By: Jared Berman, Ruling Sports Intern (Twitter: @RealSportsNLaw)
Pranked! Two twenty-year-old males from Massachusetts must respond to federal wiretapping charges after successfully initiating a phone call between two NFL general managers. Unbeknownst to the GMs, the men recorded the call and subsequently sold it to Deadspin for $200.00, where it was posted for the world to hear.
The two men, Joshua Barber and Nicholas Kaiser, called former Buffalo Bills GM Buddy Nix, posing as Tampa Bay’s GM Mark Dominik. To Barber’s surprise, Nix answered the phone, at which point he nervously hung up. Barber then dialed Dominik, and while he was being connected, Nix returned Barber’s original call. Barber then merged the two phone calls and Kaiser used his device to record the entire six-minute impromptu conversation between Dominik and Nix.
According to the United States Department of Justice,
“Both men are charged with intentionally intercepting a wire communication and with making a telephone call without disclosing their identity with the intent to annoy or harass the person at the called number. The charges carry a maximum penalty of five years in prison, a $500,000 fine or both.
The criminal complaint stems from the investigation by Special Agents of the Federal Bureau of Investigation, under the direction of Acting Special Agent in Charge Richard M. Frankel.”
The federal criminal charges arise from 18 U.S.C.A. § 2511, a federal statute, which prohibits the interception and disclosure of wire, oral, or electronic communications. The statute expressly requires that a person must act intentionally when committing the unlawful act. While the complaint alleges that the defendants committed the act, the question is whether or not they acted with the requisite intent to be charged with the crime.
Barber and Kaiser could not have planned the prank, Kaiser’s attorney Rodney Personius said, noting the “perfect storm” of Nix calling back while Dominik was on the line. “It wasn’t an intentional or premeditated act,” Personius said, via ESPN.
On the other hand, Personius told ESPN that Barber was “of the belief he has the skills to play in the NFL and was endeavoring to get the attention of Mr. Nix to get a tryout.” This indicates Barber devised a plan to reach Nix in hopes of pleading his case to play football. If Personius is correct, Barber will be found to have acted with premeditation because the phone call was placed deliberately and this would be enough to meet the requisite level of intent for the statute. However, Barber is represented by a public defender, not Personius, and thus Personius’s comments reflecting Barber are merely speculative. Barber’s attorney has yet to comment.
Earlier this week, Kaiser and Barber appeared in court. The judge entered not guilty pleas on their behalf and released them without bail. Clearly, the judge has a good sense of humor and understands that giving two twenty-year old men five years in jail and/or a $500,000 fine is ludicrous. Further, the FBI’s involvement in such a case is unduly wasteful and no reasonable taxpayer would approve of any money being allocated to such an investigation. There was no evidence of any wire-tapping, hacking, or deployment of a virus. Kaiser and Barber reached the GM’s by making simple phone calls to the front office. Perhaps a reorganization of the administrative staff is in order (get a new secretary) but do not send the kids to prison. Because had this been a prank on Jimmy Kimmel Live or the Tonight Show, America would have laughed and nobody would have thought twice. This should be no different.