Hack Beat Scrap

For the present purposes, the only real difficulty with the term surreptitious arises from its connection to the concept of authority. As the dictionary definition underscores, when an actor acts in a surreptitious manner, he or she “execute[s] … with often clever or deft circumvention of proper standards, sanction or authority.” Webster’s Third New International Dictionary 2302 (3d. ed. 1986) (emphasis added). As noted, in construing Section 2512 in a satellite device case, the Eleventh Circuit also emphasized this notion of a lack of authority as crucial to the concept of surreptitiousness: “Although the term ‘surreptitious’ is not defined in the statute itself, its dictionary definition is well established: secret and unauthorized, clandestine; action by stealth or secretly.” Herring, 993 F.2d at 786 (emphasis added). The difficulty in importing the concept of “authority” into “surreptitious” is that it begs the question of who or what is capable of granting “authority” in this context. [**66] Does authority mean authority under the law or does it mean the authority of the person or persons involved in the communication that is the subject of the interception implicating Section 2512? Do one or all of the participants in the “communication” have to grant “authority” in order for there to have been no “surreptitious” interception of the communication?

United States of America v. The Spy Factory