*1 Defendant Luis Andres Serna's Motion to Suppress, Dkt. No. 38, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). Dkt. Nos. 41, 52. The undersigned held a hearing on July 26 and 27, 2023, see Dkt. Nos. 61, 62 (transcripts), and has considered the parties' evidence and briefing. See Dkt. Nos. 46 (Gov't's Resp.), 47 (Def.'s Reply), 50 (Def.'s Exs.), 58 (Gov't's Am. Exs.), 74 (Joint Statement Tech. Facts), 78 (Def.'s Second Suppl. Br.), 79 (Gov't's Suppl. Br.), 80 (Def.'s Suppl. Reply).[1] Defendant asks the Court to suppress recordings of video calls that he placed from a detention center, but the undersigned reports, in part because Defendant was recorded betraying his actual knowledge of the detention center's video-call recording policy, that his prior consent excepted the interceptions of the video calls from the strictures of the federal wiretap statute. The undersigned recommends, therefore, that the Motion be denied.

At the GEO South Texas Rio Grande Detention Center (“GEO”), inmates[2] use video tablets to make and receive video calls with outside friends and family. Hearing Transcript Day 1 [“T1”] at 123; Hilborn Aff., Dkt. No. 74-1.[3] The tablets transmit and receive data wirelessly, but their video function is disabled unless the tablets are docked on the dormitory wall. Hilborn Aff. ¶ 10, Dkt. No. 74-1. During a call, the tablets communicate with a central server to connect with outside devices. Id. Audio and visual data are usually transmitted through separate streams, which are assembled by the receiving tablet or other device. Id. ¶ 13.

*2 Video calls can only be made between registered accounts. Id. ¶ 12. When outsiders register for an account, they must accept terms and conditions explaining that video calls may be monitored, recorded, shared, and used as evidence. Id. ¶¶ 4–7. Inmates must accept the same terms, which are presented on screen in English and Spanish, each time they log into a tablet. Id. ¶ 11; Exs. 10, 15, 39–46.

During a video call, an inmate and an outsider are connected in a virtual “video visit room,” which is unique to that call. Hilborn Aff. ¶ 13, Dkt. No. 74-1. GEO staff may monitor this virtual “room” live. Id. After the call, a recording of it is transferred to a storage system, where GEO staff may access it remotely. Id. GEO's policy is to record all phone and tablet video calls, except attorney and court calls, for security purposes, like to prevent gang violence, contraband smuggling, and other illegal and inappropriate activity. T1 at 122, 126, 130–31, 135, 144, 148; T2 at 23; see, e.g., Exs. 7, 40–41.

Starting in April 2022, Defendant was held in pretrial detention at GEO on charges of smuggling noncitizens and of possessing one thousand kilograms or more of marijuana.[4] He signed a form acknowledging that he understood an orientation video explaining GEO's recording policy, see infra note 25 and accompanying text, and he received a detainee handbook explaining the policy. See infra note 24 and accompanying text. He started using the tablets to send text messages and make video calls. See infra note 30 and accompanying text.

On June 24, 2022, during Defendant's detention, he video-called his seventeen-year-old girlfriend (hereinafter, “minor victim”) from a tablet and asked her to perform sexual acts on video. She obliged on the call and recorded the resultant video. T1 at 49–50.[5] In subsequent video calls between Defendant and the minor victim on July 3, 4, 8, 11, and 13, she replayed the video from her cell phone, for Defendant to see on his tablet, by holding up her phone screen to her video camera. T1 at 49–52, 54–56.[6]

A month earlier, Defendant had been recorded discussing the video-call monitoring at GEO. On May 24, 2022, he had vented about the minor victim on a tablet video call with his cousin.[7] Defendant told his cousin, in Spanish, that he was so upset with the minor victim that if he were to see her, he might kill her, “I don't fucking care if my video is being recorded.” Ex. 52 at 00:01–00:05; see Hearing Transcript Day 2 [“T2”] at 168–70.[8] On a tablet video call the next day, May 25, 2022, Defendant asked his wife's[9] permission to call the minor victim to capture, using the prison recording system, recordings of her threatening him. Ex. 53 at 00:02–00:11; see T2 at 173–75.[10],[11]

*3 Later, Homeland Security Investigations Task Force Officer Manuel Gutierrez,[12] investigating Defendant's smuggling case, requested audio and video recordings from all of Defendant's calls at GEO. T1 at 61–64. While reviewing these, Officer Gutierrez happened to discover the sexual videos of the minor victim. T1 at 64. He alerted the U.S. Marshals Service to them, and GEO revoked Defendant's tablet access. T1 at 149, 151. The Government subsequently filed charges against Defendant for production of child pornography in violation of 18 U.S.C. § 2251(a) and (e). Dkt. No. 1.

Now, Defendant claims that his tablet video calls with the minor victim were intercepted in violation of the federal wiretap statute, and he asks the Court to suppress all the fruits of the interceptions. Dkt. No. 38 at 4, 11; T1 at 5, 23.

Defendant claims that although he knew GEO's telephones were monitored and recorded, he was ignorant of the monitoring and recording of the tablet video calls. Dkt. No. 38 at 2–3; see T1 at 6, 10–11.[13] He argues that he received an explicit audio warning of call recording before telephone calls, but not tablet video calls, and, so, assumed that the tablet calls were neither monitored nor recorded. Dkt. No. 38 at 3, 9; T1 at 11. Any written notice, Defendant argues, was unclear, especially considering his alleged English-and Spanish-language illiteracy. Dkt. No. 38 at 9–10, 38-2. Even if the written notice were clear, Defendant asserts, he could not have read it. Thus, Defendant argues that he was not on notice of tablet monitoring and recording and that, therefore, the intercepted videos should be suppressed. See Dkt. No. 38 at 9–10; T2 at 163.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, §§ 801–04, 82 Stat. 197, 211–25 (1968), added §§ 2510 through 2520 to Title 18 of the U.S. Code.[14] Congress was concerned by “extensive wiretapping carried on without legal sanctions” and purported to balance “the privacy of innocent persons” against the needs of law enforcement. § 801, 82 Stat. at 211–12. In the Internet age, Title III has grown “famous (if not infamous) for its lack of clarity,” Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 462 (5th Cir. 1994), and courts approach it with some trepidation. See In re Pharmatrak, Inc., 329 F.3d 9, 21 (1st Cir. 2003) (expressing concern “about the judicial interpretation of a statute written prior to the widespread usage of the internet and the World Wide Web in a case involving purported interceptions of online communications”). Alert to the danger, the Court hews close to Congress' choice of words.

Title III applies to prison monitoring. See United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987) (collecting cases). Unless an exception applies, 18 U.S.C. § 2511(1)(a) prohibits the intentional interception of “any wire, oral, or electronic communication,” and § 2515 requires the suppression of any intentionally intercepted “wire or oral communication.” See United States v. Steiger, 318 F.3d 1039, 1050–52 (11th Cir. 2003) (“The Wiretap Act does not provide a suppression remedy for electronic communications unlawfully acquired under the Act.”). On this Motion to Suppress, therefore, the Court must determine whether Defendant's tablet video calls were intercepted; if they were, whether they were intercepted intentionally; and, if they were, whether they were suppressible wire or oral communications.

*4 “ ‘[I]ntercept’ 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). “ ‘[C]ontents’, when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.” § 2510(8). “ ‘[E]lectronic, mechanical, or other device’ means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than [some exceptions, none of which is relevant but the law-enforcement exception, discussed below separately].” § 2510(5).[15] This text broadly captures any unexcepted acquisition, by any device or apparatus, of the substance of a communication protected under Title III.

Defendant, latching onto the discussion in United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010), argues that his calls were “intercepted” in violation of Title III because they “were intercepted contemporaneously with transmission. In other words, they were caught in flight.” Def.'s Second Suppl. Br. 12, Dkt. No. 78 (relying also on Steve Jackson Games, Inc., 36 F.3d 457, and Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002)).

The Government retorts that any interception here was immaterial because the recordings that it seeks to enter into evidence were “stored” and “accessed” under the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701–2711, which, conveniently to the Government, is riddled with useful exceptions and provides no suppression remedy. See §§ 2702(b), 2707, 2708. The contents of Defendant's virtual “video visit rooms” were automatically recorded, and the recordings stored. Hilborn Aff. ¶ 13, Dkt. No. 74-1. What Officer Gutierrez reviewed, and what the Government seeks to enter into evidence, were these stored recordings, not any live interception, says the Government. Gov't's Suppl. Br. 7–9, Dkt. No. 79 (quoting Steve Jackson Games, Inc., 36 F.3d at 462 (5th Cir. 1994) (“Congress did not intend for ‘intercept’ to apply to ‘electronic communications’ when those communications are in ‘electronic storage.’ ”)).

The Court need not delve into the Government's claimed SCA exceptions because Defendant is right that Title III, not the SCA, controls the issue here. The Government is correct that once the recordings were stored, the SCA controlled their access and dissemination. From this point, the remaining chain of evidence was likely lawful under the proffered SCA exceptions,[16] and, to any extent it did violate the SCA, this could not make the recordings suppressible. But Defendant does not challenge the storage or access to the storage of the video recordings: He challenges the very interception of the video calls, whose recordings were then stored by a distinct process, in the first place. What the SCA permits and proscribes as to the recordings is irrelevant to the initial interceptions; if these violated Title III, the SCA cannot cleanse them. See United States v. Councilman, 418 F.3d 67, 82 (1st Cir. 2005) (“[T]he exceptions in the Stored Communications Act do not, by their terms, apply to the Wiretap Act.”). Any contrary holding would be absurd: The Government could always evade Title III's suppression remedy by simply recording and storing the fruits of its wiretaps.

*5 In Szymuszkiewicz, 622 F.3d 701, the defendant surreptitiously created an Outlook rule that resulted in a server forwarding emails both to an intended recipient and to him, and the Seventh Circuit held the forwardings from the server to him to be interceptions. 622 F.3d at 705. “The copying at the server was the unlawful interception, catching the message ‘in flight.’ ” Id. at 704.

Here, likewise, when Defendant sent his video calls to the minor victim, the virtual “video visit room” software program made contemporaneous recordings of the calls, which it then “transferred” to the “back-end system for storage,” whence they were made available to Officer Gutierrez. Hilborn Aff. ¶ 13, Dkt. No. 74-1. Like the email copying in Szymuszkiewicz, the contemporaneous recording of the video communication, whether or not consented, was an interception within the meaning of Title III. The interception was complete from the moment the “video visit room” program observed the live calls to create the first temporary data constituting their recordings, even before the recordings were transferred to the longer-term, “back-end” storage.

The other cases cited by the parties do not upset this. In Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457 (5th Cir. 1994), the Fifth Circuit, relying on language since superseded by the USA PATRIOT Act, Pub. L. No. 107-56, § 209, 115 Stat. 272, 283 (October 26, 2001), held that “electronic communications” in “electronic storage” could not be “intercepted” within the meaning of Title III. 36 F.3d at 462. And, in Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002), the Ninth Circuit reviewed the PATRIOT Act and concluded that “interception” means “acquisition contemporaneous with transmission,” which does not include communications in “electronic storage.” 302 F.3d at 878. These holdings may be applicable to the recordings of Defendant's video calls, including whatever temporary data first constituted them while the virtual “video visit rooms” remained open. Hilborn Aff. ¶ 13, Dkt. No. 74-1. But, again, Defendant does not challenge any conduct as to this “electronic storage,” but the very interception of the video calls that made the recording and storage possible. These “electronic storage” authorities do not remove Defendant's live video calls from Title III's protection.[17]

Construed properly under Title III, Defendant's video calls were “intercepted” within the plain meaning of the definitions at §§ 2510(4), (8), and (5). The “acquisition” of the calls was the automatic observation of them, which made their recording possible. See § 2510(4). This included the video and audio substance of the calls, and, therefore, their “contents.” See § 2510(8). And whatever hardware hosted the “video visit room” observation and recording program—perhaps the “central server” connecting the video tablets with outside devices, Hilborn Aff. ¶ 10, Dkt. No. 74-1—was at least one “device.” See § 2510(5); Szymuszkiewicz, 622 F.3d at 706–07 (construing “device” broadly).

*6 Therefore, Defendant's tablet video calls were intercepted. See § 2510(4).

The parties do not dispute that any interception here was “intentional.” See § 2511(1)(a). The interception was pursuant to a formal monitoring program designed to capture “violations of law or facility policy” just like Defendant is alleged to have been caught committing. Hilborn Aff. ¶ 13, Dkt. No. 74-1. This was intentional by any definition. See In re HIPAA Subpoena, 961 F.3d 59, 65 (1st Cir. 2020) (defining “intentional” to require “conscious objective” (quoting S. Rep. No. 99-541, at 23 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3577)); United States v. Townsend, 987 F.2d 927, 930 (2d Cir. 1993) (“deliberately and purposefully”). Defendant's tablet video calls were intercepted intentionally. See § 2511(1)(a).

§ 2510(1). “ ‘[A]ural transfer’ means a transfer containing the human voice at any point between and including the point of origin and the point of reception.” § 2510(18). “ ‘[P]erson’ means any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.” § 2510(6).

Defendant concludes, without engaging with this text, that his calls were wire communications. Def.'s Second Suppl. Br. 12, Dkt. No. 78. For its part, the Government draws attention to the fact that the GEO video tablets were wireless and argues that calls from them could not, therefore, have been wire communications. Gov't's Suppl. Br. 5–7, Dkt. No. 79. Defendant's video calls, it urges, are better understood as “electronic communications,” whose recordings may not be suppressed. Id.; see §§ 2510(12), 2515; Steiger, 318 F.3d at 1050–52.

By the ordinary meaning of the definition at § 2510(1), Defendant's video calls were wire communications because they were “aural transfers” connected through the “central server.” See Hilborn Aff. ¶ 10, Dkt. No. 74-1. The call audio contained the voices of Defendant and the minor victim. Although the audio and video data usually traveled “through two separate data streams,” id. at ¶ 13, they originated together at the video tablet or the minor victim's device and then were “assembled by the receiving device,” that is, the minor victim's device or the video tablet. Id. So, even while separated, the video data were part of a transfer containing the human voice at “the point of origin and the point of reception.” § 2510(18). Defendant's video calls were, in their entirety, “aural transfers.” See generally Bruce E. Boyden, Can A Computer Intercept Your Email?, 34 Cardozo L. Rev. 669 (2012) (discussing at length meaning of “aural”).

*7 Defendant's video tablet “wirelessly communicate[d] with a central server to connect to outside callers” like the minor victim, Hilborn Aff. ¶ 10, Dkt. No. 74-1, so the calls from it were “made in whole or in part through the use of” the central server. § 2510(1).[18] The server was “between the point of origin and the point of reception”—that is, the call data flowed through it to connect the video tablet with the minor victim's device—and must have contained “wire, cable, or other like connection.” Id. The Court might take judicial notice that servers contain wires, see Fed. R. Evid. 201(b)(1), but it need not, as the fact that this server connected calls, just like “a switching station” does,[19] permits the Court to find that the transmissions made through its use were aided, at the very least, by a connection “like” a wire or cable. § 2510(1).

Whether the server was formally “furnished or operated by” Global Tel* Link Incorporated d/b/a Viapath Technologies, which provides the video tablet services at GEO, Hilborn Aff. ¶¶ 1, 3, Dkt. No. 74-1, or by one of Viapath's subsidiaries, subcontractors, or service providers, it must have been by some “individual, partnership, association, joint stock company, trust, or corporation.” § 2510(6) (“person”). Whoever “furnished or operated” the server may even have done so as an “agent” of GEO, that is, “of the United States or any State or political subdivision thereof.” Id. Finally, the GEO detainee handbook and “Phone Rates” plainly contemplated interstate and international communication by inmates, Ex. 7 at 8; Ex. 9, the terms and conditions of the video-calling placed no restrictions on interstate and international calling, Hilborn Aff. ¶ 4, Dkt. No. 74-1 (citing ViaPath Technologies Terms of Use, GTL, https://www.gettingout.com/telmate-terms-of-use/ (effective Dec. 20, 2023)), the video calls were subject to “internet” monitoring, id. at ¶ 12, and the video calls were transmitted using “a WebRTC protocol,” id. at ¶ 13, which is being developed by the World Wide Web Consortium and the Internet Engineering Task Force to allow Internet users to communicate more easily with each other. Web Real-Time Communication, Newton's Telecom Dictionary (32d ed. 2021). The parties do not dispute, and the Court finds, that the “person” who “furnished or operated” the server was “engaged in providing or operating [it] for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce.” § 2510(6).

The Government urges the Court to read the word, “use,” in the phrase, “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection ... ,” § 2510(1), to indicate “that the primary mode of data transmission must be via a wire connected from one point to another point.” Gov't's Suppl. Br. 7 n.1, Dkt. No. 79. But this “primary mode” gloss has no basis in case law, and it would contradict Congress's express intent to regulate transfers made only “in part” through the use of qualified facilities. § 2510(1). The Government was good enough to attempt to distinguish a recent Western District of Texas opinion contrary to its proposition. See United States v. Ortiz-Lopez, 651 F. Supp. 3d 855, 861–62 (W.D. Tex. 2023) (“ ‘[C]ommunications using cellular phones are considered wire communications under the statute’—‘despite the[ir] apparent wireless nature’—‘because cellular telephones use wire and cable connections when connecting calls.’ ” (quoting The Co. v. United States, 349 F.3d 1132, 1138 n.12 (9th Cir. 2003))). On this point, the Court agrees with the Western District and the cases on which it relied.

*8 The text of § 2510(1) unambiguously captures Defendant's video calls within its definition of “wire communication,” so the Court need not consult its legislative history. See Steve Jackson Games, Inc., 36 F.3d at 462. But, for the sake of completeness, the Court acknowledges these lines from the Report of the Senate Committee on the Judiciary on the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, Title I, 100 Stat. 1848 (1986), which brought electronic communications within the protection of Title III:

S. Rep. No. 99-541, at 14 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3568. Defendant's video calls did not fall under this rule because they could “fairly be characterized as containing the human voice.” See id. And enough technological advancement has transpired since 1986 to make the applicability of the “solely of data” example to modern communication protocols doubtful. See id. Further, this portion of the Report describes the electronic communications being brought within Title III and should not be recast to suggest that Congress meant to restrict, by negative implication, Title III's protection of wire communications. See id. The Report's language about “video teleconferences” is clear enough, but, at least as to Defendant's video calls, the Court simply cannot square it with the plain text of § 2510(1). Of course, the unambiguous text of the statute must prevail. See Steve Jackson Games, Inc., 36 F.3d at 462.

Therefore, Defendant's tablet video calls were wire communications. See § 2510(1).

As such, they could not have been electronic communications, the definition of which expressly excludes “any wire or oral communication.” § 2510(12).[20] Finally, neither party argues that the video calls were oral communications, Def.'s Second Suppl. Br. 12, Dkt. No. 78; Gov't's Suppl. Br. 5–6, Dkt. No. 79, and because, as wire communications, unless an exception applies, the § 2515 suppression remedy is already available as to them, the Court need not decide whether they were. See Ortiz-Lopez, 651 F. Supp. 3d at 862 (citing Briggs v. Am. Air Filter Co., 630 F.2d 414, 417 & n.4 (5th Cir. 1980)).[21]

*9 In short, Defendant's tablet video calls were wire communications, intentionally intercepted in violation of § 2511(1)(a) and suppressible under § 2515, unless a Title III exception applies. The Government urges two: the consent exception and the law-enforcement exception.

Title III's prohibition on interception does not apply where “one of the parties to the communication has given prior consent to such interception.” § 2511(2)(c). This exception should be “construed broadly.” United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987). “[T]he burden is on the United States to prove consent” “from the totality of the circumstances.” United States v. Gomez, 947 F.2d 737, 738 (5th Cir. 1991) (citing United States v. Kolodziej, 706 F.2d 590 (5th Cir. 1983), and United States v. Jones, 839 F.2d 1041 (5th Cir. 1988), then United States v. Antoon, 933 F.2d 200 (3d Cir. 1991)). This may be “express or implied.” United States v. Willoughby, 860 F.2d 15, 19 (2d Cir. 1988); United States v. Workman, 80 F.3d 688, 693 (2d Cir. 1996). “Consent to interception of a telephone call may be inferred from knowledge that the call is being monitored.” United States v. Gomez, 900 F.2d 43, 44 (5th Cir. 1990); see United States v. Bedoy, 827 F.3d 495, 511 (5th Cir. 2016).

“It is generally accepted that a prisoner who places a call from an institutional phone with knowledge that the call is subject to being recorded has impliedly consented to the recording.” United States v. Faulkner, 439 F.3d 1221, 1224 (10th Cir. 2006) (collecting cases from First, Second, Fourth, Eighth, and Ninth Circuits and rejecting contrary dictum in United States v. Feekes, 879 F.2d 1562, 1565 (7th Cir. 1989) (knowledge of risk not consent)). “In the prison setting, when the institution has advised inmates that their telephone calls will be monitored and has prominently posted a notice that their ‘use of institutional telephones constitutes consent to this monitoring,’ the inmates' use of those telephones constitutes implied consent to the monitoring within the meaning of Title III.” Willoughby, 860 F.2d at 19–20 (quoting Amen, 831 F.2d at 379).[22]

*10 Defendant argues that he could not have consented to the video tablet monitoring because he was not on actual notice of it. See Mot. Suppress 7–9, Dkt. No. 38; T1 at 6, 10–13; T2 at 195, 218–19, 229. He cites Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir. 1983), for the proposition that “knowledge of the capability of monitoring” alone cannot imply consent. Mot. Suppress 7, Dkt. No. 38; T1 at 16. He focuses on some differences between video tablets and telephones at GEO. See Mot. Suppress 2–3, 9–10, Dkt. No. 38; T1 at 11. For example, most of the written materials there described telephone monitoring, not video tablet monitoring. Mot. Suppress 2–3, Dkt. No. 38. Defendant received audio notices and was required to press 5 to accept call recording before using the telephones, but not video tablets, so, he says, he assumed that the tablet video calls were neither monitored nor recorded. T1 at 11; T2 at 163. He asserts that he was never told that his tablet video calls were monitored. T2 at 143. Because he claims not to be able to understand spoken English or to read English or Spanish, Defendant places importance on the absence of Spanish-language audio warnings before the tablet video calls. Def.'s Aff. 1, Dkt. No. 38-2; T2 at 163. The written warnings, he says, were lost on him. T1 at 9; T2 at 227.

The Government responds that Defendant knew his tablet video calls were monitored and recorded and used the video tablets anyway. Resp. 6, 8–9, Dkt. No. 46; Gov't's Suppl. Br. 4–5, Dkt. No. 79; T1 at 4; T2 at 203–12. As evidence of his actual knowledge, the Government points to the warnings that Defendant received from the detainee handbook, the form that he signed to acknowledge the handbook's policies, the orientation he viewed, and the notices on the video tablet screens and below the docking stations. Gov't's Suppl. Br. 4, Dkt. No. 79; T2 at 203–12. At the hearing, Defendant testified that he “never paid attention to,” “didn't ask about,” and “[doesn't] care about” these. T2 at 158. This, the Government argues, was “unreasonable.” T2 at 204–05. Finally, the Government draws attention to the fact that when she registered for her video-call account, the minor victim herself accepted the conditions of video-call monitoring and recording. Gov't's Suppl. Br. 4–5, Dkt. No. 79; Hilborn Aff. ¶¶ 4–7, Dkt. No. 74-1. This was enough to show the prior consent of “one of the parties,” it urges. See § 2511(2)(c).

The Court finds that Defendant was on actual notice of video-call monitoring and recording and infers from his knowing choice to make the video calls his prior consent to their interception. See Gomez, 900 F.2d at 44.

Defendant knew that his video calls were subject to monitoring and recording. In May 2022, prior to the video calls whose recordings he seeks to suppress, Defendant was recorded speaking about call monitoring on two separate video calls. T2 at 190. On May 24, he stated, “I don't fucking care if my video is being recorded.” See supra notes 8, 11 and accompanying text. And, on May 25, he asked his wife's permission to call the minor victim to capture, on the GEO recording system, recordings of her threatening him. See supra notes 10, 11 and accompanying text. The first of these shows that Defendant knew his video calls, in particular, were recorded; the second, that he was generally aware of the telecommunications surveillance at GEO. Finally, Defendant had been detained before and must have known that surveillance was pervasive in carceral environments. See Ex. 1; T2 at 158–61. Cf. United States v. Harrelson, 754 F.2d 1153, 1169 (5th Cir. 1985) (“It is unnecessary to consult the case law to conclude that one who expects privacy under the circumstances of prison visiting is, if not actually foolish, exceptionally naive; Harrelson, highly intelligent and no neophyte at prison life, was neither.”).[23]

In Faulkner, the defendant was recorded stating, “I can't hardly talk on this phone, cause you know they got it screened.... [They] got this phone tapped so I gotta be careful.” 439 F.3d at 1225. This demonstrated actual notice of the monitoring and recording policy. Id. Cf. Harrelson, 754 F.2d at 1169 (“[T]he precautions taken to prevent eavesdropping show the Harrelsons to have been aware of the possibility of it.”). So here.

*11 Because Defendant was on actual notice of the video-call recording, the Court need not decide whether the warnings and instructions that he knew or should have known were available to him placed him on constructive notice or whether constructive notice may support a showing of prior consent at § 2511(2)(c). The materials at GEO were replete with notices of video call monitoring. The detainee handbook expressly warned of call monitoring and recording.[24] New inmates signed an acknowledgment form to “reflect acknowledgment of receipt and understanding” of the handbook and of an orientation presentation. Ex. 3; T1 at 106.[25] Under the tablet docking stations, the “Tablet Rates” stated, in English and Spanish, that “all video calls are subject to monitoring and recording.” See Ex. 9; T2 at 77–79.[26] And many of these warnings also appeared on the tablet screen at the start of a tablet session. See, e.g., Exs. 10, 15, 40.[27] Defendant claims to be so illiterate that none of this could have given him notice. Def.'s Aff., Dkt. No. 38-2 (“I do not know how to read or write. I also do not understand English—written or spoken.”).[28] But he has lived his entire life and graduated from high school in the United States,[29] he sent Spanish-language text messages through the tablet,[30] and, when he received a written, Spanish-language list of his Miranda rights, he appeared to “follow[ ] with his eyes.”[31] The Court finds that he was literate enough to take notice from the warnings at GEO. But, again, in light of his actual notice of the video-call recording policy, the Court need not decide whether Defendant was also on constructive notice of it.

*12 Defendant knew that his tablet video calls were recorded, and he made them anyway. This implied his prior consent to their interception. See Gomez, 900 F.2d 44 (“Consent to interception of a telephone call may be inferred from knowledge that the call is being monitored.”); Amen, 831 F.2d at 379; Faulkner, 439 F.3d at 1224.

Defendant's last-ditch argument is that any consent he gave to some video-call recording for security purposes was not consent to this video-call recording for law-enforcement purposes. See Mot. Suppress 9–11, Dkt. No. 38. He relies on Watkins for the propositions that “[c]onsent under title III is not to be cavalierly implied” and that “consent within the meaning of section 2511(2)(d) is not necessarily an all or nothing proposition; it can be limited.” 704 F.2d at 581–82. But that was a case about a supervisor eavesdropping on her employee's personal phone calls in violation of express limitations on the company's monitoring policy, id. at 579, and the court distinguished a case where the caller “knew or should have known that the line he was using was constantly taped for police purposes.” Id. at 581 (note omitted) (citing Jandak v. Vill. of Brookfield, 520 F. Supp. 815, 824–25 (N.D. Ill. 1981)). Here, beside some exceptions for attorney and court calls, see T2 at 81, the GEO policy was not so limited, and the Court need not accept Defendant's naked assertion that these led him to suppose the exceptions to be so rife that he did not know they would not shield his video calls from interception. Defendant knew that his May 24, 2022, video call was recorded, see supra notes 8, 11 and accompanying text; now, he cannot credibly assert otherwise as to the video calls whose recordings he seeks to suppress. Finally, Defendant's claim that he might have consented to security or disciplinary monitoring, but not to law-enforcement or prosecutorial monitoring, rings hollow. “Consent, once having been given, will be deemed to have been unqualified.” Murdaugh v. Moye, No. 3:22 CV-608-CMC, 2022 WL 18584353, at *8 (D.S.C. June 1, 2022) (citing J. Carr, The Law of Electronic Surveillance § 3:4, at 2 (Dec. 2021 update) (citing United States v. Correa, 220 F. Supp. 2d 61, 65 (D. Mass. 2002), and United States v. Lewis, 406 F.3d 11, 15 (1st Cir. 2005))). Defendant's consent to interception was to interception for any purpose, and the GEO officers were entitled to pass along the resultant video recordings to law-enforcement officers and prosecutors. See Hammond, 286 F.3d at 191 (“[O]nce a recording is permitted under either of the above exceptions, it is thereafter exempted from any further restriction under Title III ....”). In short, Defendant was more like the caller in Jandak, 520 F. Supp. 815, than the one in Watkins. 704 F.2d 577.

Therefore, the Government shows, from the totality of the circumstances, that Defendant gave prior consent to the interceptions of his video calls, so the interceptions did not offend Title III. § 2511(2)(c); Gomez, 947 F.2d at 738.

Finally, because Defendant consented to the interceptions, the Court need not decide whether the minor victim gave, or was capable of giving, her own consent—an uncertain contention at best. See Lewton v. Divingnzzo, 772 F. Supp. 2d 1046, 1057 n.8 (D. Neb. 2011) (citing Thompson v. Dulaney, 838 F. Supp. 1535, 1543 (D. Utah 1993)).

*13 Because the consent exception took Defendant's video calls outside Title III's protection, the Court need not reach the law-enforcement exception. See United States v. Moore, 452 F.3d 382, 386–87 (5th Cir. 2006) (holding one Title III exception sufficient to admit evidence). This excepts “an investigative or law enforcement officer in the ordinary course of his duties” from the proscriptions of Title III. § 2510(5)(a)(ii).[32] The status of private contractors under this provision is unsettled. Cf. United States v. Cox, No. CR-17-4-H-CCL-JTJ, 2017 WL 5153405, at *5 (D. Mont. Oct. 3, 2017) (discounting importance of being “sworn member of law enforcement”), report and recommendation adopted, No. CR 17-4-H-CCL, 2017 WL 5076392 (D. Mont. Nov. 2, 2017), aff'd, 755 F. App'x 720 (9th Cir. 2019), and United States v. Rivera, 292 F. Supp. 2d 838, 842–43 (E.D. Va. 2003) (approving contractors with no discretion over what calls to monitor or record), with Murdaugh, 2022 WL 18584353, at *5 (questioning “direction or supervision” of detention center where contractor controlled access to recordings), and United States v. Faulkner, 323 F. Supp. 2d 1111, 1114 (D. Kan. 2004) (requiring officer empowered to investigate or arrest), aff'd on other grounds, 439 F.3d 1221, and Huguenin v. Ponte, 29 F. Supp. 2d 57, 61 (D.R.I. 1998) (ditto).

Here, GEO officers and Viapath staff monitored GEO video calls for different purposes and with different parameters, and GEO's supervision of Viapath was uncertain. See T2 at 90–91.[33] If this were fatal to Viapath's status under the exception, it is unclear whether the interceptions here would be wholly contaminated or could still be excepted by virtue of any independent role of the GEO officers. The former seems the better reading of the statute, which hinges on the status of the actual user of the “instrument, equipment or facility” through whose use an interception is made: here, Viapath, which only later provided the video-call recordings to Officer Gutierrez. See supra Section II.A; Hilborn Aff. ¶ 13, Dkt. No. 74-1; T1 at 61–64. Cf. § 2510(4) (“through the use”), and § 2510(5) (“which can be used”), with § 2510(5)(a)(ii) (“being used”).[34] Happily, though, the Court need not decide.

Because Defendant gave prior consent to the interceptions of his tablet video calls, the interceptions did not offend Title III. See § 2511(2)(c). Therefore, Title III does not prohibit the Court from receiving in evidence the contents of the video calls or any evidence derived from their interceptions. See § 2515. Accordingly, the undersigned RECOMMENDS that Defendant's Motion, Dkt. No. 38, be DENIED.

*14 IT IS SO ORDERED.

Signed this January 31, 2024, at Laredo, Texas.

The parties may file objections to this Report and Recommendation, unless they waive the right to do so. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc)). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days of being served a copy of the Report—or the party's waiver of the right to do so—shall bar that party from de novo review by the District Court of the proposed findings and recommendations and, except upon grounds of plain error, shall bar the party from appellate review of proposed factual findings and legal conclusions accepted by the District Court to which no objections were filed. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150–53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).