Lyle M. RICE, Appellant, v. Deborah J. RICE, Dana Newell, Daniel R. Carter, Charles B. Fitzgerald, Charles M. Fitzgerald, Daniel R. Carter, Appellees, 951 F.2d 942

ROSS, Senior Circuit Judge. Lyle M. Rice appeals the district court’s order denying his motion for

summary judgment and granting

summary judgment to his ex-wife, Deborah J. Rice, Deborah’s father, Dana Newell, and Deborah’s attorney, Daniel R. Carter, in this action for damages under the Federal Wiretapping Act (Act), 18 U.S.C. §§ 2510-2521. We affirm. I. The essential facts are not in dispute. After sixteen years of marriage, Lyle M. Rice and Deborah J. Rice divorced in July of 1988. Deborah was awarded primary custody of their two children. After the divorce, Lyle and Deborah continued to have disagreements about child visitation arrangements. During a meeting with her attorney, Daniel R.

Carter, Carter suggested that one way Deborah could document the visitation arrangements was to install a recording device to her telephone. Carter later researched the issue and determined that Kempf v. Kempf, 677 F.Supp. 618 (E.D.Mo.1988) (Kempf I), and Platt v. Platt, 685 F.Supp. 208 (E.D.Mo.1988) {Platt I), permitted the installation and use of a recording device on Deborah’s telephone. Based on Carter’s advice, Deborah installed a recording device to her bedroom telephone and she instructed her children not to use that telephone.

Despite her instructions, the children used their mother’s bedroom telephone on various occasions while talking to their father. As a result, conversations between the children and Lyle were recorded during the period of September 1988 through February 1989. On February 21, 1989, Kempf I was reversed by this court in Kempf v. Kempf, 868 F.2d 970 (8th Cir.1989) (Kempf II). In Kempf II, we held that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2521, also known as the Federal Wiretapping Act, prohibited the wiretapping of telephone communications within the marital home.

Id. at 973. The day after Kempf II was filed, Platt I was also reversed, but without opinion. Platt v. Platt, 873 F.2d 1447 (8th Cir.1989). At some point, Lyle learned that some of his conversations with his children had been recorded by Deborah and that edited copies of the recordings had been distributed to others by Deborah and her father, Dana Newell. On August 25, 1989, Lyle filed the underlying action against Deborah, Dana Newell, Daniel R. Carter, and members of Carter’s law firm, alleging violations of the Act, and raising several state tort claims for “tortious invasion of privacy.” On cross-motions for

summary judgment, the district court denied appellant’s motion for

summary judgment and granted

summary judgment to the defendants on the ground that defendants were entitled to the protection of the “good faith reliance” defense under 18 U.S.C. § 2520(d)(3), and that the application of Kempf II in this case “ ‘would constitute a species of retroactive application of the law.’ ” Rice v. Rice, No. 89-0806-CV-W-3, slip op. at 9 (W.D.Mo. Sept. 4, 1990) (quoting Kratz v. Kratz, 477 F.Supp. 463, 483 (E.D.Penn.1979)). The district court found undisputed evidence that Deborah acted upon her attorney’s determination that the Act permitted the wiretapping and that she had no intention of violating the law.

The district court also found undisputed evidence that Carter’s advice was based upon his research of the law at the time the recording device was installed. II. We review the district court’s grant of

summary judgment under the same standard applied by the district court. Federal Deposit Ins. Corp. v. Kasal, 913 F.2d 487, 489 (8th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1072, 112 L.Ed.2d 1178 (1991). We should affirm the district court’s grant of

summary judgment if, viewing the evidence in the light most favorable to the non-moving party, the full record discloses that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). III. Appellant contends that the district court erred in granting defendants’ motion for

summary judgment on the basis of the “good faith reliance” defense, 18 U.S.C. § 2520(d)(3), because the defense does not exist except in cases involving a person or entity providing an electronic communication service to the public. We agree.

Section 2520(d)(3) provides: (

d) Defense. — A good faith reliance on— (3) a good faith determination that section 2511(3) of this title permitted the conduct complained of; is a complete defense against any civil or criminal action brought under this

chapter or any other law.

Section 2520(d)(3) specifically limits the “good faith reliance” defense to “a good faith determination that section 2511(3) ... permitted the conduct complained of.” (Emphasis added). Looking to section 2511(3), it is clear that the defense is referenced solely to the conduct of persons or entities providing electronic communication service to the public. 18 U.S.C. § 2511(3). Further, the legislative history to

section 2520(d)(3) makes reference solely to the conduct of communication service providers or their employees. S.Rep. No. 541, 99th Cong., 2d Sess. 26-27 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3580-81. Therefore, it is clear that 18 U.S.C. § 2520(d)(3) does not provide a “good faith reliance” defense to private actors, such as the defendants. For that reason, we do not rely on that portion of the district court’s decision which granted

summary judgment to defendants on the basis of the “good faith reliance” defense under 18 U.S.C. § 2520(d)(3). IV. Next, appellant argues that he was entitled to have Kempf II applied retroactively and

summary judgment granted in his favor. [WJhether to apply a change in decisional law retroactively in a particular case is governed by the three-factor test of Chevron Oil v. Huson, 404 U.S. 97 [92 S.Ct. 349, 30 L.Ed.2d 296] (1971).

These factors, sometimes referred to as the reliance, purpose, and inequity factors, are: (1) whether the decision establishes “a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed;” (2) whether retroactive application will advance or retard operation of the new rule, determined by looking to the history, purpose, and effect of the rule; and (3) whether retroactive application will be inequitable in that it would create injustice or hardship. Ridgway v.

Wapello County, 795 F.2d 646, 647 (8th Cir.1986) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971)) (citations omitted). After considering each of the Chevron factors, we agree with the district court that the holding of Kempf II should not be retroactively applied in this case. Under the reliance factor of Chevron it is undisputed that Carter relied upon both Kempf I and Platt I when he advised Deborah that she could install a recorder to her telephone.

At that time, there was no Eighth Circuit caselaw on point, and Kempf I and Platt I represented the state of the law in the Missouri federal district courts and followed the position of the Second and Fifth Circuits on the issue of whether the Act applied to domestic wiretapping. Kempf II effectively overruled Kempf I and Platt I. In our view, retroactive application would not advance operation of the new rule and, in the circumstances of this case, would be inequitable. Kempf I involved a husband’s recording of his wife’s telephone conversations within the marital home.

In that case, the district court specifically relied upon Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974), in which the Fifth Circuit concluded that the Act was not intended to apply to a husband’s wiretapping of his wife’s phone conversations within the marital home. Kempf I, 677 F.Supp. at 620-21. In Platt I, a woman, while separated from her husband, recorded telephone conversations between her daughter and her husband at her home. In that case, the district court, relying on the factually similar case of Anonymous v.

Anonymous, 558 F.2d 677, 679 (2d Cir.1977), concluded that the Act did not extend to wiretapping in a “ ‘purely domestic conflict.’ ” Platt I, 685 F.Supp. at 209. Although at the time of Carter’s research there was another line of cases holding that the Act was applicable to domestic wiretapping, see e.g., Pritchard v. Pritchard, 732 F.2d 372 (4th Cir.1984); United States v. Jones, 542 F.2d 661 (6th Cir.1976); Nations v.

Nations, 670 F.Supp. 1432 (W.D.Ark.1987), we believe that it was entirely reasonable and appropriate for Carter to rely upon the decisions of Kempf I and Platt I, issued from within the state in which he practiced law, in advising his client. The circuit courts had split on the proper

interpretation and application of the Act in domestic situations, and the issue had not been addressed by this court at that time. Further, we find nothing to indicate that Carter could have predicted the holding in Kempf II. As recognized by the district court in Kratz v. Kratz, 477 F.Supp. at 483, Lawyers are not soothsayers, and possess no crystal balls in which to foresee changes in judicial

interpretations of the law. We cannot as a matter of fundamental justice say that individuals act at their peril when they reasonably rely upon judicial decisions. If the law required otherwise, we would do better to replace our courts with casinos and dispense judgments by a spin of the roulette wheel. Based on this reasoning, we believe that it would be inequitable under Chevron to hold Carter, his client, Deborah, or her father liable under the Act by the retroactive application of Kempf II. We therefore conclude that the district court did not err in refusing to retroactively apply the holding of Kempf II or in denying appellant’s motion for

summary judgment, and we affirm that portion of the district court’s decision. Y. With respect to the district court’s grant of defendants’ motion for

summary judgment, we have reviewed the record in the light most favorable to appellant and determined that there is no genuine issue as to any material fact in this case. Appellant’s assertion that there remains a genuine issue as to whether defendants acted in good faith reliance upon Kempf I and Platt I is without merit. The sworn affidavits filed in support of their motion for

summary judgment have satisfied defendants’ burden of showing that they acted in reliance upon Kempf I and Platt I. We therefore conclude that defendants are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Accordingly, we affirm the district court’s denial of appellant’s motion for

summary judgment and grant of

summary judgment to defendants in this case. . The Honorable Elmo B. Hunter, Senior United States District Judge for the Western District of Missouri. . 18 U.S.C. § 2511 provides:

(1) Except as otherwise specifically provided in this

chapter any person who— (

a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication: (

b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when— (

i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; (

c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or (d)intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5). .

Specifically, Lyle alleged that Deborah recorded his conversations with his children, edited the tapes "to portray Plaintiff in a false and unflattering light,” distributed copies of the edited recordings to others, and attempted to use the recordings against him in a state court proceeding in April, 1989, in violation of the Act (Count I); that Dana Newell installed the recording device on Deborah’s telephone and distributed copies of the taped conversations to others, in violation of the Act (Count III); and that Daniel R.

Carter, as Deborah’s attorney, advised Deborah to install the recording device on her telephone and attempted to use the recorded conversations against plaintiff in a state court proceeding, in violation of the Act (Count V). . 18 U.S.C. § 2511(3) provides in relevant part: (

a) Except as provided in paragraph (

b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication ... to any person or entity other than an addressee or intended recipient of such communication ...; (

b) A person or entity providing electronic communication service to the public may divulge the contents of any such communication— (i)as otherwise authorized in section 2511(2)(a) ... of this title; (ii) with the lawful consent of the originator or any addressee or intended recipient of such communication; (iii) to a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or (iv) which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency. 18 U.S.C. § 2511(2)(a)(ii) provides that wire or electronic communication service providers are authorized by law to intercept wire, oral, or electronic communications if the provider has been provided with a court order or a written certification by a law enforcement officer or the United States Attorney General.