A Camera Records in Boca, Part Two

Today's post is a continuation of my analysis of the laws implicated by the recording of Mitt Romney's remarks at a fundraiser held at a private home in Boca Raton, Florida, on May 17, 2012. Part One identified these laws, including the Federal Wiretap Act, Florida's own wiretap law, and Florida's common law protection against "intrusion upon seclusion," and discussed the issue of consent under each law.

I will look at the underlying issue of whether anyone present at the fundraiser had a cognizable expectation of privacy. I will also examine the First Amendment issues raised by the disclosure of the recording of Romney to Mother Jones, which broke the story of the recording on September 17, 2012.

Applying the Law - Expectations of Privacy

As discussed in Part One, each of the laws potentially implicated by the Romney recording offers protection against use of an electronic device to record a private communication. But each of these laws also requires that there be a "reasonable expectation of privacy" in the communication or theplace in which the communication occurs; a discussion of "expectations of privacy" under each law follows.

Federal and Florida Wiretap Law

While the relevant standard of consent is different for each of the three laws at issue, two of these laws -- the Federal Wiretap Act and Florida's own wiretap law -- have been held to share the same standard for whether there is a cognizable expectation of privacy in a particular communication.

Specifically, these two laws have both been held to look to the "reasonable expectation of privacy" standard first enunciated by the Supreme Court in Katz v. United States, 389 U.S. 347 (1967). See U.S. v. McKinnon, 985 F.2d 525, 527 (11th Cir. 1993) (Federal Wiretap Act implicates constitutional standards under Katz); State v. Smith, 641 So. 2d 849, 851 (Fla. 1994) (same, with respect to Florida's wiretap law). Although the Katz standard was formulated with respect to unlawful searches by government officials, it has been used in wiretapping cases involving recordings made by private parties. See, e.g., Horning-Keating v. State, 777 So. 2d 438, 447 (Fla. 5th DCA 2001) (applying Katz standard to Florida wiretap law in case involving recording made by a private party).

As later clarified by the federal courts, the Katz test for whether a reasonable expectation of privacy exists has two prongs: (1) the individual asserting that a circumstance was private must exhibit a subjective expectation of privacy; and (2) the expectation of privacy must be one that "society is willing to recognize as reasonable." McKinnon at 527.

In this case, it is fair to assume that Mitt Romney, Marc Leder (the owner of the home), and their invited guests expressed a subjective expectation of privacy. The fundraiser was apparently closed to the general public, and the nature of Romney's comments indicated that he felt free to speak candidly to this particular group about his position on certain issues, in a manner  arguably unlike his statements to the general public.

Nevertheless, the expression of an expectation of privacy is irrelevant if that expectation is not reasonable. There is a fundamental issue that arises any time that information is communicated to a third party, because a speaker assumes the risk that listeners will betray him and reveal the contents of the communications to others. See, e.g., State v. Sarmiento, 397 So. 2d 643, 645 (Fla. 1981) (recognizing that when speaking to another in one's home, there is no reasonable expectation that the listener will not reveal the contents of the communication to others).

Florida has, however, drawn a distinction relating specifically to communications in the home between (1) awareness that a party to a conversation may repeat what they hear and (2) awareness that that such a party might be using a recording device. See Sarmiento at 645 (person conversing in his home has a reasonable expectation that unknown persons are not listening to conversation via "body bug" worn by participant in conversation); contrast