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 the place 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, however, at one point drew 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 Morningstar v. State, 428 So. 2d 220, 221 (Fla. 1982) (no reasonable expectation that individual with whom speaker was discussing stolen property in a private office was not wearing a "body bug"; distinguishing Sarmiento on basis of location).
This distinction relating to conversations in a person's home has not been recognized in the Fourth Amendment jurisprudence of the U.S. Supreme Court. To the contrary, in U.S. v. White, 401 U.S. 745, 748 (1971), a plurality of the Supreme Court held in a case involving recordings made in (among other places) a defendant's home that communicating with others is subject to the risk that they might, "unbeknown to [a speaker], carr[y] electronic equipment to record the speaker's words." See also U.S. v. Karo, 468 U.S. 705, 716 n.4 (distinguishing between voluntary recordings by guests and involuntary recordings: "A homeowner takes the risk that his guest will cooperate with the Government but not the risk that a trustworthy friend has been bugged by the Government without his knowledge or consent.").
Thus, in Sarmiento, Florida departed from the Supreme Court's Katz jurisprudence in finding that the fact that a conversation occurs in one's home enhances the expectation of privacy against electronic recording by a participant in the conversation. Notably, this departure prevents the application of Katz from transforming the "all-party consent" exception to Florida's wiretap law (discussed in Part One) into a "one-party consent" exception -- like that in the Federal Wiretap Act -- in the case of oral communications in the home.
Further complicating matters, Sarmiento discussed both Katz and Florida's own state constitutional guarantee against government interception of private communications, Article 1, § 12. See Sarmiento at 644-45. Sarmiento was decided prior to a 1982 amendment to the Florida constitution requiring Article 1, § 12, to be interpreted in conformity with U.S. Supreme Court precedent, and is no longer good law with respect to interceptions by the government, State v. Hume, 512 So. 2d 186-88 (Fla. 1987). It is not clear whether the amendment of Article 1, § 12, to conform with the Fourth Amendment would result in a Florida court similarly revisiting expectations of privacy under its wiretap act with respect to recordings made in a home by private (non-governmental) persons.
The net result of the analysis above is that Florida courts, applying the state wiretap law, might find that the mere fact that Mitt Romney was speaking to another person in Marc Leder's home did not waive an expectation of privacy against being recorded. In contrast, a federal court, applying the Federal Wiretap Act and following Katz, White and their progeny, would probably find that there was no reasonable expectation that someone present and listening to Romney would not record him.
Apart from this issue, the expectation of privacy standard also takes into account other surrounding circumstances of the conversation. This includes the number of people present at a particular conversation, whether the setting of the conversation is in some sense public, and the nature of the discussion. One Florida appellate court has held that it did not violate the Florida wiretap act for a subordinate law enforcement officer to record his supervisors' statements in a disciplinary interview; the court held that there was no reasonable expectation of privacy because of the number of persons present (five, the subordinate and four senior officers), the location of the interview (in a sergeant's office at a police station), and the nature of the interview (a disciplinary matter). Dept. of Agriculture & Consumer Servs. v. Edwards, 654 So. 2d 628, 632-33 (Fla. 1st DCA 1995); contrast Horning-Keating at 447 (legitimate expectation of privacy in communications between clients and attorney in attorney's office).
In the case of the May 17 fundraiser, the setting of the event at a private home might or might not be a basis for special protection, but it is at least not a generally public place that would weaken an expectation of privacy. On the other hand, the number of people present (including catering staff and others beyond the invited guests who might hear the remarks) and the nature of the communication (comments by a presidential candidate on core social and political issues) would appear to lean strongly against recognizing a reasonable expectation of privacy in these circumstances. Unless -- and perhaps even if -- the organizers of the event took significant measures to secure the event (such as requiring attendees and catering staff to sign non-disclosure agreements), it is doubtful that this is a discussion in which "society [would be] willing to recognize [an expectation of privacy] as reasonable."
Florida Intrusion Law
Although the Supreme Court of Florida has stated that a claim of intrusion involves intrusion into "a 'place' in which there is a reasonable expectation of privacy," , 863 So. 2d 156, 162 (Fla. 2003), echoing the Katz standard, the law on this issue is not well developed. It is therefore possible that Florida might apply a different privacy standard for its common law tort of intrusion.
That said, it seems likely that the common law analysis will at least track the consideration of factors identified above, with Marc Leder's privacy in his home weighed against his invitation of others into that place for a discussion of matters of significant public importance.
Applying the Law - The First Amendment
Rights of the Person Recording
Some readers might be wondering why the person making the recording is not simply protected by the First Amendment, such that application of wiretapping laws or Florida's intrusion law would be unconstitutional. The U.S. Court of Appeals for the Eleventh Circuit, the federal appellate court with jurisdiction over Florida, held in Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000), that "[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest." Even though Romney is not currently a "public official," there is a strong argument that as a presidential candidate he should be treated in the same manner.
This First Amendment right to record the statements and activities of public officials has recently been amplified by rulings in other federal circuits. See, e.g., ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) ("The act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording."); Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) ("[A] citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.").
Note, however, that all of these cases involved open recording in public places. The application of these rulings to secret recordings and to statements in private places is, unfortunately, murky. Even if Romney were treated as a public official, it would still be an extension of current law to apply the right recognized in Smith v. City of Cumming to a recording in a private home in what appears to have been a covert manner.
On the other hand, if the recording of Romney's remarks is legal (either because a First Amendment right is recognized or because the elements of a violation cannot be demonstrated), the distribution of the recording would indeed be protected by the First Amendment. The dissemination of true information on a matter of legimate public concern is generally legal under the U.S. Constitution notwithstanding state or federal laws to the contrary. Snyder v. Phelps, 131 S.Ct. 1207, 1215-16 (2011). According to the Supreme Court,
Speech deals with matters of public concern when it can "be fairly considered as relating to any matter of political, social, or other concern to the community," ... or when it "is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public[.]"
Id. at 1216. There is little question that Romney's statements meet this standard.
Rights of Mother Jones
Another question that might be asked is whether, if the recording was illegal and not protected by the First Amendment, Mother Jones might be liable in some way for the dissemination of that recording. The Federal and Florida wiretap laws, in addition to directly prohibiting certain recordings, also make it unlawful to disseminate unlawfully made recordings. 18 U.S.C. § 2511(1)(c); Fla. Stat. § 934.03(1)(c).
However, in Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court held that the First Amendment prohibits holding a media outlet liable for publishing information obtained by a source in violation of wiretapping laws, so long as (1) the media outlet was not involved in the illegal recording and (2) the information disclosed was of legitimate public concern. Accordingly, the Court found that it would be unconstitutional to hold a radio commentator liable under Federal Wiretap Act after he aired an unknown source's illegal recording of a telephone call relating to a union dispute, stating: "[A] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." Id. at 535.
David Corn, the Mother Jones reporter who was instrumental in convincing the source of the Romney video to release additional material in his possession, has indicated in an interview with Truthout that he became aware of the recording after it had been made. Therefore, he, and Mother Jones, did not encourage the recording and under Bartnicki could not be held liable for its creation even if the recording were illegal. Although he and Mother Jones apparently know the identity of the source and actively encouraged the disclosure of additional video in the source's possession, this is likely insufficient to remove Bartnicki's protection. See Jean v. Massachusetts State Police, 492 F.3d 24, 31-32 (1st Cir. 2007) (website publisher's "active collaboration" with source, including knowledge of both source's identity and fact that recorded material was obtained illegally, was not sufficient to distinguish case from Bartnicki so long as publisher was not involved in creation of underlying illegal recording).
It is also worth emphasizing that the above analysis is only relevant if the underlying recording was made illegally. If the recording was legal (because it was made with consent or in circumstances in which there was no reasonable expectation of privacy, or for some other reason), Mother Jones' publication of that information would be legal as well.
Reviewing the issues of consent discussed in Part One, it is possible that there was sufficient consent to avoid claims under the Federal Wiretap Act, particularly if the recording of Romney's remarks was made by an invited guest to the fundraiser. On the other hand, there probably was not the "all-party" consent required to avoid a claim under Florida's wiretap law, and it is not clear whether Marc Leder's voluntary allowance of others into his home would constitute consent that would waive an intrusion claim.
Given that it is unlikely that liability on all claims will be foreclosed by consent, the more important issue would be whether there was a reasonable expectation of privacy in either Romney's remarks or Leder's home during the fundraiser. The lack of such an expectation would be a fatal flaw in a wiretap or privacy lawsuit under any of the three laws discussed above, and there are sound arguments that expecting a presidential candidate's comments to remain private would be unreasonable. However, whether there was a reasonable expectation of privacy will ultimately turn on the specific facts of that event, not all of which are known to the public at this time.
The individual who recorded Romney's remarks might also argue that he is protected by the First Amendment when making a recording of a presidential candidate. This would represent an extension of current First Amendment law, but is not a facially invalid argument.
Regardless of whether the recording was illegal, Mother Jones is likely protected by the First Amendment. The legitimate public concern over comments made by a presidential candidate would override any interest in preventing Mother Jones from disseminating this information.
[Note: This post was edited on 9/22/12 to discuss the possible effect of the 1982 amendment of Florida's constitutional guarantee against government interception of private communications.]
Jeff Hermes is the Director of the Digital (nee Citizen) Media Law Project.