probably < have been solid. Unfortunately for him, the phone was a cordless model. Not only did that allow his neighbors to intercept his communications -- unwittingly at first -- on their own cordless unit, it apparently left him with virtually no legal protection. Citing precedents from other cases, two lower federal courts ruled that it was not necessary to obtain a warrant before surreptitiously listening to cordless phone conversations. Congress reached the same conclusion in 1986, specifically refusing to impose a warrant requirement on "the radio portion of a cordless telephone communication." Tyler has now taken his case to the U.S. Supreme Court, charging that his Fourth Amendment protection against unreasonable searches has been violated. Next week the high bench is expected to announce whether it will hear his case.

What the Supreme Court decides to do will be of more than passing interest to the 21 million American households that have cordless phones. The prevailing legal rationale holds that cordless users have no "reasonable expectation" of privacy because their phones -- unlike standard wire phones and sophisticated cellular devices -- transmit radio signals between a handset and a base unit that occasionally can be intercepted by other cordless phones or even by shortwave radio sets. As a result, Federal Communications Commission rules require that cordless phones carry a no-privacy warning.

To some experts, the broadcast basis of cordless phone transmissions largely settles the matter. Says lawyer Mark Cleve, who is defending the neighbors and the county in Tyler's case: "Persons with cordless phones have every reason to know that their communications can be easily overheard." Concurs Professor George Trubow of the John Marshall Law School in Chicago: "It's a buyer- beware situation. If you buy new technology, you ought to understand the risks."

Such reasoning does not impress cordless users like Tyler, who insists that "a cordless phone is just a high-tech extension phone." Argues one of his lawyers, Randall Wilson: "It is not the intention of those who purchase cordless phones to broadcast to a large number of people. Persons should not be forced to waive their rights in order to participate in a technology-driven society." Many civil libertarians and privacy-law experts agree. Says Harvard University law Professor Alan Dershowitz: "It is preposterous to make our legal rights turn on the physics of how the voice is transmitted."

To many legal observers, the cordless-phone controversy is part of a larger trend that is weakening the right of privacy. "Communication or activity that may be accidentally heard or seen is now increasingly perceived as no longer deserving a reasonable expectation of privacy," warns Stanley Ingber, a Drake University law professor.

Unless the Supreme Court or Congress sees fit to provide stronger protections, anyone using a cordless phone could wind up broadcasting his personal conversations to the world. Consider the consequences next time you call your spouse, your business partner, your stockbroker -- or your lawyer.

CHART: NOT AVAILABLE

CREDIT: TIME Diagram by Joe Lertola

CAPTION: CROSSED CALLS

With reporting by Andrea Sachs/New York