A Camera Records in Boca, Part One

Asis now commonly known, on May 17, 2012, presidential candidate Mitt Romney madea series of very candid comments at a private fundraiser held in the Boca Ratonhome of private equity manager Marc Leder. As Mother Jonesreported on September 17, someone present at that fundraiser (we have noidea whether it was a guest or someone working at that event) planted a videocamera in the room and captured portions of the audio and video of Romney’stalk.  I will leave the political import of this event to others (andthere has certainly been plenty of commentary), but I wanted to take a closerlook at whether the recording violated any laws and the consequences of thatdetermination.

Aswill be discussed below, there are a patchwork of laws on this topic, but the ultimate determination will largely turn on two issues: (1) whetherthere was consent to the recording that would protect the individual who madethe video against liability; and (2) whether there was a reasonable expectationof privacy in Romney’s remarks.  Part Oneof this post will discuss the laws that might apply, and the question ofconsent. Part Two, which will be posted tomorrow, will discuss whether Romney (oranyone else) had a reasonable expectation of privacy in the remarks, andcertain other relevant legal issues (such as protection that Mother Jones enjoys in such situations underthe First Amendment).

What Laws Apply?

Thereare a number of laws that might govern this recording. First, on the federallevel, there is 18 U.S.C. §§ 2510 et seq.,better known as the Federal Wiretap Act. Next, on the state level, we have Chapter 934 of the Florida Statutes, which containsFlorida’s state wiretapping law. Finally, we should also consider whether therecording implicates Florida’s common law protections of privacy. Each of theseis discussed below.

The Federal Wiretap Act

As relevant to this situation, the Federal Wiretap Act states that any person who

intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any ... oral ... communication ...[or] intentionally discloses, or endeavors to disclose, to any other person the contents of any ... oral ... communication, knowing or having reason to know that the information was obtained through the interception of a[n] ... oral ... communication ... shall be punished ... or shall be subject to suit[.]

18 U.S.C. § 2511(1).

For the purposes of the federal statute, an "oral communication" is "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." 18 U.S.C. § 2510(2) (emphasis added).

Furthermore, the statute does not apply

where [the party who makes the recording] is a party to the communication or where one of the parties to the communication has given prior consent to such interception 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.

18 U.S.C. § 2511(2)(c) (emphasis added).

The bottom line is that electronic recording of Romney's remarks would be prohibited under the Federal Wiretap Act unless (1) there was no justifiable expectation of privacy in the remarks or (2) the person who made the video was either a party to the conversation with Romney or was recording with the consent of such a party.

Florida's Wiretap Act

Florida's prohibition of the recording of oral communications is virtually identical to the Federal Wiretap Act in its scope, and only protects communications in which there is a reasonable expectation of privacy. Specifically, Fla. Stat. § 934.02(2) states that to be protected, an oral communication must be made in circumstances "justifying such expectation and does not mean any public oral communication uttered at a public meeting[.]"

However, Florida's law differs in one key respect potentially applicable to this case. Rather than permitting recording by a party to a communication or with the consent of a single party, Florida requires the consent of "all of the parties" for the consent exception to apply - one party is not enough. Fla. Stat. § 934.03(3)(d).

Florida's Common Law of Privacy

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