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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:  October 21, 2009
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Topic category:  Other/General

A Primer on Surreptitious Recording for Prospective Intrepid Investigators

Proving the truth can be both personally and legally perilous.

There are two general classes of crimes—malum per se and malum prohibitum.

Malum per se is a Latin phrase signifying "an evil in itself," while malum prohibitum means "that which is wrong because forbidden by law."

If surreptitious recording by a party to a conversation is treated as evil (and the vast majority of the states of the United States don't), it is malum prohibitum, not malum per se.

The First Amendment Handbook (http://www.rcfp.org/handbook/c03p01.html) provides a convenient summary of the law on surreptitious recording:

"Of the 50 states, 38, as well as the District of Columbia, allow you to record a conversation to which you are a party without informing the other parties you are doing so. Federal wiretap statutes also permit one-party-consent recording of telephone conversations in most circumstances.Twelve states forbid the recording of private conversations without the consent of all parties. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.

"The federal wiretap law, passed in 1968, permits surreptitious recording of conversations when one party consents, 'unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.' Amendments signed into law in 1986 and 1994 expand the prohibitions to unauthorized interception of most forms of electronic communications, including satellite transmissions, cellular phone conversations, computer data transmissions and cordless phone conversations."

"Most states have copied the federal law. Some expand on the federal law's language and prohibit all surreptitious recording or filming without the consent of all parties. Some state statutes go even further, prohibiting unauthorized filming, observing and broadcasting in addition to recording and eavesdropping, and prescribing additional penalties for divulging or using unlawfully acquired information, and for trespassing to acquire it. In most states, the laws allow for civil as well as criminal liability.

"Many of the state statutes make possession of wiretapping devices a crime even though one-party consent to taping conversations may be allowed."

James O'Keefe's brilliant sting on Planned Parenthood a couple of years ago apparently was conducted in full compliance with both federal and state law.

In "The Truth is Too Scandalous for YouTube" (posted at Townhall.com on September 23, 2008), Hannah Giles reported on that sting as follows: "In the summer of 2007 O’Keefe made phone calls to several Planned Parenthood clinics across the country. He only made these phone calls in states where it is legal to audio record without the other party's consent (i.e. Ohio, New Mexico, Idaho, Oklahoma). During the course of these calls, O’Keefe posed as a donor who expressed his desire to give money to Planned Parenthood. He would do so as long as they could guarantee his money would be used for the abortions of black babies, and went on to express his 'belief' that there are just too many black people around. Every Planned Parenthood clinic he called assured him his wishes would be fulfilled. O’Keefe says, 'This only confirmed the evidence of Planned Parenthood's eugenic ideology is consistent with the agenda of their founder, Margaret Sanger.'”

The spectacular sting on ACORN conducted by O'Keefe and Ms. Giles in the summer of 2009 included both a one-party consent state (New York), the one-party consent District of Columbia and several two-party consent states (Maryland, California and Pennsylvania).

Matthew Vadum (who is not an attorney) recently opined on Maryland law as follows: "...it is unlawful to record someone in the state of Maryland under a very specific set of carefully defined circumstances. I'm not aware of any serious legal thinker who believes that the wrongdoing employees in ACORN's office had an expectation or privacy or that a state wiretapping law somehow trumps the First Amendment's protection of the press freedoms exercised by the filmmakers."

But Vadum's argument really seems to be that what is initially a crime under a statute somehow is decriminalized retroactively for filmmakers (at least if they uncover evidence of wrongdoing). There's no statutory exception for filmmakers, and Vadum's view is unlikely to be embraced by a court upholding the rule of law. It may be that a fact-finder will conclude that there was no reasonable expectation of privacy, but that is unclear and the Baltimore State Attorney's office is investigating. It may be determined that those now terminated employees at ACORN's Baltimore office did not maintain privacy, but it is hard to believe that they thought they might be being recorded.

Maryland criminalizes only willful surreptitious recording, but California criminalizes intentional surreptitious recording.

It's more likely that a fact-finder will find unawareness of the statutory prohibition than excuses what would have been a crime if there had been awareness than it is that a surreptitious recorder's recording equipment was used accidentally instead of intentionally.

Perhaps more importantly, those statutes that prohibit surreptitous recording do not include an exception for filmmakers or investigators, even those with noble intentions.

Such an exception is unlikely to be read into such statutes, because those statutes are intended to fix a line that must not be crossed and are violated as soon as the recording of a conversation which is surreptitiously recorded begins. At that time, there is no evidence from the surreptitious recording of wrongdoing by the person or persons surreptitiously recorded.

Proving the truth can be both personally and legally perilous.

I'm glad my state (New York) is a one-party consent state and O'Keefe and Ms. Giles put God and country first!

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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Copyright © 2009 by Michael J. Gaynor
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