
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT       No. 96-1831                            WILLIAM MORRILL GILDAY, JR.,                                Plaintiff, Appellant,                                         v.                                LARRY DUBOIS, ET AL.,                               Defendants, Appellees.                                                                        APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                                                                           Before                                 Cyr, Circuit Judge,                           Stearns,  U.S. District Judge,                         and Gertner,  U.S. District Judge.                                                                Mark M. Owen, with whom Edward S. Rooney, Jr., Andrea C. Dow and       Lyne, Woodworth & Evarts LLP were on brief for appellant.            Philip W. Silva, Department of Correction, with whom Nancy Ankers       White, Special Assistant Attorney General, was on brief for appellees       Dubois and Matesanz.            Thomas R. Teehan for appellee New England Telephone and Telegraph       Company.            Susan E. Stenger, with whom Lawrence G. Green and Perkins, Smith       & Cohen, LLP were on brief for appellee AT&T Corp.                                                                                       August 29, 1997                                                                                           Of the District of Massachusetts, sitting by designation.             Of the District of Massachusetts, sitting by designation.                    CYR, Circuit                                  Judge.  Plaintiff William Morrill Gilday,          Jr. challenges a summary judgment ruling dismissing his civil          rights claims and related claims for civil contempt against          appellees Larry Dubois and James Matesanz, of the Massachusetts          Department of Correction ("DOC"), and appellees American Telephone          and Telegraph Corporation ("AT&T") and New England Telephone and          Telegraph Company ("NET"). As Gilday failed to generate a          trialworthy issue with respect to any claim, we affirm the district          court judgment.                                          I                                     BACKGROUND                    After killing a Boston police officer during a 1970 bank          robbery in Brighton, Massachusetts, Gilday was convicted of first          degree murder and armed robbery, for which he is now serving          concurrent life sentences at the Bay State Correctional Center in          Norfolk, Massachusetts. In 1974, Gilday commenced a civil rights          action in federal district court against various FBI and DOC offi-          cials,                 see                     Gilday v.                               Webster, No. 74-4169-C, alleging interference          with attorney-client communications in violation of the Sixth and          Fourteenth Amendments, and violations of the federal and state          wiretap statutes, 18 U.S.C. SS 2510                                              et                                                 seq., and Mass. Gen. L. ch.                                             The relevant facts are related in the light most favorable to          Gilday, against whom summary judgment entered.                                                         Hegarty v.                                                                    Somerset          County, 53 F.3d 1367, 1370, n.1 (1st Cir.), cert. denied, 116 S.          Ct. 675 (1995).                                           2          272, SS 99                     et                        seq. Gilday alleged that federal and state officials          were opening his prison mail and intercepting his telephone          communications in a coordinated effort to gather information          regarding others involved in the Brighton bank robbery.                    Approximately ten years later, Gilday and four DOC          officials entered into a stipulation ("settlement stipulation")          which led to the following permanent injunction against the DOC and          the defendant DOC officials on September 12, 1984 ("the    Gilday          injunction"):                                PERMANENT INJUNCTION                     Having reviewed and approved the Settle-                    ment Stipulation dated September 10,                    1984, and after hearing, it is hereby                    ORDERED, DECREED AND ADJUDGED as follows:                         1.   All officers, agents, ser-                         vants, employees and attorneys                         of the Department of Correction                         are enjoined permanently, under                         both 18 U.S.C. S 2510 et  seq.                         and M.G.L. c. 272, S 99     et                         seq., from intercepting, en-                         deavoring to intercept, or pro-                         curing any other person to in-                         tercept or endeavor to inter-                         cept, any wire communication by                         or to plaintiff William Gilday                         without a specific court order                         or legislative authorization to                         do so, except as  specifically                         permitted by  these  statutes,                         taken together, as they have                         been amended or may be amended                                             Around the same time, Gilday brought a                                                       pro se action against          four supervisory DOC officials alleging due process violations,          denial of access to the courts, and theft of personal belongings.          See Gilday v. Boone, 657 F.2d 1 (1st Cir. 1981).                Gilday proceeded with the action against the nonsettling DOC          officials.                                        3                         and                             as                                they                                     have                                          been                                               construed                         or                            may                                be                                   construed                                             in                                                reported                         decisions that are binding  in                         this Court  or  in  the  state                         courts of Massachusetts.                         2.   [mail restrictions]                         3.   This                                   Permanent                                             Injunction,                         entered pursuant to the settle-                         ment stipulation dated Septem-                         ber 10, 1984, shall operate                         prospectively only; it   shall                         not prejudice  the  rights  of                         nonsettling defendants or,  of                         its  own  force,  affect   the                         rights of  inmates other  than                         William Gilday.          (Emphasis added.)                    Over the next ten years, however, developments in          electronic technology, as well as inmate ingenuity, prompted          increased prison-telephone abuses, such as acquiring merchandise          by fraud, promoting drug violations, soliciting murder, harassing          crime victims, witnesses, and public officials, facilitating escape          plots, violating court restraining orders, and threatening domestic          violence. The DOC responded in 1993 by inviting telephone-system          vendors to furnish, install, and maintain an advanced prison          telephone system designed to deter inmate abuses by monitoring,          recording, and "detailing" their calls.                     Ultimately, NET contracted to produce, install, and                                             For example, one DOC inmate alone managed to mischarge 271 so-          called "third-party" calls to a single business firm in one month.          See infra note 19.               Call "detailing" involves recording such billing-related          matters as the number called and the duration of the call.                                          4          maintain an inmate telephone system for all DOC facilities, which          became known as the Massachusetts Inmate Telephone System ("MITS"),          to supply both local and long distance service and remit to the DOC          forty percent of the gross revenues from inmate calls. NET in turn          subcontracted with AT&T to furnish long distance MITS service. A          third company, Telematic Corporation, contracted with AT&T and NET          to provide the electronic equipment and software needed to          provision the system.                    On April 8, 1994, the DOC promulgated new inmate          telephone regulations, see 103 C.M.R. SS 482.00   et seq. ("MITS          Regulations"), "establish[ing] Department procedures regarding          access to, use of and the monitoring and/or recording of inmate          telephones." Id. S 482.01. Under the MITS Regulations, a personal          identification number ("PIN") is randomly assigned to each inmate.          The inmate must dial the assigned PIN immediately before dialing          the telephone number, whereupon an automatic operator completes the          connection. No more than fifteen designated parties are accessible          with any PIN: ten friends and family members and five attorneys.          See id. S 482.07(3)(c); Bender Aff. q 8. The right to call          designated attorneys may not be suspended or curtailed except          during an institutional emergency,   see  id. SS 482.08-482.09,          whereas the right to call other designated parties is subject to          disciplinary restriction, see  id. SS 482.07(3)(h), 482.09. In          addition, all inmates are allowed to call three prison legal-          service organizations.                     Stickers on all MITS telephones alert inmates to the                                          5          monitoring/recording regime. All inmate calls, except pre-          authorized attorney calls and legal-service organization calls, are          automatically recorded. Certain "detailing" information is          recorded on all calls either attempted or completed. Finally, all          except attorney and legal-service organization calls may be          subjected to concurrent monitoring (                                             i.e., listened in on) by autho-          rized DOC personnel, either at random or for investigative          purposes.  See id. S 482.07(3)(d).                     In order to obtain an individual PIN, the inmate must          complete and sign a "Number Request Form," designating the attorney          and nonattorney telephone numbers which may be called. The form          advises inmates that their "acceptance and use of a PIN and use of          inmate telephones shall be deemed as consent to the conditions and          restrictions placed upon inmate telephone calls, including call          monitoring, recording, and call detail." All inmate calls must be          placed "collect."  Id. S 482.07(3)(a). Each call begins with a          recorded message    audible by both parties    that the call has          been placed "collect" by a DOC inmate and is subject to recordation          and "detailing." See                                id. S 482.07(3)(g); Kennedy Aff. q 10. Both          parties hear the entire message, but there can be no communication          until the collect call has been accepted by the person called.                                                                         See          103 C.M.R. S 482.07(3)(f); Bender Aff. q 11.                     Gilday declined to submit a PIN request form, on the          ground that the MITS contravenes the federal and state wiretap                                          6          statutes and therefore violates the Gilday injunction. At about          the same time, Gilday mailed AT&T and NET copies of the    Gilday          injunction entered September 12, 1984,                                                 see                                                     supra pp. 3-4, advising          that their provision of MITS services would violate the injunction.                    Shortly thereafter Gilday petitioned the federal district          court for a contempt citation against AT&T, NET, and various DOC          officials, claiming that the defendants were "endeavoring to          intercept" his telephone communications. Although neither AT&T nor          NET was privy to the Gilday injunction, Gilday asserted that both          received actual notice by mail,   supra pp. 6-7, and therefore          knowingly aided and abetted the alleged violations by the DOC          defendants. Finally, Gilday alleged, the defendants were depriving          him of his "federal right to be free of any interception of his          wire communications," as well as his Sixth Amendment right to          counsel and his Fourteenth Amendment right of access to the courts,          by restricting consultation with counsel regarding six pending          judicial proceedings.                     The district court entered summary judgment for the          defendants, on the ground that the Gilday injunction bans neither          monitoring nor recording, but only "interceptions." It noted that          no secretive, nonconsensual monitoring or recording     hence no                                             Consequently, for the most part Gilday has been without          telephone access since the MITS went into operation. Under a          stipulation among the parties, however, he has been allowed limited          telephone use in order to communicate with counsel regarding his          unrelated appeal in Gilday v. Callahan, 866 F.Supp. 611 (D. Mass.          1994),                 aff'd, 59 F.3d 257 (1st Cir. 1995),                                                    cert.                                                          denied, 116 S. Ct.          1269 (1996).                                          7          "interception"                            had occurred under either wiretap statute, since          all recording and monitoring is well advertised as required by the          MITS Regulations.  See supra p. 6. The district court reasoned          that inmates render the MITS monitoring/recording regime consensual          by executing the request form and utilizing the MITS. And since it          found the term "interception" ambiguous at best, the district court          determined to resolve any interpretive doubts favorably to the          defendants. Finally, it dismissed the Gilday claims relating to          call "detailing," on the ground that                                               Langton v.                                                          Hogan, 71 F.3d 930          (1st Cir. 1995), had already endorsed the MITS practice in this          regard. Accordingly, it concluded that the attendant recording and          monitoring did not constitute an "interception" under either the          federal or state wiretap statute, thus did not contravene the          Gilday injunction.                    Thereafter, the district court dismissed the section 1983          claims as well, on the ground that Gilday retained all mail          privileges, access to a prison law library, the right to meet with          counsel and, under the MITS regulations, the right to conduct          unmonitored telephone communications with five attorneys and three          legal-service organizations.                                              The district court likewise determined that the defendant DOC          officials came within the "law enforcement" exceptions to the          respective wiretap statutes.    See 18 U.S.C. S 2510(5)(a)(ii)          (excluding interceptions by an "investigative or law enforcement          officer in the ordinary course of his duties"); Mass. Gen. L. ch.          272, S 99(D)(1)(c) (exempting federal law enforcement officials);          see also, e.g., United                                  States v.  Sababu, 891 F.2d 1308, 1328-29          (7th Cir. 1989) (concluding that a prison monitoring regime,          conducted as part of an "institutionalized, ongoing policy[,]" does          not constitute "interception").                                          8                                         II                                     DISCUSSION          A.   Standard of Review                    A summary judgment ruling is reviewed                                                         de                                                            novo and must be          affirmed if the record, viewed in the light most favorable to the          nonmoving party, "reveals no trialworthy issue of material fact and          the moving party is entitled to judgment as a matter of law."          Velez-Gomez v. SMA                              Life                                   Assur.                                          Co., 8 F.3d 873, 874-75 (1st Cir.          1993). Moreover, we may affirm "on any independently sufficient          ground."  Polyplastics,                                   Inc. v.  Transconex,                                                        Inc., 827 F.2d 859,          860-61 (1st Cir. 1987).           B.  The Contempt Claims                     Gilday mounts several challenges to the district court          rulings on the contempt claims. We address these arguments in          turn, mindful that it was for Gilday to establish by "'clear and          convincing evidence[,]'" Project B.A.S.I.C. v. Kemp, 947 F.2d 11,          16 (1st Cir. 1991) (quoting  Langton v. Johnston, 928 F.2d 1206,          1220 (1st Cir. 1991)), that the particular defendant violated an          unambiguous consent decree "that left no reasonable doubt as to          what behavior was to be expected,"                                             id. at 17.  See                                                             also                                                                  Porrata v.          Gonzalez-Rivera, 958 F.2d 6, 8 (1st Cir. 1992) (stating that          complainant must clearly establish that "a lucid and unambiguous          consent order has been violated");  NBA Properties, Inc. v. Gold,          895 F.2d 30, 32 (1st Cir. 1990) (similar). Moreover, "'the party          enjoined must be able to ascertain from the four corners of the          order precisely what acts are forbidden.'"  Kemp, 947 F.2d at 17                                          9          (quoting Drywall Tapers & Painters of Greater N.Y., Local 1974 v.          Local 530 of Operative Plasterers & Cement Masons Int'l Ass'n                                                                      , 889          F.2d 389, 395 (2d Cir. 1989) (citation omitted));                                                            see                                                                also                                                                     Reed v.          Cleveland Bd. of Educ.                               , 607 F.2d 749, 752 (6th Cir. 1979) (stating          that judicial order must "clearly tell a reasonable person what he          is required to do or abstain from doing"). From these requirements          flows the important corollary that courts are to construe ambigu-          ities and omissions in consent decrees as "'redound[ing] to the          benefit of the person charged with contempt.'"                                                         NBA Properties                                                                      , 895          F.2d at 32 (quoting Ford v. Kammerer, 450 F.2d 279, 280 (3d Cir.          1971) (per curiam));  see also Kemp, 947 F.2d at 16 (same).               1.   Issue Preclusion                     As a threshold matter, Gilday insists that the DOC          defendants are collaterally estopped from contending that the MITS          does not violate the  Gilday injunction, because this issue was          resolved in Langton v.  Hogan, No. 79-2167-Z, 1995 WL 96948 (D.          Mass. Feb. 21, 1995), which culminated in a permanent injunction          ("the Langton injunction") almost identical to the Gilday injunc-          tion.                    Collateral estoppel, or issue preclusion, bars          relitigation of any issue "                                    actually decided in previous litigation          'between the parties, whether on the same or a different claim.'"          Grella v.                    Salem Five Cent Sav. Bank                                            , 42 F.3d 26, 30 (1st Cir. 1994)          (quoting                   Dennis v.                             Rhode Island Hosp. Trust                                                   , 744 F.2d 893, 899 (1st          Cir. 1984) (emphasis in original) (quoting                                                     Restatement (Second) of          Judgments, S 27 (1982)). Although "[a]n issue may be 'actually'                                         10          decided even if it is not   explicitly decided, for it may have          constituted, logically or practically, a necessary component of the          decision reached in the prior litigation,"                                                    Grella, 42 F.3d at 30-31          (emphasis in original), the narrow, fact-based district court          decision in                      Langton had simply declined to                                                    modify the injunction in          that case, to permit monitoring and recording,                                                        because                                                                there                                                                      was                                                                          no          evidence of  inmate-telephone  abuse  by Langton  or  his  fellow          plaintiff. Thus, as the district court ruling on the petition for          modification in  Langton neither addressed nor implicated the          question whether the MITS violates either the state or federal          wiretap statute, see  Langton, No. 79-2167-Z, 1995 WL 96948, it          neither "actually" nor "necessarily" determined that the MITS          regime violated the  Langton injunction, let alone the     Gilday          injunction. See                           Grella, 42 F.3d at 30 (stating that "the determi-          nation of the issue must have been essential to the judgment");          see also NLRB v. Donna-Lee                                      Sportswear                                                 Co.,                                                      Inc., 836 F.2d 31, 34          (1st Cir. 1987) (same).               2.   Claim Preclusion                    Gilday next contends that the 1984 consent decree          precludes the DOC defendants from claiming that the MITS does not          violate the Gilday injunction, because our decision in Langton v.          Hogan, 71 F.3d 930, 933-35 (1st Cir. 1995), involving a similar                                             Furthermore, a determination that the MITS violated the          Langton injunction    with its materially different language and          discrete purpose, see infra, pp. 12-25    could not constitute a          determination that the                                 Gilday injunction, with its less restrictive          language and scope, see infra p. 25, had been violated.                                         11          injunction, held that the DOC was precluded from contesting the          meaning of the same state and federal wiretap statutes there          involved without first obtaining a court order modifying the          injunction. Once again we are unable to agree, as the     Langton          panel decision is inapposite for several reasons.                     First, although the parties to a consent decree are bound          by traditional preclusion principles and may not litigate claims          necessarily resolved by the decree, see id. at 933-34, the Gilday          injunction    unlike the Langton injunction    expressly provided          that reported decisions authoritatively construing the relevant          state and federal wiretap statutes (hereinafter: "authoritative          decisions") were to control their future construction for all          purposes material to the  Gilday injunction.   See supra pp. 3-4          ("All [DOC agents] are enjoined permanently . . . from . . .          endeavoring to intercept . . . any wire communication by or to          [Gilday] . . . except as specifically permitted by these statutes          . . .                as                   they have been construed or                                               may                                                   be                                                      construed                                                                in [authori-          tative decisions]."). (Emphasis added.) Thus, the construction          suggested by Gilday would ignore language expressly limiting the          scope of the                       Gilday injunction.  See                                               Mackin v.                                                         City of Boston                                                                      , 969          F.2d 1273, 1277 (1st Cir. 1992) (declining to construe consent          decree so as to "overlook[] the language of the decree itself").          See              also                   United States                                v.                                    ITT Continental Baking Co.                                                            , 420 U.S. 223,          236-37 (1975) (construing consent decrees as contracts);  System-          ized                of                   New                       England,                                Inc. v. SCM,                                             Inc., 732 F.2d 1030, 1034 (1st          Cir. 1984) (noting that courts are to adopt constructions that                                         12          "give meaning and effect to every part of a contract and reject          those which reduce words to mere surplusage"). Accordingly, the          Gilday injunction did not preclude reliance on intervening authori-          tative decisions construing the state and federal wiretap statutes.          Instead, "construed as it is written," United                                                         States v. Armour                                                                           &          Co., 402 U.S. 673, 682 (1971), the Gilday injunction, unlike the          Langton injunction, plainly envisioned their consideration.                    Second, although the  Langton panel majority concluded          that the DOC had relinquished any right to litigate the meaning of          these wiretap statutes as against the                                               Langton inmates,                                                                see                                                                    Langton,          71 F.3d at 933-34, it did so because it believed those inmates          otherwise would have                               gained                                      nothing                                                 beyond a mere promise by the          DOC to obey the law:                     The usually understood meaning of a Settlement                    Stipulation is that each party is agreeing to                    give up something    to yield on one or more                    reasonably plausible contentions of law, or                    fact, or mixed-law-fact issues. "[T]he agree-                    ment reached normally embodies a compromise;                    in exchange for the saving of cost and elimi-                    nation of risk, the parties each give up                    something they might have won had they pro-                    ceeded with the litigation." When making an                    agreement for a consent decree, the parties to                    a case are agreeing not to press any of their                    disputes to decision in court. The parties                    forego "their right to litigate issues in-                    volved in the case and thus save themselves                    the time, expense and inevitable risk of liti-                    gation."                                             The Langton injunction prohibited the DOC defendants from          intercepting inmate wire communications except as specifically          permitted by the federal and state wiretap statutes "as they have          been               construed in reported decisions that                                                   are binding on this court          or in the state courts of Massachusetts." Langton, 71 F.3d at 931          (emphasis added).                                         13                     Id. (quoting Armour                               &                                  Co., 402 U.S. at 681) (internal citation          omitted).                    On the other hand, in the present case the consent decree          secured Gilday a substantial independent benefit unavailable to the          Langton plaintiffs. As the district court recognized, Gilday had          alleged in his 1974 action against the DOC that he was the target          of two secret federal and state law enforcement efforts, directed          by the FBI and code-named "STOP" and "GILROB," aimed at gathering          information about his as-yet unapprehended accomplices in the          Brighton bank robbery.   See supra p. 3. In securing the 1984          consent decree, therefore, Gilday obtained permanent injunctive          relief from any  DOC  participation in current or future wire-          communication interceptions unlawfully directed against him by          these state and federal law enforcement agencies    consideration          unavailable to the                             Langton litigants. Accordingly, notwithstanding          that the                   Gilday consent decree permitted the DOC to litigate future          unresolved issues relating to the meaning of the applicable wiretap          statutes, Gilday obtained substantial consideration for entering          into the settlement with the DOC. Thus, the        Langton panel          majority's concerns over a lack of meaningful consideration for the          Langton plaintiffs' consent are not implicated to the same degree          in the present context.                     Finally, the   Langton and    Gilday cases presented          themselves in materially different ways on appeal. The    Langton          panel was asked to review,  inter alia, a district court ruling          denying a DOC petition to modify the Langton injunction.  See id.                                         14          at 931. On appeal, the DOC claimed that the district court had          broadened the injunction impermissibly in favor of the    Langton          inmates.  Id. at 933. The   Langton panel majority first decided          that the parties had relinquished their respective rights to          litigate the meaning of the wiretap statutes underlying the          injunction, and then determined that no authoritative decision,          existing at the time the Langton injunction issued, specifically          supported the challenged MITS monitoring and recording practices.                    Finally, the   Langton majority went on to survey          subsequent decisional law, simply noting    without resolving the          merits    that "reasonable [competing] arguments can be advanced"          as to whether the challenged MITS monitoring and recording regime          violated the federal wiretap statute. Id. at 935-37; see                                                                    also                                                                         id.          at 940 ("Nor does the panel majority hold that the present regime          is unlawful under the federal and state statutes but only that          reasonable arguments can be made on both sides.") (Boudin, J.,          dissenting) (emphasis in original). Thus, the   Langton majority          simply decided that the DOC had failed to carry its burden of          demonstrating any change in the law, or the facts, which would          warrant modification of the injunction.      See  id. at 937-38          (sustaining modification ruling as "appropriately tailored to the          only changes in law or in fact disclosed on the record before the          district court").                     In the present case, on the other hand, Gilday alleges          DOC violations of an injunction which expressly contemplates that          authoritative decisions subsequent to the  Gilday injunction may                                         15          determine whether a violation has occurred.  See supra pp. 12-13.          Moreover, since the                              Langton panel majority never reached the merits          regarding the lawfulness of the MITS regime under either wiretap          statute, see  supra p. 15, we may consider afresh whether the          challenged MITS practices violate the                                                Gilday injunction. Finally,          we are required to review the district court's summary judgment          ruling against Gilday                                de                                   novo.  See                                             Velez-Gomez, 8 F.3d at 874-75.                     For the foregoing reasons, we conclude that the DOC is          entitled to litigate the meaning of the applicable wiretap          statutes.                3.   The Gilday Injunction                    Gilday argues that the DOC defendants violated the                                                                      Gilday          injunction by endeavoring to monitor and record his wire communica-          tions in violation of the state and federal wiretap statutes. The          linchpin in this argument is that no authoritative decision          "specifically" construes either the federal or state wiretap          statute to "permit" the inmate-telephone system established under          the MITS. In other words, Gilday argues that the injunction is          violated absent an authoritative decision validating either the          MITS regime itself or substantially similar practices in a          comparable prison context. At its most particular level, this          contention would necessitate an authoritative decision declaring          the challenged MITS practices compatible with the applicable          wiretap statutes.                    We test this contention against the language employed in          the Gilday injunction, viewed in its unique litigation context,                                         16          including the particular circumstances surrounding its formation          and the basic purposes it was designed to serve.         See  ITT          Continental                        Baking                                Co., 420 U.S. at 238 (construing ambiguous          language in consent decree in light of "the circumstances surround-          ing [its] . . . formation");   see also  Massachusetts                                                                  Ass'n                                                                         for          Retarded                    Citizens,                              Inc. v. King, 668 F.2d 602, 607-08 (1st Cir.          1981) (construing consent decree in light of its language, the          circumstances surrounding its formation, and its basic purposes);          Cornelius v.                       Hogan, 663 F.2d 330, 333 (1st Cir. 1981) (noting that          court construing ambiguous consent decree may "inquire into the          parties' intent and the circumstances surrounding the decree in          order to select the most reasonable interpretation").                     As a preliminary matter it is necessary to note, however,          that no violation of the injunction can be found unless Gilday          first established an "interception," as defined under either the          federal or Massachusetts wiretap statute, based on "clear and          convincing evidence,"                                Kemp, 947 F.2d at 16 (citation and quotation          marks omitted).  See infra pp. 25-27, 29-30. Therefore, Gilday's          insistent contention on appeal                                            that                                                no MITS practice can ever be          allowed under the     Gilday injunction unless it has been          "specifically permitted" beforehand by an authoritative decision                                                                                      cannot succeed.                    Moreover, even assuming Gilday were to demonstrate an          "interception," the injunction expressly excepts from its reach any          practice "specifically permitted" under the wiretap statutes as          construed in authoritative decisions, see supra pp. 3-4, and the                                         17          term "specifically permitted" is susceptible to various reasonable          interpretations.  On the one hand, "specifically permitted" may be          read to require an authoritative decision that the MITS regime,                                                                          as          applied directly to Gilday, comports with the applicable wiretap          statutes.  See Webster's                                    Third                                          New                                              International                                                            Dictionary 2187          (1986) (noting that term "specific" may connote restriction "to a          particular individual"); see also Barnett                                                     Bank                                                          of                                                             Marion                                                                     County,          N.A. v. Nelson,                                  U.S.                                           ,                                                , 116 S. Ct. 1103, 1111 (1996)          (noting that "'[s]pecifically'                                         can mean 'explicitly, particularly,          [or] definitively'") (quoting                                        Black's Law Dictionary                                                              1398 (6th ed.          1990) (emphasis added)). Under such a reading, an authoritative          decision would be unavailing to the DOC defendants unless it          explicitly addressed the MITS monitoring and recording of wire          communications involving Gilday. On the other hand, "specifically          permitted" may contemplate simply an authoritative decision          upholding interceptions involving some other DOC inmate or DOC          inmates in general. See                                   Webster's Third New International Dictio-          nary at 2187 (noting that "specific" may merely restrict to a          particular situation). Under these interpretations, therefore,          Gilday would need to demonstrate simply an absence of authoritative          decisions specifically permitting the challenged MITS practices as          applied directly to him or to similarly situated inmates.     See                                              Ambiguity is the "condition of being understood in more than          one way."   Webster's                                   Third                                          New                                              International                                                             Dictionary 2187          (1966);                  see                      also William Empson,                                           Seven Types of Ambiguity                                                                  1 (2d ed.          1966) (defining ambiguity as "any verbal nuance, however slight,          which gives room for alternative reactions to the same piece of          language").                                          18          Langton, 71 F.3d at 935-37 (noting no reported decision "holding          that this type of prison telephone monitoring system" meets          "consent" exception to federal wiretap statute).                    Alternatively, at a more universal level, "specifically          permitted" may simply contemplate an authoritative decision          upholding the general types or kinds of monitoring and recording          practices prescribed by the MITS, without regard to whether the          practices were employed in a prison context.    See 2                                                                 The                                                                      Oxford          English Dictionary                            2949 (Compact Ed. 1987) (defining "specifically"          as "[i]n something of the same kind");  see also Webster's                                                                       Third          New                International                               Dictionary at 2187 (defining "specific" as          "constituting or falling into the category specified"); Webster's          New                World                       Dictionary                                   of                                      American                                                English 1287 (3d ed. 1988)          (defining "specific" as being "of a special, or particular, sort or          kind"); Webster's                               Ninth                                     New                                          Collegiate                                                     Dictionary 1132 (1989)          (defining "specific" as "sharing or being those properties of          something that allow it to be referred to a particular category").          Under the latter interpretation, of course, Gilday would need to          demonstrate an absence of authoritative decisions vindicating the          kinds of practices utilized under the MITS, without necessary          regard to the exact context in which the practices were applied,          thereby implicating any relevant authoritative decision addressing          the applicable wiretap statutes. Thus, under the latter          interpretation only                              unlawful MITS practices would be barred by the                                         19          Gilday injunction.                      Ambiguities in an injunctive decree are construed in the          light most favorable to the alleged contemnor. See                                                              Kemp, 947 F.2d          at 16; NBA                      Properties, 895 F.2d at 32; see also United                                                                  States v.          O'Quinn, 913 F.2d 221, 222 (5th Cir. 1990);  In re Baldwin-United          Corp., 770 F.2d 328, 339 (2d Cir. 1985);    New                                                           York                                                                Tel.                                                                     Co. v.          Communication Workers of America, 445 F.2d 39, 48 (2d Cir. 1971);          Ford, 450 F.2d at 280; 11 C. Wright and A. Miller,        Federal          Practice                    &                      Procedure:                                   Civil S 2955, at 310 (1995 & Supp. 1996)          (same). For present purposes, therefore, the   Gilday injunction          would be construed as banning only unlawful interceptions.                     The litigation context underlying the   Gilday consent          decree likewise commends the latter construction.        See  ITT          Continental                        Baking                                Co., 420 U.S. at 238 (construing ambiguous          consent-decree language in light of "circumstances surrounding          [its] formation . . .");                                   see                                       also                                            King, 668 F.2d at 607 (similar).          Throughout the district court action terminated by the consent          decree, the DOC defendants steadfastly denied "monitoring,"                                              The latter construction is strongly suggested by other          language in the  Gilday consent decree itself, which explicitly          links its injunctive ban to the relevant federal and state wiretap          statutes, thereby indicating that the ban was not meant to prohibit          conduct lawful under the wiretap statutes themselves       either          because the practice in question did not constitute an          "interception" or it constituted a lawful "interception"      as          construed in authoritative decisions, extant or forthcoming.  See          Armour & Co.                     ,                        402 U.S. at 678-80 (construing particular provisions          in light of other language in decree);  Brewster v. Dukakis, 687          F.2d 495, 499 (1st Cir. 1982) (construing consent decree provision          in relation to other language in decree);                                                                                                                                                         United                                                           States                                                                  v.                                                                     City of          Miami, 2 F.3d 1497, 1507-08 (11th Cir. 1993) (construing "consent          decree as a whole").                                          20          "recording," or "intercepting" any wire communication involving          Gilday. Thus, implicit in the stance taken by Gilday now is the          suggestion that the DOC defendants impliedly conceded prior          violations of the relevant wiretap statutes simply by entering into          the stipulation of dismissal, whereas the record flatly contradicts          any such concession. Instead, the stipulation of dismissal          substantiates the view that the DOC defendants simply agreed to an          injunction which required their compliance with the applicable          federal and state law governing "interceptions."                    Viewed in context, therefore, the Gilday consent decree             entailing no resolution of the central dispute as to whether the          DOC defendants ever "monitored" or "recorded," let alone "inter-          cepted," any Gilday wire communication     is most harmoniously          construed as an agreement that the DOC defendants were to refrain          from any "interception" violative of either wiretap statute, as                                              The stipulation of dismissal stated:                     By entering into this stipulation, these                    [signatory] defendants do not admit, but rath-                    er, generally deny that they have ever violat-                    ed the plaintiff's rights under . . . the                    federal wiretapping statute, 18 U.S.C. S 2150                    et seq., [and] the state wiretapping statute,                    M.G.L. c. 272, SS 99 et seq. . . . as alleged                    by the plaintiff. The                                           defendants                                                      specifically                    deny that any  of them, or anyone acting in                    concert with any of them, ever intercepted or                    monitored                              any                                  of                                     the                                         plaintiff's                                                     wire                                                          communi-                    cations                            by                               any                                   means,                                          lawful                                                 or                                                    unlawful . . .                    .          See Settlement Stipulation: Claims Against Defendants Fair, Vose,          Hall and Callahan, Gilday v. Fair, et al., Civ. A. No. 74-4169-C          (emphasis added).                                         21          determined under                           either                                  existing                                          or                                             future authoritative decisions.          That is to say, the Gilday consent decree bans only unlawful DOC          monitoring and recording practices.  See Settlement Stipulation:          Claims Against Defendants Fair, Vose, Hall and Callahan,                                                                   Gilday v.          Fair, et al., Civ. A. No. 74-4169-C, discussed supra pp. 20-21 &          n.12; see also supra pp. 3-4.                    The suggested construction comports with the    Langton          panel majority opinion as well, which held that the                                                             Langton injunc-          tion banned any "interception" absent "a specific court order or          legislative authorization to do so, except as specifically          permitted by these statutes, . . . as they have been construed in          reported decisions that are binding in this Court or in the state          courts of Massachusetts."    Langton, 71 F.3d at 931 (emphasis          added). Thus, the Langton panel majority reasoned that the consent          decree was to be construed as requiring the DOC defendants to          refrain,                   in                      perpetuity,                                  from                                       contesting                                                 the                                                     meaning                                                             of                                                                the                                                                    relevant          state and  federal wiretap  statutes "as construed in reported          decisions that [were] binding in [the federal district court] or in          the state courts of Massachusetts"    at  the  time  the  Langton          injunction was entered, see id. at 931, 933-35, as distinguished          from merely requiring the DOC defendants to refrain from unlawful          interceptions. As the  Langton panel majority viewed the matter,          any other approach threatened to render the terms of the  Langton          injunction "illusory    stating nothing beyond what was already          forbidden by law                           before                                  the                                      Permanent                                               Injunction                                                          was                                                              entered."  Id.          at 933 (emphasis added); but see id. at 940 (Boudin, J., dissent-                                         22          ing); see also supra pp. 13-14.                    The panel majority relied as well on the final section in          the              Langton injunction, which stated in terms similar to the                                                                      Gilday          injunction, see supra p. 4, that the injunction "shall not of its          own force affect the rights of inmates of the Department other than          William Langton and David LeBlanc."  See Langton, 71 F.3d at 933.          It reasoned that had the DOC promised merely to obey the law, no          purpose would have been served by the quoted provision.  See id.                    Once again, however, the two cases presented themselves          on appeal in materially different postures. First, as discussed          supra pp. 14-16, the repeated observation by the   Langton panel          majority, see Langton, 71 F.3d at 933-37    that no then-existing          authoritative decision specifically permitted the challenged MITS          practices and that the                                 Langton decree would be rendered meaningless          were it to be construed as a mere promise to obey the law     is          inapposite to the instant context. That is, central to the present          analysis is the explicit language in the                                                  Gilday injunction ("or                                                                         may          be construed in reported decisions"),  see  supra p. 4 (emphasis          added)    nowhere to be found in the  Langton injunction, see 71          F.3d at 931    which in no sense purports to prohibit either (i)          these parties from litigating open questions as to the meaning of          the applicable wiretap statutes, or (ii) our consideration of later          authoritative decisions upholding monitoring and recording          practices of the kind prescribed by the MITS,                                                        see                                                            infra pp. 45-48.          Second, since the settlement stipulation and the consent decree in          Gilday were entered into while the parties in Langton were still                                         23          litigating the initial action which led to the                                                         Langton injunction,          paragraph 3 in the   Gilday injunction ( viz., "[t]his Permanent          Injunction . . . shall not . . . affect the rights of inmates other          than William Gilday[,]") served the discrete purpose of not          disturbing the rights of the Langton inmates whose initial action          against the DOC was to remain in litigation for two months after          the consent decree was entered in Gilday.                    Accordingly, unlike the corresponding provision in the          Langton injunction, paragraph 3 in the     Gilday injunction is          entirely consistent with the view that the                                                    Gilday injunction simply          contemplates that the DOC not violate the applicable wiretap          statutes. For these reasons we conclude, notwithstanding their          similarities, that the  Gilday injunction is substantially less          restrictive in scope than the   Langton injunction, in that it          unambiguously enjoins only   unlawful recording and monitoring          practices by the DOC.                                              The                    Gilday injunction was entered on September 12, 1984; the          Langton injunction, on November 16, 1984.                It is noteworthy as well that the complaint in the action          which gave rise to the Gilday injunction alleged that Gilday "has          never consented, nor upon information and belief has any person          with whom he communicated consented, that wire communications to or          from him be intercepted or monitored in any way." Second Amended          Complaint, Gilday v. Webster,                                         et                                            al., No. 74-4169-C. The Gilday          complaint in the present action indicates that his concern in the          former action was not with   all interceptions of his telephone          calls, however, but only with interceptions unlawful under the          applicable wiretap statutes because allegedly conducted without the          requisite consent. Thus, the more narrow concern reflected in the          present complaint comports with the view that the Gilday settlement          stipulation and consent decree were meant to ban only    unlawful          interceptions.                                          24                    A.   The Massachusetts Wiretap Act                    We must now consider whether Gilday demonstrated by          "clear and convincing evidence," Kemp, 947 F.2d at 16, that the          challenged MITS practices constitute unlawful interceptions under          the applicable wiretap statutes, beginning with the Massachusetts          Wiretap Act, bearing in mind that it was for Gilday to show that          the DOC defendants "violated a clear and unambiguous order that          left no reasonable doubt as to what behavior was to be expected"          and that the defendants were "'able to ascertain from the four          corners of the order precisely what acts are forbidden.'"  Id. at          17 (quoting Drywall                               Tapers, 889 F.2d at 395). First, we inquire          whether the monitoring, recording, and call "detailing" practices          prescribed by the MITS Regulations are "interceptions" under the          Massachusetts Wiretap Act, Mass. Gen. L. ch. 272, S 99(B)(4).          Second, should Gilday successfully surmount the first hurdle, we          determine whether any such interpretation is nevertheless permitted          under any authoritative decision binding on the federal district          court. Finally, we conclude that Gilday failed to prove either          that the monitoring and recording practices conducted pursuant to          the MITS constitute "interceptions" under the Massachusetts Wiretap          Act, or that the MITS call "detailing" practices were clearly          prohibited under the Gilday injunction.                    1.   Monitoring and Recording                    We begin by noting that the Gilday injunction prohibits          only "interceptions" under the applicable statutes and not call          monitoring, recording, or "detailing"                                                per                                                    se. The term "intercep-                                         25          tion," as used in the Massachusetts Wiretap Act, "means to                                                                    secretly          hear,                secretly record, or aid another to                                                   secretly hear or                                                                    secretly          record, the contents of any wire or oral communication through the          use of any intercepting device . . . ." Mass. Gen. L. ch. 272, S          99(B)(4) (emphasis added).                    The Massachusetts courts have interpreted this "secrecy"          requirement literally.  See  Commonwealth v. Jackson, 349 N.E.2d          337, 339-40 (Mass. 1976) (holding that secrecy is essential to          establishing a violation of Massachusetts Wiretap Act); see  also          District Attorney v. New England Tel. & Tel. Co., 399 N.E.2d 866,          869 (Mass. 1980) (stating that                                        secret recordation of incoming calls          violates Massachusetts Wiretap Act). A secretive interception          occurs under the Massachusetts Wiretap Act unless both parties to          a wire "communication" had "actual knowledge" of the          "interception,"                          see,                               e.g.,                                     Jackson, 349 N.E.2d at 340, which may be          established by evidence that the parties were informed that their          conversation was being intercepted, or by "clear and unequivocal          objective manifestations of knowledge . . . sufficiently probative          of a person's state of mind as to allow an inference of knowledge."          Id.                    As the district court correctly concluded, the recording          and monitoring practices at issue here were in no sense          surreptitious. Inmates are informed in advance, both by the MITS          Regulations                         a matter of public record                                                      and the individualized          PIN Request Form advisory as well, that their MITS calls will be          monitored and recorded. Moreover, inmates are reminded by stickers                                         26          affixed to each phone that all non-attorney calls are subject to          the monitoring and recording practices prescribed by the MITS          Regulations. Finally, a prerecorded message informs  both parties             before the parties can communicate    that all call "contents"          will be recorded.                    Against this backdrop, the Massachusetts Supreme Judicial          Court ("SJC") has decided that even inmates who "have not consented          to the [MITS] monitoring and recording"       such as Gilday               nonetheless have been "made aware of the procedure and its require-          ments."  Cacicio v. Secretary of Public Safety, 665 N.E.2d 85, 91          (Mass. 1996) (rejecting constitutional challenge to MITS          Regulations). Therefore, the SJC held, "[t]he [MITS] monitoring          and recording is not surreptitious in any sense."  Id.                    Accordingly, we now hold that whatever recording and          monitoring of oral communications takes place under the MITS regime          does not constitute an "interception" under the Massachusetts          Wiretap Act, as it is not secretly conducted.   See Jackson, 349          N.E.2d at 339 (non-secret recordings not "interceptions" under          Massachusetts Wiretap Act).                     2.   Call "Detailing"                    The Massachusetts Wiretap Act defines the term          "interception" as a secret acquisition of "the contents of any wire                                              The SJC did not differentiate between recording of contents          and recording of billing-related features (  i.e., "detailing").          Instead,                   Cacicio simply described the prerecorded message as notice          to the inmate and the person called that the call would be recorded          in its entirety.  See Cacicio, 665 N.E.2d at 88.                                         27          or oral communication                                through                                        the                                            use                                                of                                                   any                                                       intercepting                                                                    device .          . . ." Mass. Gen. L. ch. 272, S 99(B)(4) (emphasis added).          Elsewhere the statute explicitly excepts certain telephone          equipment from its definition of "intercepting device":                    The term "intercepting device" means any                    device or apparatus which is capable of . . .                    recording a wire or oral communication . . .                    other than any telephone or telegraph                    instrument, equipment, facility, or a                    component thereof . . . being used by a                    communications common carrier in the ordinary                    course of its business.                      Mass. Gen. L. ch. 272, S 99(B)(3)(b). Thus, no "interception"          occurs under the Massachusetts Wiretap Act if the device used to          acquire the contents of a wire communication comes within the ambit          of the "telephone equipment" exception.                      The MITS employs a sophisticated network of computers and          associated telephone equipment, including "controller boards"              electronic call processing devices attached to each prison          telephone                       supplied, installed, and maintained by NET.  The NET          equipment automatically screens approved outside telephone numbers          from unapproved numbers, routes inmate calls to approved telephone          numbers outside the prison, plays the prerecorded message to both          parties, and identifies calls placed to listed attorneys so as to                                              The SJC has held that a device which records information          relating to the identity of the parties to a call or the existence          of a wire communication, records the "contents of [a] wire . . .          communication."   District                                       Attorney                                                 for                                                      Plymouth                                                               Dist. v.   New          England                   Tel.                        &                          Tel.                               Co., 399 N.E.2d 866 (Mass. 1980), discussed          infra pp. 33-35.                NET procures the telephone equipment from AT&T and Telematic          Corporation under various subcontracts.                                         28          preclude their monitoring and recordation. All call "detail" is          recorded automatically by the NET telephone equipment in order to          generate billing reports and safeguard the NET equipment against          fraudulent use by inmates (  i.e.,  inter alia, unapproved long          distance and collect calls).                    The monthly revenue statements NET provides under its          contract with the DOC reflect "detail" on all inmate calls placed,          including the number dialed, the length of the call, and other          billing-related and revenue-related information. In addition, the          NET site administrator at each prison facility regularly generates          a so-called "Fraud Report," listing all outside telephone numbers          to which the total number of calls placed by inmates within the          reporting period exceeded a specified level. The Fraud Report is          forwarded to NET and the DOC for use in investigating fraudulent          telephone usage.                                              The MITS is similar to the telephone systems utilized by the          Bureau of Prisons, as well as in certain state prisons such as New          York and Tennessee.   See Bender Aff. q 6. However, the MITS          utilizes devices far more sophisticated than the "in-house" devices          generally considered by this court or the Massachusetts courts.          See,               e.g.,                     Williams v.                                 Poulos, 11 F.3d 271, 275-76 (1st Cir. 1993)          (involving "custom made" system consisting of "small alligator          clips" and a VCR attached to a microphone cable);  Griggs-Ryan v.          Smith, 904 F.2d 112, 114 (1st Cir. 1990) (involving recording          device attached by landlady to extension telephone); Jackson, 349          N.E.2d at 338 (involving cassette recorder microphone attached to          earpiece in telephone receiver).                Among the abuses the MITS is designed to stop are so-called          "third-party" calls placed by inmates to large outside          establishments through which the inmate can request another                                                                     outside          line, then place a long-distance call at the expense of the          establishment whose number the inmate called in the first instance.          See, e.g., supra note 4.                                         29                    Within the above-described evidentiary framework, we now          inquire whether the MITS call "detailing" conducted by NET is          excepted from the Massachusetts Wiretap Act definition of          "intercepting device" in S 99(B)(3)(b).    See  supra pp. 28-29.          First, we note that NET is a "communication common carrier" within          the contemplation of S 99(B)(3).      See District                                                                Attorney                                                                          For          Plymouth                    Dist. v.  Coffey, 434 N.E.2d 1276, 1280 (Mass. 1982).          Second, Gilday does not contend that the processor computers and          controller boards used by NET for billing-related purposes are not          "equipment . . . being used in the ordinary course of [NET's]          business."  See Reply Brief for the Plaintiff, Appellant at 6 n.8          ("Gilday does not argue that NET is precluded from using call          detail for billing purposes."). Nor does any authoritative          decision suggest that a communication common carrier which          "details" calls in order to generate billing reports or protect its          equipment from fraudulent abuse, does not do so in the ordinary          course of its business.  Thus, Gilday has not demonstrated by          "clear and convincing" evidence,                                           see                                               Kemp, 947 F.2d at 16, that any                                              We have construed the Federal Wiretap Act, which the          Massachusetts statute tracked, see  Commonwealth v. Vitello, 327          N.E.2d 819, 836 (1975), as conferring a "statutory right" upon a          communication common carrier to intercept wire communications in          order to protect its rights and property interests. United States          v.             Pervaz, --- F.3d ---, ---, 1997 WL 336208, *5 (1st Cir.) (R.I.)          (construing 18 U.S.C. S 2511(2)(a)(i), which permits an employee of          a wire communication services provider whose facilities are used in          transmission of wire or electronic communication, "to intercept,          disclose, or use that communication in the normal course of his          employment while engaged in any activity which is a necessary          incident to the rendition of his service or to the protection of          the rights or property of the provider of that service").                                         30          call "detailing" conducted by NET for its own billing-related          purposes falls outside the S 99(B)(3)(b) exception for equipment          used by it "in the ordinary course of its business." Accordingly,          no "interception" occurs under the Massachusetts Wiretap Act, at          least by reason of the billing-related "detailing" conducted by          NET.                      Gilday nonetheless insists, however, that the injunction          precludes the DOC  defendants from acquiring access to any call          "detail" information and that NET therefore may not aid and abet          the DOC by affording access.     See Reply Brief for Plaintiff,          Appellant at 6 n.8. Under the Regulations and the MITS "Procedural          Statement"                        a DOC operations guideline which supplements the MITS          Regulations                         authorized DOC officers may request both "standard"          and "custom" call "detail" reports from NET personnel         for          investigative                          purposes, or, after receiving training from NET          personnel, print out such call "detail" reports themselves.          Moreover, these "standard" reports may, at the DOC's option, be          configured to provide call "detail" relating to an individual          inmate's PIN, a particular group of inmate PINs, specific prison          telephones used to place calls, or particular telephone numbers          dialed. Finally, since the record discloses no limitation on the          domain reserved for the so-called "custom" reports, we assume, at                                              Although the record is unclear as to what, if any, role AT&T             as NET's subcontractor     performs in call "detailing," our          analysis of the NET role in call "detailing,"   supra pp. 27-30,          appears equally applicable to AT&T, which is a communication common          carrier as well.  See Mass. Gen. L. ch. 272, S 99(B)(3)(b).                                         31          the summary judgment stage,                                      see                                          Velez-Gomez, 8 F.3d at 874-75, that          NET is obligated to provide the DOC with any and all call "detail"          requested. Notwithstanding its advantageous summary judgment          posture, however, the Gilday call "detailing" claim fails in          relation to the DOC defendants as well.                     Gilday claims that the DOC violates the injunctive ban          against "intercepting" or "endeavoring to intercept" his wire          communications, see supra pp. 3-4, simply by applying the MITS          requirements to him; in particular, by making     his consent a          prerequisite to utilizing the MITS. The claim is premised on          several rationales: first, the MITS requirements cannot be applied          to             him, since the                            Gilday injunction bans all "interceptions" of his          calls, absent a relevant court order, legislative authorization, or          authoritative decision specifically permitting the challenged MITS          practices in their prison context; second, since    he has never          consented to the MITS regime, DOC call "detailing" cannot meet the          "two party consent exception" under Mass. Gen. L. ch. 272, S          99(B)(4), even assuming consent by the party called;  and third,          even assuming he were found to have given implicit consent by          utilizing the MITS, the injunctive ban on "interceptions" is          infringed by DOC call "detailing," because it secretly records the          outside number dialed by the inmate before the other party can                                              Section 99(B)(4) provides, in pertinent part, that the "term          interception means to secretly hear, secretly record, or aid          another to secretly hear or secretly record the contents of any          wire or oral communication . . . by any person other than a person          given prior authority by all parties to such communication." Mass.          Gen. L. ch. 272, S 99(B)(4).                                         32          consent; for example, should the outside phone not be answered.          All these contentions likewise fail.                    As with monitoring and recording, see supra pp. 25-27,          virtually all call "detailing" conducted under the MITS regime is          thoroughly advertised. In addition to the MITS Regulations, the          "Number Request Form" itself discloses that all inmate calls are          subject to call "detailing." Moreover, the recorded message heard          both by the inmate and the call recipient advises that their entire          conversation and all "call detail" will be recorded. Thus,          whatever "detailing" occurs                                      after the call recipient is so advised          by the recorded message comports with the Massachusetts Wiretap          Act, as both parties have been fully informed in advance that their          entire oral communication, as well as all "call detail," will be          recorded.  See Jackson, 349 N.E.2d at 339 (non-secret recordings          not "interceptions" under Massachusetts Wiretap Act).                     At summary judgment, however, Gilday proffered unrebutted          evidence that the outside number dialed by the inmate is recorded          before the call is answered; in other words, before the prerecorded          message announcing the MITS monitoring/recording regime has been          heard by the party who answers the call. Thus, the number called          by the inmate will have been subjected to call "detailing," whether          or not the party called answers the phone or withholds "consent" to          the MITS recording and call "detailing" procedure subsequently          announced in the prerecorded message.  Gilday therefore contends                                              On appeal, AT&T vigorously disputes that any such "secret"          call detailing occurs in these circumstances. Nevertheless, none                                         33          that defendants violate the injunction by "endeavoring" to record          call "detail" during the                                   interim between the dialing of the outside          number by the inmate and before the call can be answered and          accepted    what we shall refer to as "interim call detailing."                    Gilday relies heavily on a line of SJC decisions,  see,          e.g., District                          Attorney                                   for                                       Plymouth                                                Dist. v. New                                                             England                                                                     Tel.                                                                           &          Tel.                 Co., 399 N.E.2d 866 (Mass. 1980), treating with "pen          registers" and "call traps," telephone equipment consisting of          electronic devices which surreptitiously record, respectively, the          number called or the number from which an incoming call was placed.          These authoritative decisions hold that such electronic devices do          record call "contents," within the meaning of the Massachusetts          Wiretap Act, since they acquire "'information concerning the          identity of the parties to such communication or the existence . .          . of that communication.'"  Id. at 869 (quoting Mass. Gen. L. ch.          272, S 99(B)(5)). Thus, "[e]ven if the call is not completed, the          caller has initiated a wire communication . . . which is intended          to cause . . . [the call recipient's] telephone to ring and the          existence of that communication is recorded by an intercepting                                        of the defendants challenged Gilday's proffer in their opposition          to summary judgment, as required by Mass. D. Ct. Local Rule 56:                     Material facts of record set forth in the                    statement required to be served by the moving                    party will be deemed for purposes of the                    motion to be admitted by opposing parties                    unless controverted by the statement required                    to be served by opposing parties.          Consequently, we credit Gilday's assertion for summary judgment          purposes.  See Carreiro v. Rhodes Gill & Co., Ltd., 68 F.3d 1443,          1446 & n.3 (1st Cir. 1995).                                         34          device." Id. Be this as it may, however, it gains Gilday nothing.                    First of all, it is important to note that the SJC's          definition of "wire communication,"                                              see                                                 id., would not encompass an          attempt by an inmate to call a number not on the preapproved MITS          list, since the MITS regime automatically prevents such calls from          getting past its "host processors," the computers which control the          outflow of inmate calls from the prison. Consequently, inmate          attempts to dial numbers not approved under the MITS regime cannot          cause an outside telephone to ring, because the call cannot be          connected to the point of reception. Accordingly, there can have          been no "wire communication," which is defined as "any          communication . . . by the aid of wire, cable or other like          connection                     between                             the                                 point                                       of                                          origin                                                and                                                    the                                                        point                                                              of                                                                 reception."          Mass. Gen. L. ch. 272, S 99(B)(1). (Emphasis added.) Second,          should an inmate initiate a call through the MITS regime, he will          already have completed the "Number Request Form," thereby                                                                   divulging          in advance to the DOC        the very entity which previously          advertised its intention to monitor and record all outgoing inmate          calls to nonattorneys                                   both                                        the                                           telephone                                                     number                                                            and                                                                the                                                                    name                                                                         and          relationship of the family member or  friend to whom the call  is          directed.   See supra p. 6. Third, no reported Massachusetts          decision has ever involved sufficiently similar circumstances so as          to constitute an authoritative decision that call "detailing" in          the present context is unlawful.                                           Cf.,                                                e.g.,                                                      Jackson, 349 N.E.2d at          338-40 (discussing residential telephone subscriber's interceptions          of incoming calls to ascertain calling number and identity of                                         35          unknown caller); District Attorney For Plymouth Dist., 399 N.E.2d          at 867, 869-70 (discussing judicial power to compel telephone          company, pursuant to warrant, to assist installation of cross-          frame-unit trap on particular telephone line in order to record          telephone numbers from which incoming calls were made in          circumstances where callers' numbers and identities had                                                                 not already          been divulged by callers in advance); New England Tel. & Tel. Co.          v.             District Attorney For Norfolk Dist.                                               , 373 N.E.2d 960, 962 (Mass.          1978) (discussing judicial power to order telephone company to          assist installation of pen register to determine telephone numbers          dialed from particular phone);                                         District Attorney For Plymouth Dist.          v.  Coffey, 434 N.E.2d 1276, 1278 (Mass. 1982) (discussing          warrantless interception by telephone company of calls to          residential line to ascertain previously unknown telephone numbers          from which incoming, harassing telephone calls were being made).                     Furthermore, Gilday has never alleged an  intention to          call a telephone number or party not listed by him on the required          MITS "Number Request Form," see supra p. 6, even assuming he were          to elect to utilize the MITS. Instead, since there can be no          secretive acquisition of information already provided to the DOC,          see              supra pp. 25-27 (noting that "secretive" interceptions presume          lack of knowledge), Gilday simply assumes, sub silentio, that any          putative number(s) and person(s) he might call would not already                                              In another case, the SJC declined to address a claim that the          MITS violates the Massachusetts Wiretap Act, as it had not been          raised below.  See Cacicio, 665 N.E.2d at 89 n.9.                                          36          have been known to the DOC before the call was placed. Absent          evidence on this critical point, however, there can have been no          prima  facie showing that any surreptitious or secretive          "interception" would occur, let alone did occur, within the meaning          of the Massachusetts Wiretap Act.  See Jackson, 349 N.E.2d at 340          (holding that a secretive "interception" has occurred unless both          parties to the call had "actual knowledge" of the intrusion). In          all events, as noted above, see  supra pp. 34-35, were Gilday to          continue to withhold consent but attempt to place a call      or          consent, yet attempt to call a number not previously approved by          the DOC                     the MITS computers would screen out the attempted call.          Thus, under Massachusetts law, no "wire communication" could occur.          See Mass. Gen. L. ch. 272, S 99(B)(1) (defining "wire          communication" as any "connection between the point of origin and          the point  of reception") (emphasis added);   see  also  District          Attorney                    for                        Plymouth                                 Dist. v. New                                               England                                                       Tel.                                                            &                                                              Tel.                                                                   Co., 399          N.E.2d 866, 869 (Mass. 1980).                                              Although Gilday argues on appeal that interim call          "detailing" would violate the Massachusetts Wiretap Act because it          would record inmate attempts to call telephone numbers not listed          on their respective Number Request Forms    i.e., that MITS call          "detailing" takes place even though the inmate calls a party not on          the Number Request Form, hence not already known to the DOC    he          has never alleged an intention to make such calls       i.e., to          circumvent the requirements of the MITS                                                    even assuming he were to          participate in it. Thus, the present attempt to hypothesize an          abstract interim call "detailing" violation raises no justiciable          case or controversy, as the injunction simply prohibits the DOC          from intercepting or endeavoring to intercept any wire          communication by Gilday.   See Pacific                                                  Gas                                                      &                                                         Elec.                                                               Co. v.  State          Energy                  Resources                            Conservation                                         and                                             Dev.                                                  Comm'n, 461 U.S. 190, 203          (1983) (declining on Article III ripeness grounds to consider          constitutionality of California law allowing State to block                                         37                    In conclusion, any attempt to dial a number not          previously disclosed by an inmate on the Number Request Form: (i)          results in no "wire communication" to the person called, as it          cannot proceed beyond the prison,  see supra p. 34-35; and (ii)          voluntarily discloses to the DOC the number called, without any          "wire communication" having taken place. Thus, interim call          "detailing" under the MITS regime is neither "secretive" within the          meaning of the Massachusetts Wiretap Act, nor an "interception"          within the scope of the   Gilday injunction. Accordingly, the          district court supportably determined that the challenged MITS          practices did not violate the Massachusetts-law component in the          Gilday injunction.                    Moreover, there is no basis for the conclusory contention          that the  Gilday injunction is violated simply by the MITS          regulatory requirement that he, like any other inmate, consent to          the MITS regime, including call "detailing," as a prerequisite to          utilizing the MITS       hence, that the consent requirement          constitutes a coercive    endeavor to intercept Gilday's wire          communications in violation of the injunction.  See supra pp. 31-          32. First, its unstated premise that Gilday is entitled to utilize          prison phones even though he withholds consent is groundless. As          a prison inmate, Gilday can identify no federal or state right                                           construction of nuclear power plants lacking adequate storage          capacity for spent nuclear fuel, because the Court "cannot know" if          State "will ever find a nuclear plant's storage capacity to be          inadequate");  Lincoln House, Inc. v. Dupre, 903 F.2d 845, 847-48          (1st Cir. 1990) (refusing on Article III ripeness grounds to          address claim based on abstract injury "that may not occur as          anticipated or may not occur at all").                                         38          constitutional or otherwise                                         to utilize a prison phone on his own          terms. See,                       e.g.,                             Washington v.                                           Reno, 35 F.3d 1093, 1100 (6th Cir.          1994) (stating that "a prisoner's right to telephone access is          'subject to rational limitations in the face of legitimate security          interests of the penal institution'") (quoting Strandberg v. City          of Helena, 791 F.2d 741, 747 (9th Cir. 1986))); see also Feely v.          Sampson, 570 F.2d 364, 374 (1st Cir. 1978) (stating that the right          of pretrial detainees to make telephone calls, while "not free from          doubt[,]" is subject to reasonable restrictions);   Cacicio, 665          N.E.2d at 92 (upholding MITS limitations on inmate telephone access          as constitutional, and citing  Bellamy v. McMickens, 692 F.Supp.          205, 214 (S.D.N.Y. 1988), for the proposition that prisoners have          no right to unrestricted telephone use). Second, the       Gilday          injunction does not purport to ban call "detailing" lawfully          conducted under federal and state law. See                                                      supra pps. 3-4, 20-25.          And since MITS call "detailing" cannot occur absent inmate consent             a prerequisite to access to the MITS, see supra pp. 6-7    the          very least that can be said is that there is no  clearly-defined,          see Kemp, 947 F.2d at 17, "interception" under either federal or          state law, see supra pp. 34-37; infra pp. 45-48. Third, the verb          "endeavor," meaning "to work with set purpose," or "make an effort"          to accomplish a particular purpose,    see  Webster's                                                                   Third                                                                          New          International Dictionary                                  748 (1986)                                                 here, allegedly, to conduct          unlawful interceptions of Gilday's wire communications    cannot          bear the weight he places on it. Given the uncontroverted evidence          that extensive inmate fraud and criminal activity necessitated the                                         39          MITS,  see  supra p. 4, Gilday cannot demonstrate that the          establishment of the MITS    universally available exclusively to          inmates                  who                      consent                              to                                 its                                     terms (                                          including                                                     Gilday, should he elect          to participate)    constituted an "endeavor" to "detail" Gilday's          telephone calls unlawfully, and thus constituted a clear violation          of the Gilday injunction, see Kemp, 947 F.2d at 17.                    Once again we emphasize the obvious simply because it is          so consistently elided by Gilday, both below and on appeal: The          Gilday injunction grants Gilday                                          no                                             right                                                   or                                                      privilege                                                                to                                                                   place                                                                         any          telephone call, nor has Gilday cited any authoritative decision          indicating that conditioning prison-telephone utilization on          informed prisoner consent to reasonable prison-security safeguards          violates a federal or state right.   See Langton, 71 F.3d at 936          (stating: "at the least, grounds exist for genuine dispute" about          whether DOC "defendants are authorized by law" to require prisoner          consent to MITS regime) (citing                                          Griggs-Ryan v.                                                         Smith, 904 F.2d 112          (1st Cir. 1990) (holding that "implied consent" is inferred from          circumstances indicating that party knowingly agreed to          surveillance)); see also Washington, 35 F.3d at 1100 (prison may          impose rational limits on inmate telephone access, including          subjecting inmates to MITS-type system);  Strandberg, 791 F.2d at          747 (prisoner's right to telephone access subject to reasonable          restrictions);                         Feely, 570 F.2d at 374 (right of pretrial detainees          to place telephone calls is subject to reasonable restrictions);          Cacicio, 665 N.E.2d at 90 (upholding MITS as reasonable security          measure). But                         cf.                             United States                                          v.                                             Cheely, 814 F.Supp. 1430, 1443-                                         40          44 (D. Alaska 1992) (rejecting argument that prison may deem          consent implied in situations where inmate must consent to terms in          order to place calls, but finding surveillance of prison phones "a          necessary price for prison security"),  aff'd, 36 F.3d 1439 (9th          Cir. 1994).                    In sum, the                                Gilday injunction does not purport to entitle          Gilday to utilize the MITS without acceding to lawful restrictions          founded upon reasonable prison-security measures. Furthermore,          inmates who voluntarily withhold their consent retain their          constitutional right to communicate with their attorneys (and with          family and friends) through prison visitations and the mail. Thus,          it is unfounded supposition to suggest that the DOC has          "endeavored" to do anything other than afford inmates the          opportunity to utilize the MITS, subject to reasonable restrictions          designed to preclude fraud, crime, and misuse of the prison          telephone system. Accordingly, the claim that the DOC is          "endeavoring" to "detail" Gilday's telephone calls in violation of          the Gilday injunction fails.                                              We note that the Gilday call "detailing" contention is          problematic in another important respect, since Mass. Gen. L. ch.          272, S 99(B)(3)(a), excepts from its definition of the term          "intercepting device" any device or apparatus "furnished to a          subscriber or user by a communications common carrier in the          ordinary course of its business under its tariff and being used by          the subscriber or user in the ordinary course of its business."          The SJC has indicated that institutional efforts to ensure security          constitute activities in the "ordinary course of business" for S          99(B)(3)(a) purposes. See                                     Crosland v.                                                 Horgan, 516 N.E.2d 147, 150          (Mass. 1987) (stating that preservation of security may be viewed          as within hospital's "ordinary course of business"). Similarly,          the SJC has stated that maintenance of security is "an essential          incident to the business of a prison."   Id. (dicta) (describing                                         41                     Finally, even assuming, arguendo, that Gilday were to          overcome all other hurdles,  in fine his call "detailing" claim          engenders substantial justiciability concerns not addressed by the          parties. Article III, section 2, of the United States Constitution          confines federal court jurisdiction to actual "cases" and          "controversies." U.S. Const. art. III, S 2. Article III was          designed to ensure that federal courts decide only disputes of "a          Judiciary nature," M. Farrand, 2 Records of the Federal Convention          of              1787, at 430 (1911), thereby prohibiting advisory opinions,          Flast v. Cohen, 392 U.S. 83, 96 (1968). In order to satisfy the          "case or controversy" requirement, the plaintiff must demonstrate          "'a personal stake in the outcome[,]'"   City                                                          of                                                             Los                                                                 Angeles v.          Lyons, 461 U.S. 95, 101 (1983) (quoting  Baker v. Carr, 369 U.S.          186, 204 (1962)), and the complaint must present a controversy          neither "conjectural [n]or hypothetical," but both "real and          immediate," see id. at 102, without regard to the type of relief                                        purport of                     Campiti v.                                Walonis, 453 F.Supp. 819, 822 (D.Mass. 1978),          aff'd, 611 F.2d 387 (1st Cir. 1979)). Perhaps most significantly,          in response to a constitutional challenge the SJC has held that the          MITS serves "the legitimate purpose of improving the security of          the Massachusetts correctional system" by acting as a "deterrent          against improper use" of prison telephones.                                                      Cacicio, 665 N.E.2d at          90.               Thus, it can be concluded, with considerable confidence in our          judgment, that the issue as to whether corrections officials may          intercept MITS calls in the "ordinary course of [prison] business,"          under the protection of S 99(B)(3)(a), is     at the  very  least          reasonably debatable, and, therefore, that Gilday's contention          comes a cropper. See                                Kemp, 947 F.2d at 17 (stating that injunction          must leave "no reasonable doubt" what conduct is prohibited); see          also Langton, 71 F.3d at 936 (finding "reasonably debatable" the          issue as to whether MITS monitoring comes within the "ordinary          course of business of a law enforcement officer" as defined by          Federal Wiretap Act).                                         42          sought,                  see                      Skelly Oil                                v.                                    Phillips Petroleum Co.                                                        , 339 U.S. 667, 671          (1950).                     Among the showings required under the "case or          controversy" requirement is "ripeness," which governs                                                               when a proper          party may bring a justiciable action consistent with Article III.          See Thomas v. Union                               Carbide                                       Agric.                                              Prods.                                                     Co., 473 U.S. 568, 580          (1985) ("'[R]ipeness is peculiarly a question of timing.'")          (quoting                   Regional Rail Reorganization Act Cases                                                        , 419 U.S. 102, 140          (1974)). The basic rationale underlying the ripeness doctrine is          "to prevent the courts, through avoidance of premature          adjudication, from entangling themselves in abstract disagreements          over administrative policies and also to protect the agencies from          judicial interference until an administrative decision has been          formalized and its effects felt in a concrete way by the          challenging parties."  Abbott                                          Laboratories v. Gardner, 387 U.S.          136, 148-49 (1967);  Pacific                                          Gas                                               &                                                 Elec.                                                        Co. v.  State                                                                       Energy          Resources                     Conservation                                  and                                      Dev.                                           Comm'n, 461 U.S. 190, 200 (1983)          (same). The ripeness determination thus turns on "'the fitness of          the issues for judicial decision' and 'the hardship to the parties          of withholding court consideration.'"  Id. at 201 (quoting Abbott          Lab., 387 U.S. at 149);                                  Lincoln House, Inc.                                                    v.                                                        Dupre, 903 F.2d 845,          847 (1st Cir. 1990) (same). As we have explained, "[p]erhaps the          most important consideration in determining whether a claim is ripe          for adjudication is the extent to which 'the claim involves          uncertain and contingent events that may not occur as anticipated,          or indeed may not occur at all.'"    Id. (quoting 13A Wright and                                         43          Miller, Federal                           Practice                                    and                                        Procedure S 3532.2, at 141 (1984)).          See also Metzenbaum v. Federal Energy Regulatory Comm'n, 675 F.2d          1282, 1289-90 (D.C. Cir. 1982);  A/S                                                Ludwig                                                       Mowinckles                                                                  Rederi v.          Tidewater Construction Corp., 559 F.2d 928, 932 (2d Cir. 1977).                    As Gilday has never utilized the MITS regime, there can          have been no call "detailing" of any Gilday "wire communication."          Accordingly, no Gilday wire communication could have been subjected          to "interception" by NET, ATT or the DOC; consequently, there can          have been no "endeavoring to intercept." Moreover, as Gilday gives          no indication that he intends to consent, any DOC "detailing" of a          potential wire communication remains entirely hypothetical. Nor          can it simply be                           presumed that the DOC will "detail" unlawfully any          call to which Gilday might be a party in the future, nor even that          he would dial a number which might prompt a call "detail" report.          See Pacific                       Gas                           &                              Elec.                                    Co., 461 U.S. at 200. Thus, the call          "detailing" claim, in fine, "'involves uncertain and contingent          events that may not occur as anticipated, or indeed may not occur          at all.'"  Lincoln House, 903 F.2d at 847 (quoting 13A Wright and          Miller, Federal Practice and Procedure S 3532.2, at 141 (1984)).                     For the foregoing reasons, we conclude that the claims          premised on the Massachusetts Wiretap Act are unavailing.                     B.   Title III                    Although the Federal Wiretap Act (Title III, Omnibus          Crime Control and Safe Streets Act, 18 U.S.C. SS 2510    et  seq.          ("Title III")) generally forbids "interceptions" of wire communica-          tions absent prior judicial authorization, it expressly provides                                         44          that "[i]t shall not be unlawful . . . for a person acting  under          color                of                   law to intercept a wire, oral, or electronic communication          where . . .                      one                          of                             the                                parties                                        to                                           the                                               communication                                                             has                                                                 given                                                                       prior          consent                  to                     such                          interception." 18 U.S.C. S 2511(2)(c). (Emphasis          added.) The "consent" exemption under Title III is "'construed          broadly'" as encompassing implied consent.  Griggs-Ryan v. Smith,          904 F.2d 112, 116 (1st Cir. 1990) (quoting United States v. Amen,          831 F.2d 373, 378 (2d Cir. 1987));    see also  United                                                                   States v.          Workman, 80 F.3d 688, 693-94 (2d Cir.) (same),                                                        cert.                                                              denied, 117 S.          Ct. 319 (1996); S.Rep. No. 1097, 90th Cong., 2d Sess.,  reprinted          in 1968 U.S.C.C.A.N. 2112, 2182 (same).                    Under the MITS regime, the following prerecorded message          is heard by both parties immediately after the recipient responds          to an inmate call and before the parties can communicate:                         NYNEX [or AT&T for long distance                         calls] has a collect call from [name                         of inmate], an inmate at the [name                         of correctional facility]. To re-                         fuse this call, hang up. If you use                         three-way calling or call waiting,                         you will be disconnected.  All call                         detail and conversation, excluding                         approved attorney calls,   will  be                         recorded. To                                       accept                                              this                                                   call,                                                         dial                         "1" now.          (Emphasis added.) Thus, upon dialing "1" the party reached at the          number dialed by the inmate consents to the MITS regime prior to          any communication with the inmate.                    Although Gilday points out that                                                   he has never consented                                                                                      either explicitly or implicitly                                             to the MITS regime, the federal          wiretap statute as well as relevant authoritative decisions                                         45          indicate that the requisite consent under the Federal Wiretap Act          may be provided by either party.  See 18 U.S.C. S 2511(2)(c) (no          impermissible "interception" where "one of the parties to the          communication has given prior consent to such interception"); see          also               United States                            v.                                McDowell, 918 F.2d 1004, 1006 (1st Cir. 1990)          (finding no Title III bar to telephone interceptions based on          unilateral consent); United States v. Pratt, 913 F.2d 982, 986-87          (1st Cir. 1990) (finding unilateral consent adequate to permit          interception under federal law). Thus, MITS call "detailing" and          recording does not offend Title III.                    Moreover, it is settled law in the First Circuit and          elsewhere that "Title III affords safe harbor not only for persons                                              Call "detailing," moreover, is not within the ambit of the          Federal Wiretap Act, as it simply captures electronic signals          relating to the PIN of the caller, the number called, and the date,          time and length of the call.   See 103 C.M.R. S 482.06(1). The          Federal Wiretap Act defines "interception" as an "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. S 2510(4) (emphasis added). Subsection          2510(8) in turn defines "contents" as "any information concerning          the substance, purport, or meaning of [the] . . . communication."          Id. S 2510(8).               The United States Supreme Court, in an analogous context, has          held that "pen registers"    devices which can record any number          dialed from a particular telephone    do not violate the Federal          Wiretap Act "because they do not acquire the contents of communica-          tions as that term is defined by 18 U.S.C. S 2510(8)."     United          States v.                    New York Tel. Co.                                    , 434 U.S. 159, 167 (1977). Similarly,          the SJC has held that pen registers "are not governed by Title III,          since there is no 'aural acquisition' of anything."      District          Attorney For Norfolk District, 373 N.E.2d at 962. The legislative          history of the 1986 Amendments to the Federal Wiretap Act likewise          indicates that Congress intended to exclude call "detailing"          devices.  See S.Rep. No. 99-541, 99th Cong., 2nd Sess., reprinted          in 1986 U.S.C.C.A.N. 3555 (stating that devices which record          electronic data "capture no part" of the contents of "an actual          telephone conversation").                                          46          who intercept calls with the explicit consent of a conversant but          also for those who do so after receiving implied consent."                                                                     Griggs-          Ryan, 904 F.2d at 116;  see also Williams v. Poulos, 11 F.3d 271,          281 (1st Cir. 1993) (same). Accord                                              United States                                                           v.                                                               Van Poyck                                                                       , 77          F.3d 285, 292 (9th Cir.),  cert. denied, 117 S. Ct. 276 (1996);          United States                       v.                           Horr, 963 F.2d 1124, 1126 (8th Cir. 1992);                                                                      United          States v.                    Willoughby, 860 F.2d 15, 19 (2d Cir. 1988) (citing                                                                       Amen,          831 F.2d at 378); Watkins v. L.M.                                             Berry                                                   &                                                     Co., 704 F.2d 577, 581          (11th Cir. 1983). Implied consent may be "inferred from . . .          language or acts which tend to prove . . . that a party knows of,          or assents to, encroachments on the routine expectation that          conversations are private."    Griggs-Ryan, 904 F.2d at 116-17          (internal citations and quotations omitted). Thus, "a reviewing          court must inquire into the  dimensions of  the consent and then          ascertain whether the interception exceeded those boundaries."                                                                         Id.          at 119 (emphasis added).                    The prerecorded MITS message explicitly advises that          "[a]ll call detail and conversation, excluding approved attorney          calls,                 will                      be                         recorded,"                                    see                                        supra p. 45 (emphasis added), thereby          informing the call recipient that the entire "contents" will be          intercepted. Consequently, notwithstanding the absence of explicit          notice of the lesser intrusion represented by possible monitoring          of call content,  the recipient is fully informed of the greater                                              The MITS regime permits random monitoring, as well as          particularized investigative monitoring     the latter based on          suspected criminal activity.                                         47          intrusion;                     viz., that the                                    entire                                           conversation, as well as all call          "detail," will be intercepted  and recorded.   See id.; see  also          Williams, 11 F.3d at 281-82 (discussing elements of implied          consent). Thus, since the MITS records the entire conversation,          any concurrent aural monitoring by authorized DOC officials in no          sense exceeds the dimensions of the broad implied consent given to          record all call "content," including call "detail."  See  Griggs-          Ryan, 904 F.2d at 114, 116-19 (finding implied consent to          interceptions, consisting of concurrent aural monitoring and          recording of telephone conversations, after plaintiff had been          informed of the recording only and no restrictions had been placed          on the scope of the interceptions); see also Williams, 11 F.3d at          282 (stating that implied consent obtains where party to conversa-          tion was provided with at least "minimal knowledge" of scope of          interception). Therefore, based on the relevant authoritative          decisions, it is at the very  least an open question whether the          express prior consent provided by MITS-call recipients to the          recordation of all call "content" constitutes implied consent to          monitoring.                      Finally, as this is a civil contempt proceeding it was          for Gilday to prove that the DOC defendants "violated a clear and          unambiguous order that left no reasonable doubt as to what behavior                                              Although it has been held    outside the prison context              that mere "knowledge of the capability of monitoring alone cannot          be considered implied consent,"                                          Watkins, 704 F.2d at 581 (emphasis          in original), under the MITS the recipient of the call is informed          that the entire call will be recorded.                                          48          was to be expected" and that the DOC was "'able to ascertain from          the four corners of the order precisely what acts . . . [were]          forbidden.'"  Kemp, 947 F.2d at 17 (quoting  Drywall                                                                Tapers, 889          F.2d at 395). Since the    Gilday injunction bans only unlawful          practices by the DOC defendants,      see  supra pp. 20-22 and          authoritative decisions supportably indicate    at the very least             that the challenged MITS practices constitute lawful monitoring,          Gilday has not demonstrated a "clear and unambiguous" violation of          Title III.  Accordingly, the district court correctly concluded          that Gilday failed to establish a violation of the         Gilday          injunction, either by the DOC or by its putative aiders and          abettors, NET and AT&T.           C.   The Section 1983 Claims                    In a civil rights action under 42 U.S.C. S 1983, the                                              Various federal decisions have upheld similar prison          monitoring and recording practices under the Federal Wiretap Act.          See, e.g., Horr, 963 F.2d at 1126;  United                                                      States v. Sababu, 891          F.2d 1308, 1326-30 (7th Cir. 1989);                                              Willoughby, 860 F.2d at 19-21;          Martin v. Tyson, 845 F.2d 1451, 1458 (7th Cir. 1988);  Amen, 831          F.2d at 378-80;                          United States                                       v.                                           Paul, 614 F.2d 115, 117 (6th Cir.          1980);  United                          States                                 v.                                     Green, 842 F.Supp. 68, 71-72 (W.D.N.Y.          1994), aff'd, 80 F.3d 688, cert.                                             denied, 117 S. Ct. 319 (1996);          United States v. Valencia, 711 F.Supp. 608, 611 (S.D. Fla. 1989);          Lee v. Carlson, 645 F.Supp. 1430, 1438-39 (S.D.N.Y. 1986).               Additionally, the Eleventh Circuit has held that a personal          call may be intercepted by a business under S 2510(5)(a)(i) "to the          extent necessary to guard against unauthorized use of the telephone          or to determine whether a call is personal or not."  Watkins, 704          F.2d at 583. Similarly, the Eighth Circuit has suggested that in          circumstances where an employee is believed to be committing a          crime or making excessive personal calls, employer monitoring of          employee phone calls may not be an unlawful "interception" under          the "ordinary use" exception applicable to extension phones in S          2510(5)(a)(i). See  Deal v.                                       Spears, 980 F.2d 1153, 1158 (8th Cir.          1992).                                          49          plaintiff must prove by a preponderance of the evidence that a          person acting under color of state law deprived him of a right          guaranteed by the United States Constitution or the laws of the          United States.  Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.),          cert. denied, 116 S. Ct. 515 (1995);  Tatro v. Kervin, 41 F.3d 9,          14 (1st Cir. 1994). Gilday argues that the terms of the    Gilday          injunction grant him a "federal right to be free of any intercep-          tion of his wire communications not specifically permitted under          the terms of the Permanent Injunction." From this mistaken premise          he maintains that the DOC defendants violated section 1983 by          implementing the MITS under color of Massachusetts law in violation          of the Gilday injunction, thereby depriving him of a "federal          right." Likewise, he claims that AT&T and NET are state actors,          liable for aiding and abetting the alleged violations by the DOC          defendants. As the Gilday injunction was never violated, however,          these civil rights claims collapse as well.                                         III                                     CONCLUSION                    Appellant having failed to show as a matter of law that          appellees violated the permanent injunction or caused a deprivation          of any federal or constitutional rights, the judgment of the          district court is affirmed.                                              On appeal, Gilday has abandoned the claim that defendants          deprived him of "meaningful access to the courts," as well as his          Sixth and Fourteenth Amendment rights. We therefore deem any such          section 1983 claim waived. See                                         Playboy Enterprises, Inc.                                                                  v.                                                                      Public          Service Commission of Puerto Rico                                          , 906 F.2d 25, 40 (1st Cir. 1990).                                         50
