One-party consent to surreptitious recording should be lawful everywhere

By Michael Gaynor

The truth is that state laws on taping conversations vary and federalism allows that.

John 8:32 (New International Version): "Then you will know the truth, and the truth will set you free."

Evil should be contested with truth, not competing lies, and the law is the law, whether or not you (or I) think it should be.

The rule of law is sacrificed if criminal law is disregarded by even well-intentioned persons eagerly pursuing evidence of even much greater wrongdoing.

An important lesson to be learned from the stings conducted at ACORN's Baltimore, Philadelphia, San Bernardino and San Diego offices last summer is that Maryland, Pennsylvania and California should revise their laws criminalizing surreptitious recording by one party to a conversation. Those laws are supposed to protect privacy, but they protect corruption.

Matthew Vadum's disdain for Media Matters for America and strong support of the sensational sting conducted against evil ACORN and the self-sacrificing stingers are both much deserved, but his reluctance to give due respect to the all-parties-must-consent-to-reccording standard that is the law in a dozen states is not. See his recent article titled "PHILLY VIDEO IS MORE PROOF: Liberal Smear Merchants 'Media Matters for America' Will Slime Anyone Who Takes on ACORN."

Vadum:

"Media Matters said 'Some of the videotapes may have been taken illegally. The Post did not report that in secretly videotaping their conversations with ACORN employees, O'Keefe and Giles may have violated state criminal statutes in Maryland and California.'

"Media Matters can't seem to get over the fact that rules of evidence used in courtrooms don't apply in journalism. If a journalist smuggles a fake weapon through airport security in order to expose weaknesses in baggage screening processes, doesn't society benefit from the enterprise? Journalism is about truth-telling, not about putting people behind bars (though if there were any justice in the world, ACORN's leadership would be in prison)."

I'm for telling the truth, the whole truth and nothing but the truth, but journalism has woefully failed many times, especially in reporting on ACORN, and neither professional journalists nor "citizen journalists" are exempt from criminal laws.

The truth is that state laws on taping conversations vary and federalism allows that.

There's no legitimate dispute that the stings against ACORN in Washington, D.C. and New York did not violate criminal law. Washington, D.C. and New York allow one party to a conversation to record it without the knowledge of other parties.

But Maryland, California and Pennsylvania want all parties to consent if there is to be lawful recording of what is expected to be a private conversation.

Maryland makes willful surreptitious recording a felony. (Ignorance of the law is not always useless!)

California and Pennsylvania have a lower standard: intentional surreptitious recording is felonious.

Vadum seems much more concerned with what was uncovered than whether it was uncovered lawfully: "Even if the secret videotaping was illegal, how does that single fact undermine the credibility of the filmmakers? Moreover, how is the concept of credibility even relevant here? The camera doesn't lie. The videotapes shot by the couple show that ACORN employees were only too willing to facilitate criminal conduct. None of the ACORN workers shown in any of the videos released to date appear to have any moral reservations about helping a pimp and prostitute engage in illegal activity."

Those "filmmakers" are credible and courageous, and their videotapes are superb evidence. But that does not mean that some states did not criminalize the tactic used to uncover evidence of egregious wrongdoing, noble intention notwithstanding, and that too is worthy of concern.

There is a huge problem with the law in Maryland, California and Pennsylvania: it goes too far in protecting privacy.

At the website of the Pennsylvania Attorney General (www.attorneygeneral.gov/crime.aspx?id=199), an article by the late Eric M. Noonan, Assistant Executive Deputy Attorney General, titled "WIRETAPPING & ELECTRONIC SURVEILLANCE IN PENNSYLVANIA" and set forth below, is posted for the benefit of the public.

Mr. Noonan joined the Pennsylvania Attorney General's officein 1988 and over the next eleven years became a recognized expert in wiretap law and gained a reputation for honesty, integrity and diligence throughout the law enforcement community in Pennsylvania.

Noonan:

"The general rule in Pennsylvania is that electronic surveillance is illegal. For the purposes of this article, 'electronic surveillance' shall include the interception (to include recording) of electronic (digital pagers, computers/e-mail, fax machines), oral (face-to-face conversations where there is an expectation of privacy/non-interruption) and wire (telephone conversations) communications. This general rule, and certain limited exceptions thereto, appear in Pennsylvania's Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. § 5701, et seq.

"Some 41 other states nationwide have their own wiretapping/electronic surveillance statutes. These statutes follow either a 'one party consent' or 'two/all party consent' rule. The former creates an exception to the foregoing general prohibition if one of the parties to the intercepted communication is aware of, and has consented to the interception. The latter reflects a more restrictive rule — that being that both, or all parties to the intercepted communication must be aware of and have consented to its interception. Pennsylvania falls into the latter, more restrictive category.

"In addition to the various state statutes, the federal government has its own wiretapping/electronic surveillance statute at 18 U.S.C. § 2510 et seq. The federal statute is of the less-restrictive 'one party consent' variety. This federal law is what authorizes the various states to enact their own statutes. Generally speaking, in order for state statutes to be deemed lawful, they must comport with the constraints of the federal statute. The state statutes can be even more restrictive than the federal statutes, however, they cannot be less restrictive. In addition, there must be compliance with the constraints of the United States Constitution and the respective state constitutions.

"There are certain limited exceptions to the general prohibition against electronic surveillance. The exceptions exist for so-called 'providers of wire or electronic communication service' (e.g., telephone companies and the like) and law enforcement in the furtherance of criminal investigative activities. With the limited exception of telemarketers, there is no sweeping exception for the private sector absent all parties' awareness and consent to the interception of the communication.

"As to the providers' exception — this generally relates to ensuring the proper operation of their facilities and protection of themselves and their customers from fraudulent or illegal use of their facilities. As to the law enforcement exception — interceptions can only be undertaken in the furtherance of a criminal investigation. Further, the police do not have an unfettered ability to do interceptions. Their authority is tempered in situations where one of the parties has consented to law enforcement's eavesdropping by the fact that they must get the prior approval of a designated prosecutor. Further, in the event the conversation is expected to take place in a home, a probable cause-based court order is required in addition to the attorney's approval. In the event the interception proposed by law enforcement is without any of the participants' knowledge or consent, then a court must issue an order based not only on a finding of probable cause, but also a judicial finding that the technique is necessary — that more traditional/less intrusive investigative techniques would fail or would be fruitless to continue, or would be too dangerous to try. As to the telemarketers' exception — interception can only be undertaken for training, quality control or business monitoring purposes.

"The majority of the Act is devoted to the law enforcement exception. In that regard, the Act provides law enforcement with five investigative techniques: 1) consensual interception of electronic, oral or wire communications (where one of the parties to the communication is aware of, and has consented to law enforcement's electronic eavesdropping); 2) records/information access (i.e. toll records/long distance billing information subscriber information, etc.); 3) mobile tracking devices (electronic tracking of the movement of a vehicle, parcel, etc.); 4) pen register/trap & trace device and telecommunication identification interception device (devices that provide law enforcement with the outgoing numbers dialed from a targeted telephone facility, source of incoming calls to a targeted telephone facility and the electronic serial number/mobile identification number assigned to a cellular telephone facility, respectively); and 5) nonconsensual interception of electronic, oral or wire communications (where none of participants in the communication are aware of or have consented to law enforcement's electronic eavesdropping).

"As to 1), consensuals — the technique must receive the prior approval of the District Attorney, Attorney General or an Assistant DA/Deputy AG before being undertaken. Further, if the technique is to occur in the "home" of anyone other than the consenting party, then a probable cause-based court order is also required. As to 2), records/information access — either a subpoena, search warrant, court order or the consent of the customer/subscriber to the facility in question must be obtained before law enforcement can access the material. As to 3), mobile tracking — a court order is required before the technique may be undertaken. As to 4), pen register, etc. — a probable cause-based court order is required. As to 5) nonconsensuals — a probable cause-based court order is required finding not only that certain crimes have been, will be or are being committed, but also that there is a need for law enforcement's use of this technique.

"Disclosure/use of contents of communications obtained hereby is authorized only in extremely limited circumstances. For criminal investigative purposes, an investigative or law enforcement officer who, pursuant to the proper performance of his/her duties has acquired knowledge of the contents of a communication, may disclose such contents to another investigative or law enforcement officer so long as such disclosure is appropriate to the proper performance of the duties of both the disclosing and receiving officer. Likewise, such investigative or law enforcement officer may use such information (which may implicitly include further disclosure) as appropriate to the proper performance of that officer's duties (such as disclosure to a judge in an affidavit for a search or arrest warrant). Such contents may also be disclosed while giving testimony under oath in any criminal proceeding or in quasi-criminal, forfeiture or professional disciplinary proceedings. Beyond the foregoing parameters, disclosure/use of intercepted communications is prohibited with both civil and criminal penalties.

"A person's (private citizen or law enforcement) violation of this statute can arise in the following four general areas: 1) he/she can unlawfully intercept or procure another to unlawfully intercept a wire, oral or electronic communication; 2) he/she can unlawfully disclose the contents of an electronic, oral or wire communication; 3) he/she can unlawfully use the contents of an electronic, oral or wire communication; and 4) he/she can unlawfully advertise, sell or possess an "electronic, mechanical or other device(s)" which, by its design renders it primarily useful for the surreptitious interception of electronic, oral or wire communications. The violation of any of these provisions constitutes a felony of the third degree (and yes, this includes the prohibition of a private citizen from tapping his/her own phone and/or bugging his/her own home).

"As noted above, law enforcement personnel cannot electronically eavesdrop without proper authority (i.e. prior independent review by either a designated prosecutor or the judiciary). In addition to the criminal sanctions for violating the Act, other sanctions that can be brought against law enforcement for violating the Wiretap Act which consist of: 1) suppression of evidence gained as a result of any unlawful interception (or evidence derived therefrom); 2) a civil suit brought by an 'aggrieved person' (one whose communication was intercepted or one against whom the interception was directed) for reasonable attorneys fees and money damages; and 3) A civil suit brought by an aggrieved person to have the investigative or law enforcement officer who allegedly violated the Act removed from their law enforcement position.

"In summary, Pennsylvania's Wiretapping and Electronic Surveillance Control Act is all about privacy — the expectation of privacy we have in our communications. However, it recognizes law enforcement's periodic need to intercept communications to obtain critical evidence in criminal investigations to protect the public. In that regard, the Act strikes a balance by imposing certain requirements on law enforcement via the prior review by a prosecutor and/or judge as explained above. In protecting privacy, the constraints of the Act apply to everyone, law enforcement and private citizens alike."

Noonan explained the Pennsylvania law dispassionately. He was not playing politics or protecting anyone.

Vadum is right that "rules of evidence used in courtrooms don't apply in journalism," but it does NOT follow that "filmmakers," or "citizen journalists,' or vigilantes, or media moguls, are entitled to disregard state criminal law.

A trial court has held that a communication protected by the Pennsylvania law is one in which there is an expectation that it will not be recorded by any electronic device, rather than one in which there is a general expectation of privacy. Thus, the fact that a participant may believe he will have to reveal the contents of a communication, or that other parties may repeat the contents, does not necessarily mean that he would have expected that it would be recorded, and it is the expectation that the communication would not be recorded that triggers the wiretapping law's protections. Pennsylvania v. McIvor, 670 A.2d 697 (Pa. Super. Ct. 1996), petition for appeal denied, 692 A.2d 564 (Pa. 1997).

Noonan correctly concluded that the pertinent Pennsylvania statute "strikes a balance by imposing certain requirements on law enforcement via the prior review by a prosecutor and/or judge as explained above" and "[i]n protecting privacy, the constraints of the Act apply to everyone, law enforcement and private citizens alike."

It's not the balance I would strike, but it is the balance struck by the Pennsylvania authorities authorized to strike that balance and pretending otherwise is not truthful.

© Michael Gaynor