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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:  January 22, 2010
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Topic category:  Government/Politics

Pennsylvania ACORN Housing Employee Sues Hannah Giles and James O'Keefe

In protecting privacy, the constraints of the Act apply to everyone, law enforcement and private citizens alike.

Yesterday "Pimp and Pro" ACORN sting principals Hannah Giles and James O’Keefe III were sued in the United States District Court for the Eastern District of Pennsylvania by Katherine Conway-Russell, a Philadelphia resident who has worked for ACORN Housing since March 2008 as an office director.

Some Giles-O'Keefe fans are looking forward to swift dismissal or discovery, but the case is hardly frivolous, neither ACORN nor ACORN Housing is a party to the action and both sides are subject to discovery.

Ms. Conway-Russell met with Ms. Giles and O’Keefe, when they came to her office posing as a prostitute and pimp. The essence of her complaint is that Ms. Giles and O’Keefe “purportedly sought information regarding housing and mortgage opportunities in Philadelphia, but were in reality imposters who deliberately and surreptitiously created video and audio recordings in an attempt to discredit plaintiff Conway-Russell and ACORN Housing Corporation,” and that they subsequently “disseminated the illegally obtained recordings in a manner calculated to harm and injure” Ms. Conway-Russell.

Under Pennsylvania law (18 Pa. Cons. Stat. § 5703), it is a third-degree felony to intentionally intercept, endeavor to intercept, or get any other person to intercept any wire, electronic, or oral communication without the consent of all the parties.

Ms. Conway-Russell rlies upon Pennsylvania's “Wiretapping and Electronic Surveillance Control Act, which not only criminalizes, but authorizes a civil cause of action for a person whose oral communications were intercepted, disclosed or used in such a way. Anyone whose communication has been intercepted can recover actual damages of $100 per day of violation or $1,000, whichever is greater, and can also seek punitive damages and costs related to the litigation. Ms. Conway-Russell is seeking, from both O’Keefe and Giles, compensatory, liquidated and punitive damages, as well as costs related to the suit.

The complaint is available at http://americasright.com/wp-content/uploads/2010/01/conway5.pdf.

The complaint alleges that O’Keefe first called to set up an appointment to “discuss election matters,” was informed him that “ACORN did not provide advice on running campaigns,” then asked for advice with regard to a mortgage-related issue, was not given an appointment, nevertheless soon arrived with Ms. Giles and entered Ms. Conway-Russell's office under the “pretext that they were there for housing and mortgage advice.”

Complaint: "Unknown to plaintiff Conway-Russell, defendants O’Keefe and Giles had no interest in mortgage our housing issues; rather, they were there to attempt to entrap ACORN Housing employees into engaging in inappropriate counseling. In furtherance of this goal, defendants O’Keefe and Giles secretly recorded by hidden camera and microphone the entire conversation they had with plaintiff."

In the vast majority of states and the District of Columbia, such surreptitious recording is lawful. But Pennsylvania strongly disapproves.

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).

Ms. Conway-Russell is represented by David Rudovsky of Kairys, Rudovsky, Messing & Feinberg LLP.

Wikipedia:

"David Rudovsky (born 1943, Queens, New York) is a civil rights lawyer in Philadelphia. He is a founding partner of the law firm of Kairys, Rudovsky, Messing, and Feinberg[1], and a Senior Fellow at University of Pennsylvania Law School, where he teaches evidence and constitutional criminal procedure. In 1986 he was named a MacArthur Fellow by the John D. and Catherine T. MacArthur Foundation.

"Rudovsky has twice appeared before the United States Supreme Court. He represented the plaintiff in Mitchell v. Forsyth, 472 U.S. 511 (1985), which addressed whether a government official could be sued for damages based on his conduct in authorizing a warrantless wiretap for the purpose of gathering intelligence regarding a suspected threat to national security. The Supreme Court held that the official was immune from suit because his actions had not violated clearly established law...."

Neither Ms. Giles nor O'Keefe can plausibly claim government immunity and Pennsylvania law on surreptitious wiretapping is well and long established.

From the Pennsylvania Attorney General's website:

Foreward: The following article was written by the late Eric M. Noonan, Assistant Executive Deputy Attorney General. Eric joined the office of Attorney General in 1988 and over the next eleven years became a recognized expert in wiretap law. He also gained a reputation for honesty, integrity and diligence throughout the law enforcement community in Pennsylvania. His intelligence and wit made him a beloved and trusted supervisor.

Eric M. Noonan

February 19, 1958 - April 24, 1999

WIRETAPPING & ELECTRONIC SURVEILLANCE IN PENNSYLVANIA By: Eric M. Noonan

Assistant Executive Deputy Attorney General

Organized Crime & Narcotics

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.

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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