We (Still) Need More Facts to Know If Recording the McConnell Campaign Meeting Violated Federal Law

Mother Jones recently released a surreptitiously recorded conversation of a Mitch McConnell campaign meeting. Talking Points Memo reports on some allegations about who recorded the communication and in what circumstances:

A local Democratic official in Kentucky said that two leaders of the group Progress Kentucky recorded a behind-closed-doors meeting between Senate Minority Leader Mitch McConnell (R-KY) and campaign advisers, WFPL News reported Thursday.

Jacob Conway, who sits on the executive committee of the Jefferson County, Ky. Democratic Party, told WFPL that Shawn Reilly and Curtis Morrison of Progress Kentucky bragged to him about recording the meeting from outside the room where it was held.

The meeting was held Feb. 2 at the newly opened McConnell campaign headquarters at the Watterson Office Park in Louisville, Ky. following an open house event.

Conway said Reilly and Morrison told him that they did not attend the open house, but overheard the meeting from outside the room. According to WFPL, the door leading to the room where the meeting was held has a vent at the bottom and a large gap underneath, which is presumably how Reilly and Morrison recorded the meeting.

“They were in the hallway after the, I guess after the celebration and hoopla ended, apparently these people broke for lunch and had a strategy meeting, which is, in every campaign I’ve been affiliated with, makes perfect sense,” Conway told WFPL. “One of them held the elevator, the other one did the recording and they left. That was what they told to me from them directly.”

Conway continued, “Apparently the gentlemen overheard the conversation and decided to record it with a phone or recording device they had in their pocket. Could’ve been an iPhone, could’ve been a Flip camera or something like that.”

The new facts raise two issues: First, whether this violated federal law, and second, whether it violated Kentucky state law. I’ll cover federal law here, and if I have time later I’ll try to get to the state law issue.

So did it violate federal law? It turns out that the issue is complicated. At this point, I think we need more facts to know.

Here’s my tentative thinking. Under federal law, the primary question is whether the recording violates the Federal Wiretap Act’s ban on intercepting “oral communications.” Oral communications are defined in relevant part under 18 U.S.C. 2510(2) as a communication “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” In simple terms, it’s okay to record someone speaking in public; it’s a crime to record them speaking in private.

But there’s an exception to the statute: “a party to the communication” is allowed to record the conversation “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)(d). In simple terms, a person who is part of the communication is allowed to record it as long as they don’t have an unlawful purpose in making the recording, but someone who isn’t part of the communication can’t make the recording.

So we need to break down the analysis into two parts: First, did the recording intercept an “oral communication,” and, if so, was the interception by a party to the communication with a lawful purpose.

Let’s start with the first part, whether the recording intercepted an oral communication, focusing on Sixth Circuit precedent where possible. In general, courts have indicated that the test mirrors the Fourth Amendment standard: Use of a recording device to record a conversation is illegal if the listener had a reasonable expectation of privacy. McKamey v. Roach, 55 F.3d 1236 (6th Cir. 1999). But the courts are not exactly coherent in how they apply this equivalence. Some courts focus on whether there would have been a Fourth Amendment “search” if a government official had done the same recording — that is, whether the government act would violate a reasonable expectation of privacy given where the recording device was placed and in what circumstances. On the other hand, other courts focus more on the likelihood that the conversation would be recorded from the standpoint of the speaker.

If you take the former approach, then I don’t think we have all the facts yet that would allow us to answer the Fourth Amendment question. The TPM story tells us that Reilly and Morrison were in a “hallway” after an open house, and that they overheard the meeting from outside a closed door to a “room” where the meeting was held. I’d want to know if that hallway was inside the campaign headquarters or in some public place. In other words, were Reilly and Morrison standing where any person was allowed to be, such as in a public area of an office building, where there is no reasonable expectation of privacy? Or were they in a private hallway inside the offices of the McConnell campaign after the open house was over, where the case that there was a reasonable expectation of privacy among the participants of the conversation was much greater? It sounds like it was a private hallway, just based on the fact that the door had a vent at the bottom (which I’m imagining is something like this). But I don’t think we know that with any certainty yet.

At least one Sixth Circuit precedent took the latter approach. In Dorris v. Absher, 179 F.3d 420 (6th Cir. 1999), the Sixth Circuit held that an violated the Wiretap Act when he surreptitiously recorded employees in a storage room/bathroom through a recording device that worked when the employer was not there. The Court focused on the fact that it was unlikely that the employees would be overheard in their conversations without their knowledge:

The conversations took place only when no one else was present, and stopped when the telephone was being used or anyone turned onto the gravel road that was the only entrance to the office. The record thus indicates that the employees took great care to ensure that their conversations remained private.

Moreover, the office was a small, relatively isolated space. The employees could be sure that no one was in the building without their knowledge. The Abshers rely on Kemp v. Block, 607 F.Supp. 1262 (D.Nev.1985), a case in which the employee-plaintiffs, who worked in a single room, were found to have had no reasonable expectation of privacy. In that case, however, the single room was part of a larger office complex, meaning that others could easily overhear their conversations. In contrast, the entire office in the present case consisted of a single room that could not be accessed without the employees’ knowledge. We therefore conclude that the employees had a reasonable expectation of privacy in their workplace.

If that’s the prevailing approach, then you’d want to know more about the layout of the office building: How easily could others with rights to the space overhear such conversations?

The most factually similar case I could find was a district court case from DC that was decided soon after the Wiretap Act was passed. In United States v. Carroll, 337 F.Supp. 1260 (D.D.C.1971), the court held that it was not an interception of an oral communication to record a loud conversation from an adjacent hotel room where the person who made the recording happened to be staying. That’s the closest set of facts I could find, although it’s not clear how close that case is: As the judge noted, the recorder did “not eavesdrop in a position where an individual would not normally be expected to be,” which may not be the case here. Again, it depends on facts we don’t yet know.

In short, I think we need to know more facts, and even then, the legal standard is likely to be pretty murky. We may not be able to know with confidence if the recording was legal or illegal.

I mentioned that there is an exception to the statute: A party to the conversation can record the call, at least if they have a lawful purpose in doing so. Let’s turn to that issue now. The question of who is a party to the communication is clearest in the phone call case: as most circuits have recognized, a party is the actual participant in the call. See S.Rep. No. 90-1097, at 93-94 (1968). Anyone who is on the line counts. But it’s harder to apply the concept of a party to the communication in the case of an oral communication, in which a person might be present but not speak. I haven’t found that many cases on it for a simple reason: Most audio bugging cases involve installation of bugging equipment and subsequent use when the installer is not present, so it is obvious that they are not parties to the communication in those cases. But who is a party to a conversation when they are carrying the recording device? Is a anyone who is present in the room a party? Anyone who is known to be present? Anyone in earshot? At this point I’m not entirely sure. My guess is that courts would say that a person who is eavesdropping from just outside the room with a closed door is not a party to the communication, as they were unknown to the speaker, but there’s not a lot of case law on it that I could find.

UPDATE: I should have added two more points.

First, the two issues above are actually closely related, in that they’re both trying to do the same thing: Model Fourth Amendment caselaw. Under the Fourth Amendment, a party to a conversation can record the conversation, which the Court has expressed at various times both as a question of a reasonable expectation of privacy but also expressed using language echoing consent. See, e.g., United States v. White, 401 U.S. 745 (1971); United States v. Hoffa, 385 U.S. 293 (1966). For some technical reasons that aren’t relevant here, the Wiretap Act ends up somewhat awkwardly codifying this concept in two different places — first in the definition of oral communication, and second in the consent exception. But the two parts are trying to codify the same Fourth Amendment concepts and cases. Given that, I think it’s probably more analytically straightforward to rest the analysis in such cases on the oral communication issue rather than the consent issue. But I just point out both prongs because that’s how the statute is written.

Second, I should have said a bit about the added wrinkle if you think that the people doing the recording are parties, you also need to deal with whether they conducted the recording for an unlawful purpose. The standard for this varies a bit circuit to circuit, and I didn’t see any 6th Circuit case law on it when I looked earlier, but in general the issue is whether the purpose of the recording was to further some sort of tortious or criminal act independent of the act of recording itself. See, e.g., Caro v. Weintraub, 618 F.3d 94 (2d Cir. 2010).