communication where such person is a party to the com-
munication or where one of the parties to the communica-
tion has given prior consent to such interception unless
such communication is intercepted for the purpose of com-
mitting any criminal or tortious act in the United States
or of any State or for the purpose of committing any other
injurious act.

The congressional defendants suggested the Federal Eavesdropping Statute "fails to meet the Harlow test since it does not constitute a clearly established standard which it would have been reasonable for these defendants to believe governed their conduct.7 Congressional Defendants' Supplemental Memorandum on the Impact of Harlow v. Fitzgerald, at 15. In particular, these defendants contend the term "oral communication" as defined in 18 U.S.C. § 2510(2) is unclear. This Court disagrees.

The legislative history behind 2510(2) reflects Congress's
intent that Katz v. United States. 389 U.S. 347, 88 S.Ct.
507, 19 L.Ed 2d 576 (1967), serve as a guide to define com-
munications that are uttered under circumstances justify-
ing an expectation of privacy S. Rep. No. 1097, 90th Cong.
2d Sess. reprinted in (1968) U.S. Code Cong. & Admin.
News pp. 2112, 2178.

United States v. McIntyre, 583 F.2d 1221, 1223 (9th Cir. 1978).

A person's "reasonable expectation of privacy" is a matter to be considered on a case-by-case basis, taking into consideration its' unique facts and circumstances. Benford v. American Broadcasting Companies, 502 F.Supp. 1159, 1162 (D. Md. 1980). Generally, the test applied is two part: (1) Did the person involved have a subjective expectation of privacy; and (2) Was that expectation objectively reasonable? United States v. McIntyre, 582 F.2d at 1223.

In this case and for the purpose of this decision only, both parts of the inquiry must be answered in the affirmative. The plaintiff met in a private home with a select group of individuals who had represented, albeit falsely, they were interested in purchasing insurance. The plaintiff did not personally expect, nor did he intend, for his remarks to be intercepted, partly for broadcast to the American public on national television. Certainly, no reasonable person entering a private home to sell insurance under similar circumstances would have anticipated his conversation would be electronically monitored. The plaintiff, therefore, did partake in an "oral communication", 18 U.S.C. §2510(2), a term whose meaning this Court finds was "clearly established" within the context of Harlow, in November, 1978. See Benford v. American Broadcasting Companies, 502 F.Supp. 1159, 1162 (D. Md. 1980). Cf. Procunier Navarette, supra. 8

"The congressional defendants seek summary judgment as to Count IV on other grounds as well. For example, they argue that even assuming the statute is clear, its terms have not been violated. Because this Memorandum addresses the question of qualified immunity only, these defenses and all others which do not concern the Harlow "objective good faith" standard and the "scope of authority" issue, will not be herein considered.

The congressional defendants have offered no authority, nor is this Court aware of any, wherein Section 2510(2) was found to be unreasonably vague or unclear. See e.g. United States v McIntyre, 582 F.2d 1221 (9th Cir. 1978); United States v. Pui Kan Lam, 483 F.2d 1202 (2d Cir.), cert. denied 415 U.S. 984, 94 S.Ct. 1577 (1973).

For these reasons, this Court rejects the congressional defendants' position that Title III of the Omnibus Crime Control and Safe Street Acts, 18 U.S.C. §2510(2), is vague and fails to comport with the "clearly established" standard of Harlow. The congressional defendants' request for qualified immunity as to Count IV of plaintiff's complaint on the basis of Harlow will therefore be denied.

III.

THE DOCTRINE OF QUALIFIED IMMUNITY-SCOPE OF AUTHORITY

This Court, having determined the congressional defendants cannot successfully raise the defense of qualified immunity as to plaintiff's claims under the Maryland Act and The Federal Eavesdropping Statute because they did not meet the objective good faith standard under Harlow, must now determine whether these same defendants acted within the scope of their authority in November, 1978. This question must be addressed in order to determine the viability of the qualified immunity defense with regard to the common law counts. If the congressional defendants acted within the scope of their authority, their summary judgment motion against plaintiff's common law counts will be granted under Butz v. Economou, supra, and Barr v. Matteo, supra. If not, their qualified immunity defense will be denied.

To make out a defense that he acted within the outer perimeter of his scope of authority, an official must show his authorization was founded in the law. Cunningham v. Macon and Brusnwick R. Co., 109 U.S. 446, 452, 3 S.Ct. 292, 297, 27 L.Ed. 992 (1883). However, it is not enough that an official's immediate supervisor approved his actions when the supervisor himself lacked authority to sanction the unlawful event:

For example, Little v. Barreme, 2 Cranch 170, 2 L.Ed. 243
(1804), held the commander of an American warship liable
in damages for the seizure of a Danish cargo ship on the
high seas. Congress had directed the President to intercept
vessels reasonably suspected of being en route to a French
port, but the President had authorized the seizure of sus-
pected vessels whether going to or from French ports, and
the Danish vessel seized was en route from a forbidden
destination. The Court, speaking through Mr. Chief Justice
Marshall, held that the President's instructions could not
"change the nature of the transaction, or legalize an act
which, without those instructions, would have been a plain
trespass." Id., at 179 . . .

Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471 (1877), was a simi-
lar case. The relevant statute directed seizures of alcoholic
beverages in Indian country, but the seizure at issue,
which was made upon the orders of a superior, was not
made in Indian country. The "objection fatal to all this
class of defenses is that in that locality (the seizing offi-
cers) were utterly without any authority in the premises"
and hence were answerable in damages. Id., at 209

In both Barreme and Bates, the officers did not merely
mistakenly conclude that the circumstances warranted a
particular seizure, but failed to observe the limitations on
their category or type of seizures they were authorized to
make.

Butz v. Economou, 438 U.S. at 490-91, 98 S.Ct. at 2903 (1978); See also Bushe v. Burkee, 649 F.2d 509 (7th Cirt.) cert. denied 102 S.Ct. 396 (1981) ("We reject this broad conclusion (that the defendant is not liable) to the extent it may imply that an individual is relieved of personal responsibility for perpetrating unlawful acts against another simply because he is acting as an agent or subject to a superior's orders.") 9

Once it is shown the supervisor possessed the legal authority to order his subordinates to act, the remaining hurdle is a showing that the order was in fact given. In this case, the congressional defendants operated under the auspices of the House Select Committee on Aging, whose chairman was, and remains, Congressman Claude D. Pepper (D. Fla.). Although the congressional defendants have submitted much documentation which would indicate the final results of their investigation were well received by Congressman Pepper and other members of the United States House of Representatives, 10 there is still no record evidence to indicate any individual member of Congress or staff member of the Select Committee possessed the actual power to arrange and/or authorize the public broadcasting of the plaintiff's November 3, 1978, meeting.11 Nor is this Court aware of a House resolution or Court order which granted the congressional defendants power to broadcast, with ABC, the plaintiff's November 3, 1978 meeting. In the absence of any proof that this authority existed by law, this Court has no choice but to find the congressional defendants' public broadcasting of the plaintiff's meeting was beyond the province of the Select Committee and therefore beyond their permissible scope of authority. 12 See McSurley v. McClellan, 553 F.2d 1277, 1285 (D.C. Cir. 1976) (en banc) ("To the extent plaintiffs charge dissemination outside the Halls of Congress, the federal defendants are not immune to further questioning.") Cf. Gravel v. United States, 408 U.S. 606, 620, 92 S.Ct. 2614, 2625, 33 L.Ed. 2d 583 (1972). (The Supreme Court has taken "a decidely jaundiced view towards extending the (Speech and Debate) Clause so as to privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legis

This rule makes commonly good sense. One can imagine the consequences were a high ranking official permitted to act as a "straw man" who could broaden the scope of his own authority simply by ordering his subordinates to carry out those tasks he is not permitted to accomplish personally.

10 The investigation was far-reaching in scope and involved an exhaustive examination and review of the practices of the insurance industry and its impact on the elderly. The plaintiff was only one of dozens of sales people whose tactics were studied. The methods the committee used to investigate varied depending on the circumstances.

11 The congressional defendants suggest their agreement with defendant ABC which resulted in the broadcasting of plaintiff's meeting was directly authorized by Congressman Pepper. This Court need not reach that issue, however, as the threshold question is whether he had the power to do so. Clearly, he did not.

12 This Court has already decided, inter alia:

(T)he publication of the taped meeting of November 3 was not "an integral part of the deliberative and communicative processes" of the Select Committee.

Benford v. American Broadcasting Companies, 502 F.Supp. 1148, 1154 (D. Md. 1980).

21-618 0-83-38

lative speech or debate and associated matters such as voting and committee reports and proceedings.")13

Therefore, because the public broadcasting of plaintiff's November 3, 1978 meeting was properly and adequately alleged tortious interference with plaintiff's business relations and privacy, the broadcast being part of an allegedly unlawful conspiracy, and there being no record evidence to show this broadcast was legitimately authorized by Congress or was part of the deliberative or legislative process; this Court finds that the congressional defendants acted beyond their scope of authority in its making. The congressional defendants are consequently not immune to plaintiff's common law counts.

IV.

CONCLUSION

In conclusion, this Court holds that the congressional defendants are not officially immune to Counts I, II, III, V, and VI of plaintiff's complaint. The Maryland Act and the Federal Eavesdropping Statute were clearly established and would have been known to a reasonable person at the time the defendants surreptitiously taped and broadcast plaintiff's November 3, 1978 meeting. Moreover, the congressional defendants have failed to adequately demonstrate that they acted within the scope of their authority in the broadcasting of excerpts of that meeting on national television, said broadcast being well beyond the legislative function.

Accordingly, the congressional defendants request for summary judgment based on qualified immunity is denied, without prejudice to the remaining grounds for dismissal and/or summary judgment which have been alleged and which have not yet been decided; and the stay of discovery as to the congressional defendants, ordered by this Court on July 16, 1982, is hereby lifted.

A separate Order will be entered to effectuate the rulings of this opinion.

EDWARD S. NORTHROP,

Senior United States District Judge.

13 The congressional defendants' agreement that they are entitled to qualified immunity solely because their activities were "official" functions, as opposed to legislative functions, is not well taken. This Court has already stated that though it

"does not question the value of the 'informing function' of Congress, (there appears to be) no legitimate reason for using it as a means of protecting the publication of materials injurious to private individuals."

Benford v. American Broadcasting Companies, Inc., 502 F. Supp. 1148, 1155 (D. Md. 1980). See also: Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed 2d 411 (1979).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

MARYLAND

GEORGE H. BENFORD

V.

AMERICAN BROADCASTING COMPANIES, INC., AND MRS. ISAAC (BETTY) HAMBURGER AND MISS KATHLEEN T. GARDNER AND MRS. LILLIAM M. TEITELBAUM AND DAVID L. HOLTON And MargareT OSMER

Civil Action No. N-79-2386

ORDER

In accordance with the Memorandum of even date entered in this case, IT IS, this 22nd day of December, 1982, by the United States District Court for the District of Maryland, ORDERED:

1. That the motion of the congressional defendants for summary judgment on the basis of qualified immunity BE, and the same hereby IS, DENIED, with prejudice;

2. That the Stay Order effecting discovery in this case BE, and the same hereby IS, LIFTED; and

3. That the Clerk of Court shall mail copies of the aforegoing Memorandum and this Order to counsel for the parties to this suit.

EDWARD S. NORTHROP,

Senior United States District Judge.