Last month, the political class was briefly set abuzz when a surreptitious recording of a meeting among Senate Minority Leader Mitch McConnell and members of his staff was released to Mother Jones reporter David Korn. In the recording, some of the meeting participants discussed potential political attacks on Ashley Judd, the actress who had been considering a run for McConnell’s seat. A Kentucky Democratic Party official soon revealed that two activists with a PAC called “Progress Kentucky” had secretly recorded the meeting while they were in a hallway in McConnell’s re-election headquarters, shortly after a campaign “open house” event. The door to the meeting was shut, but the activists could hear the conversation through a vent at the bottom of the door and one of them recorded it, perhaps with a smartphone. The FBI is investigating, and charges may be forthcoming.
The resulting brouhaha over the tape was predictably partisan, and we don’t yet know all the facts about whether the recording might have violated federal or Kentucky wiretapping laws. (But see Orin Kerr’s valuable analysis at the Volokh Conspiracy, here and here). Still, the episode raises an important question for journalists: Is it legal to secretly tape a conversation you overhear in a public place? For example, if a public body goes into executive session but you can hear what they say through the door, can you record too?
The states and the federal government have statutes of varying scope prohibiting “wiretapping,” a term that usually includes not just bugging of phones but surreptitious audio recordings of people engaged in face-to-face communications. The federal wiretapping statute, for example, provides that it’s a federal crime to “intercept” an “oral communication.” (There’s an exception under federal law if the taper “is a party to the communication” or if “one of the parties to the communication has given prior consent to such interception.” 18 U.S.C. § 2511. )
An “oral communication,” is defined, essentially, as a private conversation: “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” In other words, absent permission of one party to the conversation, it’s a federal crime to record an overheard conversation if the parties reasonably think and act as if they’re speaking in private. Depending on the circumstances, the statute might not apply if the person recorded is speaking in a place, and at a volume, such that she could reasonably expect to be overheard from a public location.
The law under the Kentucky statute, applicable in the McConnell situation, is not expressly limited to private conversations. However, commentary by the Kentucky Crime Commission, which the courts frequently cite, suggests that, like the federal law, it may be intended to reach only private conversations: “A conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected [by the Kentucky wiretapping statute]. A person who desires privacy of communication has the responsibility to take the steps necessary to insure that his conversation cannot be overheard by the ordinary ear.” Thus, it’s somewhat ambiguous whether the taping of the McConnell conversation violated Kentucky law.
The case law on wiretapping in Massachusetts is clearer: a recorded communication need not be private in order for it to come within the scope of the Commonwealth’s wiretapping law. In Commonwealth v. Hyde, 434 Mass. 594 (2001), the defendant secretly recorded a police officer during a traffic stop of the defendant’s car, and argued in the resulting criminal case that the wiretapping statute did not apply because the officer had no reasonable expectation of privacy while carrying out his public duties. The Supreme Judicial Court rejected the argument, noting that the wiretapping statute is not restricted to conversations in which there is a reasonable expectation of privacy in the communication.
Thus, in Massachusetts, a secret recording of a conversation through a closed door probably violates the wiretap statute, even if the participants could reasonably expect that they would be overheard through the door. Moreover, Massachusetts is what’s known as an “all party consent” state: like 11 other states, including Connecticut and New Hampshire, the permission of one party to record the communication doesn’t absolve a taper from liability. Rather, the permission of all parties to the communication is required.
Today, nearly everyone walks around with an mobile phone or other device capable of recording audio. In some circumstances, the temptation to record an overheard conversation can be almost irresistible. But the laws of the states differ vastly; it may not always be possible to predict whether a judge will find a reasonable expectation of privacy to exist; and the penalties for guessing wrong are severe. Journalists, in short, should familiarize themselves with the rules of taping and, in ambiguous cases, seek legal advice.