Good News for Paris Hilton

Using a hidden video camera, high school student Jason Smith secretly taped consensual sexual relations with his girlfriend, a student at the same school. After the pair split, Smith circulated copies to classmates by email. The ex sued anonymously, seeking damages for invasion of privacy under 18 U.S.C. § 2511(a), covering anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." The trial judge concluded taping wasn't an "interception," and dismissed the suit.

That decision was reversed today (Doe v. Smith, No. 05-1903 (7th Cir. Nov. 21, 2005)), in an opinion written by Judge Frank Easterbrook for a unanimous three judge panel. The court reasoned voyeuristic video intercepted. . . well, something:

This defined term “means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). If Doe and Smith engaged in “oral communication” in Smith’s bedroom, then its acquisition by a video recorder—an “electronic . . . device”—is covered.

Easterbrook also directed the district judge on remand to "revisit the question whether the plaintiff should be allowed to proceed anonymously. The judge granted her application to do so without discussing this circuit’s decisions, which disfavor anonymous litigation." However, as Howard Bashman discovered, "Doe's" own lawyer blew his client's cover in his Rule 26.1 Statement. Bashman observes:

[I]t is worth pondering who bears responsibility when an electronically-filed document (such as the Brief for Appellant in this case) reveals the identity of the appellant proceeding under a court-approved pseudonym and the document is posted, in unredacted form, online at the federal appellate court's website.

Translation: whether or not "Doe" recovers from Smith, she's got a second shot--for invasion of privacy (and malpractice) by her lawyer.