T. Greg Doucette: “DPI personnel would be found guilty if they were prosecuted” in intercepted text message case

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According to Durham attorney T. Greg Doucette–of #SilentSham fame–the individual(s) at the Department of Public Instruction who allegedly intercepted personal text messages of retired K-3 Literacy Director Carolyn Guthrie would likely be found guilty if a prosecutor chose to pursue an indictment.

A text message containing confidential information about North Carolina’s K-3 reading assessment procurement was used by Superintendent Mark Johnson as a basis for cancelling the procurement process last year. Johnson eventually awarded the contract to Istation.

Questions have since been raised about whether the message was obtained through improper monitoring of a former employee’s personal communications. Superintendent Johnson has publicly mocked the allegations, and DPI’s Director of Communications Graham Wilson has referred to them as “blogger conspiracies.”

However, interception of electronic communications could constitute a violation of state law.

Here are Greg Doucette’s thoughts on how the matter might play out in court if whoever monitored the text messages is prosecuted:

So when a potential client meets with me because they’ve been charged with a crime, part of that consultation focuses on 3 key things:

==> (1) Is there a missing element to the crime? <==

Every criminal statute has certain pieces to it that have to be met, where the defendant’s conduct has to “match” what is prohibited; lawyers call these required pieces “elements.” If the person’s conduct doesn’t match up with every element – if a single element is missing for any reason – the person can’t be convicted of that particular crime. 

For example, you can’t be convicted for possession of a controlled substance if the thing you possessed is not a controlled substance. Common sense.

==> (2) Is there an exception? <==

If the person’s conduct matches up with each of the elements of the crime, the next step is to look for an exception (a “loophole”). Most statutes have exceptions written in for various things, making normally-criminal conduct acceptable in certain situations.

For example, you can’t be charged with DUI for riding a horse while drunk, because NCGS §20-138.1(e) specifically excludes horses from the definition of “vehicle.”

Some exceptions show up in judicial opinions even if they’re not codified in statutes. For example, in most states, recording the police performing their duties in public is protected by the First Amendment even if a state has a statute criminalizing it.

==> (3) Can the law be invalidated? <==

In some situations, the only option is to argue the criminal law itself is unconstitutional. This can happen if the criminal law is:

* too vague (e.g. sentence enhancements for a “crime of violence”) or

* too broad (e.g. use of “inappropriate or offensive” language in public) or 

* violates the federal or state Constitution (e.g. laws that ban flag burning)

An invalid law is no law at all, and if the law is found unconstitutional the person can’t be convicted under it.

***************

If you get to the end of this process and the answer to all 3 questions is “No,” there’s no missing element, no applicable exception, and no way to overturn the law, there’s a high likelihood the person will be convicted.

In the case of DPI and their snooping on a retiree’s iMessage account, a prosecutor who chose to indict the involved personnel would likely win a conviction.

Let’s go through the 3-step process…

==> (1) Is there a missing element to the crime? <==

Start by taking a look at the statute, NCGS §15A-287(a)(1), which has 2 required elements:

“a person is guilty of a Class H felony if … the person:

[#1] Willfully intercepts, [or] endeavors to intercept, or procures any other person to intercept or endeavor to intercept, 

[#2] any wire, oral, or electronic communication.”

The first required element is the willful interception. Here, there’s no plausible dispute over whether that took place.  Even if the initial batch of Guthrie’s messages were found inadvertently, the ongoing monitoring for a year clearly indicates willful interception by DPI personnel.

The second element relates to the type of thing being intercepted, each of which incorporates the federal law definition. Specifically, an “electronic communication” is “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system.” Text messages squarely fall within that definition.

So the first question is answered “No”: there is no missing element. The conduct of DPI personnel matches the statute.

==> (2) Is there an exception? <==

The NC wiretap statute includes some exceptions. For example, if the person recording has “the consent of at least one party to the communication,” then there’s no crime (this is the meaning of “one-party consent state,” “two-party consent state,” etc).

There are also exceptions that allow intercepting publicly available communications, intercepting communications necessary for job-related purposes like “mechanical or service quality control checks,” or intercepting communications through legal processes like “an electronic surveillance order.”

Based on what is known so far, none of the statutory exceptions contained in §15A-287 apply to DPI personnel. No party to the communication consented to the surveillance. The messages weren’t generally available to the public to fall under the main exceptions. The iMessage platform is run by Apple so DPI can’t claim the job-related quality control exception. And there is no indication anyone at DPI obtained a court order to allow the surveillance.

So the answer to Question #2 is “No,” there is no usable exception.

==> (3) Can the law be invalidated? <==

With frequently charged crimes like wiretap violations, it is often exceptionally difficult to have the law invalidated because it has likely been subject to several court challenges and subsequent legislative modifications to make it “ironclad.”

Here, the statue is specific rather than vague; narrowly tailored rather than overbroad; and does not violate either the federal or the state constitution.

So the 3rd question is also “No”: the law cannot successfully be invalidated.

That leaves us with:

==> No missing elements
==> No usable exceptions
==> No way to invalidate the law

Meaning DPI personnel would be found guilty if they were prosecuted.

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