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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  September 25, 2009
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Topic category:  Government/Politics

Will ACORN Sue O'Keefe, Giles and Breitbart.com in California Next?

The California Eavesdropping Statute seems applicable to the San Bernardino sting, since the strange ACORN employee was alone with O'Keefe and Giles, did not appear to take notes, did not consent to be videotaped and appeared to have a reasonable expectation of privacy.

At National Review Online (http://corner.nationalreview.com/post/?q=ZmM3NjAzNjFkYjY5YzFjNzA0YTY0MWMxZWUwYmViY2Q=), attorney Darin Bartram of Baker & Hostetler, LLP.insisted that ACORN's lawsuit in Maryland against James E. O'Keefe, III, Hannah Giles and Breitbart.com LLC should be summarily dismissed.

What?

Pass up an opportunity to conduct discovery of ACORN?

Seriously, credit O'Keefe, Giles and Breitbart.com with an imaginative investigation culminating in a sensational expose in the best interests of America, condemn evil ACORN and appreciate the sacrifice they made.

They are not as safe from legal jeopardy as Bartram suggests.

Bartram's case: "Because the conversation of ACORN representatives was not private, and because the plaintiffs themselves consented to its recordation, the videotaping of the conversation by O’Keefe and Giles was entirely lawful" and thus "[t]he lawsuit should be summarily dismissed and ACORN should cease its dishonorable recrimination."

Bartram smartly and succinctly titled his post "Dishonorable Recrimination."

I heartily approve the characterization (which equally applies to the lawsuit by ACORN affiliate Project Vote against ACORN whistleblower Anita MonCrief).

But Bartram's claim that "[t]he lawsuit should fail because it attempts to misapply the [Maryland] wiretap statute to the legal recording of a non-protected conversation" is based on disputed factual claims and summary judgment is not granted if there is a genuine dispute as to a material fact."

Bartram: "...by its own terms, the statute only applies to private conversations. It also permits the recording of conversations when all of the parties to it consent. The statute defines intercept as the 'aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Md. Code Ann., Cts. & Jud. Proc. sec. 10-401(3)."

The statute is quoted properly and the facts may not be as alleged in the complaint, but the facts as alleged there state a cause of action.

Paragraph 8 of the complaint alleged: "In a private office in which Ms. Williams and Ms. Thompson had a reasonable expectation of privacy, Mr. O'Keefe and Ms. Giles engaged in private conversations with them."

Bartram: "The video reflects that the conversation took place in a conference room whose door remained open throughout the conversation. In addition, voices of non-parties to the conversation (including children) can be heard throughout the video, indicating that the conversation can be heard by non-participants. This conversation is clearly not private, and therefore not protected by the wiretap statute."

Only if the fact-finder finds that the conversation was not a private conversation.

There is no definition in the Maryland statute of "private conversation" and whether or not the now dismissed ACORN employees who are co-plaintiffs with ACORN in the lawsuit had a reasonable belief that the conversation was private is not likely to be decided as a matter of law.

Wisely, Bartram offered a second argument for dismissal.

Bartram: "In addition, the 'pimp' and the 'prostitute”'did not break the law because all parties to the conversation consented to the acquisition of the contents of the conversation. Under section 10-402(c)(3) of the Maryland wiretap statute, it is perfectly lawful for a person to intercept an oral communication when that person is a party to the conversation and all of the parties to the communication have consented to its interception. Because of the breadth of the defined terms 'intercept' and 'device' in section 10-401, it includes the acquisition of the contents of a conversation through the use of any device, including a pen and paper. One of the ACORN employees can clearly be seen in the video with a pen and paper for note-taking, i.e., for recordation of the contents of the conversation. Consent to that recordation happened when no one objected to the presence of the pen and paper for note-taking. The ACORN employees' lack of awareness that O'Keefe and Giles were using their own secret (and more accurate) recording device is immaterial once there was consent to the first method of recordation."

Bartram did not offer any statutory or case support for his conclusion.

Would a court hold as a matter of law that a person who notices that a party to a private communication is taking notes and does not object thereby consents to surreptitious videotaping of the conversation by any other person participating in the private conversation, either in its entirety or from the point the note-taking was noticed or should have been noticed?

Bartram's implied consent argument is imaginative, if not compelling, but even if it prevails in Maryland, it won't suffice in California if the sting at ACORN's San Bernardino office becomes the basis on a second lawsuit against O'Keefe, Giles and Breitbart.com.

The California Eavesdropping Statute seems applicable to the San Bernardino sting, since the strange ACORN employee was alone with O'Keefe and Giles, did not appear to take notes, did not consent to be videotaped and appeared to have a reasonable expectation of privacy.

Charles H. Kennedy and Walter M. Stella of Morrison & Foerster LLP,"Big Brother Employer May Be Watching: Monitoring Employees' Online Communications In The Workplace(http://library.findlaw.com/2003/Jun/13/132810.html):

"The California Eavesdropping Statute applies only to 'confidential' communications. Specifically, the Statute prohibits anyone who does not have the consent of all parties to a 'confidential communication' from eavesdropping upon or recording that communication by means of 'any electronic amplifying or recording device.' Cal. Penal Code § 632 (see http://www.leginfo.ca.gov/cgi-bin/displaycode? section=pen& group=00001 01000& file=630-637.9)."

Here are the pertinent parts of the California statute:

632. (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year,or in the state prison, or by both that fine and imprisonment....

(b) The term "person" includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all to a confidential communication to be overhearing or recording the communication.

(c) The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.

Unfortunately for O'Keefe, Giles and Breitbart.com, there's an important difference between the Maryland and California statutes: Maryland only criminalizes "willful" conduct, but California merely requires "intentional" conduct.

There does not appear to be a dispute that O'Keefe and Giles intended to and did videotape and/or facilitate videotaping in at least two ACORN offices in California.

Will a court read an exception into the statute for intrepid investigators who expose criminality?

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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