dissenting.
Our court appears to have decided already in a contrary way the same question of the meaning of the phrase in the wiretap statute, “unless such communication is intercepted for the purpose of committing any criminal or tortious act.” 18 U.S.C. § 2511(2)(d) (Supp.1989). Judge Brown, in another opinion for the Court rendered five years ago, said:
The Wiretap Statute requires the plaintiff to show that the defendants intended an illegal, tortious or injurious act other than the recording of the conversation. Even if we assume that the defendants, by the mere interception, violated these regulations, the question remains under § 2511(2)(d) whether the defendants intended to use the recorded conversation to injure Boddie.
Boddie v. American Broadcasting Cos., 731 F.2d 333, 339 (6th Cir.1984) {Boddie I) (emphasis added) (citations omitted) (citing By-Prod Corp. v. Armen-Berry Co., 668 F.2d 956, 960 (7th Cir.1982) (holding use necessary for violation of § 2511(2)(d)).
That holding, citing a Seventh Circuit case, was reiterated in Boddie II, which came to us after remand in Boddie I. In Boddie II, Judge Kennedy, writing for the Court, said:
But while the statute on its face does not punish the use of communications, as a practical matter it is doubtful ‘that a tape recording which was never used could form the basis for liability under § 2511(2)(d). As the Seventh Circuit has observed:
It would be a dryly literal reading of the statute that found a violation because at the moment of pressing the ‘on’ button a party to a conversation conceived an evil purpose though two seconds later he pressed the ‘off’ button and promptly erased the two seconds of tape.... A statute that provides for minimum damages of $1,000 per violation must have more substantial objects in view than punishing evil purposes so divorced from any possibility of actual harm. We think it is the use of the interception with intent to harm rather than the fact of interception that is critical to liability....
Boddie v. American Broadcasting Cos., 881 F.2d 267, 270 (6th Cir.1989) (Boddie II) (quoting By-Prod, 668 F.2d at 960) (emphasis added) (ellipsis in original).
Thus this Court seems to have previously held twice, following the Seventh Circuit, that “use” is necessary in order to satisfy the “criminal or tortious act” language of § 2511(2)(d). Our opinion in the present case appears to put us in conflict with the Seventh Circuit, a conflict which only the Supreme Court can resolve. It also puts us in conflict with ourselves, which our Court can only resolve by an en banc proceeding.
In the present case, there is no significant evidence from which one could infer that Garratt intended to blackmail Stockier. We do not know how Garratt a"d Vlachos intended to use the tape recording. Without a rule requiring use, like that adopted by the Seventh Circuit, and apparently by Judge Brown in Boddie I and Judge Kennedy in Boddie II, a jury could infer almost anything from the inchoate, incomplete activity. So long as no use is made of the information at all, as in this case, it is impossible to tell what use was intended and whether such use would amount to blackmail or some other wrongful act.
Thus the use requirement which this Court and the Seventh Circuit have previously adopted makes sense, much like the overt act requirement in a conspiracy case. *861Without any use of the information, or any concrete step in furtherance of a purpose to use the information wrongfully, the “bugger’s” intent remains speculative and the wrongdoing difficult to ascertain.
For the foregoing reasons I would impose a use requirement, and I therefore respectfully dissent.