Did Recording the McConnell Meeting Violate State Law?

I blogged below about whether recording the McConnell meeting violated federal law; in this post I’ll offer some thoughts on whether it violated state law. With the caveat that I had never looked at Kentucky’s surveillance statutes until an hour ago, my sense is the answer is pretty unclear from the sparse sources available.

Kentucky’s eavesdropping statute is Ky. Stat. 526.020, and its relevant text is extremely simple:

A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop, whether or not he is present at the time.

“Eavesdrop” is then defined in Ky. Stat. 526.010:

“Eavesdrop” means to overhear, record, amplify or transmit any part of a wire or oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device.

So the basic terms here seem to mirror the federal statute — recording an “oral communication” is unlawful unless a party to the communications consents. Unlike the federal statute, however, there is no definition of “oral communication” under the state statute. And as far as I can tell, there are no Kentucky cases interpreting the phrase.

However, there is commentary on the meaning of the eavesdropping provision from the Kentucky Crime Commission/Legislative Research Commission that accompanied the enactment of the provision. The KCC/LRC commentaries seem to be taken quite seriously in interpreting Kentucky state criminal statutes — I found 29 citations to it in Kentucky state criminal cases in the KY-CS Westlaw database. Here’s the most relevant commentary:

A conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected by KRS 526.020. A person who desires privacy of communication has the responsibility to take the steps necessary to insure that his conversation cannot be overheard by the ordinary ear.

The same commentary then seems to suggest that the statute is designed to reflect modern Fourth Amendment law, much like the federal definition of “oral communication”:

KRS 526.020 is in no way based on the property concept of trespass. The rationale of Olmstead v United States, 277 US 438, 48 SCt 564, 72 LEd 944 (1928), which was based on the common law concept of trespass, has been overruled by the Supreme Court in Katz v United States, 389 US 347, 88 SCt 507, 19 LEd(2d) 576 (1967). The Court rejected the view which required a physical intrusion into any given enclosure, ruling that the Fourth Amendment protects people, not places, and that which a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. (Olmstead v United States also overruled by Berger v New York, 388 US 41, 87 SCt 1873, 18 LEd(2d) 1040 (1967).)

I also found a reference via Westlaw to a 1984 Kentucky Attorney General opinion construing the statute. The Ky AG website only has opinions going back to 1992, but here’s the West headnote for the AG opinion:

Where a person inadvertently hears on a radio a conversation emanating from a cordless telephone, there is no violation of the state eavesdropping statute; but the recording of that conversation and the playing of that recording on a radio or television station without the consent of one of the parties to the original conversation would violate Kentucky’s eavesdropping statute, and subject the violator to criminal penalties.

Hmm, hard to know what to make of that, at least without reading the AG’s opinion.

So what to make of these sources? It’s hard to say, given that the key terms are undefined and there is very little caselaw interpreting the state eavesdropping law (which is often the case for state surveillance statutes). Perhaps the Kentucky statute really just mirrors the federal statute discussed below. I’m not entirely sure.

One intriguing clue is the Kentucky Crime Commission commentary that “[a] conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected by KRS 526.020. A person who desires privacy of communication has the responsibility to take the steps necessary to insure that his conversation cannot be overheard by the ordinary ear.” This is arguably quite relevant: the McConnell campaign discussion apparently was loud enough to be overheard from outside the door; from what we can tell, it was recorded from a phone or video camera without audio amplification. So that language makes me think that the recording was probably not a crime. At the same time, the commentary is ambiguous. It could be read as merely making the obvious point that eavesdropping requires a device. That is, listening with your ears is different from recording with a microphone. That distinction might explain the Ky AG opinion, which (form the headnote, at least) appears to distinguish between listening live and making/using a recording. But it’s hard to know without seeing that opinion, which I couldn’t find online.

Anyway, that’s my sense after spending just a little time with the relevant materials. But as I said, I’ve never looked at Kentucky’s statute before. If anyone is more familiar with this law than I am, I hope you’ll offer your thoughts in the comment thread.

UPDATE: A few readers sent on a copy of the Attorney General opinion, and unfortunately it contains almost no reasoning. Here’s all it says about the relevant application of Kentucky law:

A person inadvertently hearing such conversation from a radio receiver or on another wireless telephone has not
violated KRS Chapter 526 since he would fall within the exception cited in the first part of KRS 526.070.
But, when he records that information and passes it on to another without the consent of one of the parties to the
original conversation, he has violated the eavesdropping statutes.

That doesn’t help much. The reference to the first part of 526.070 is Kentucky’s version of the extension telephone exception, a historical exception from the era of party lines when many people shared a phone: If you listened in on your phone on the party line, that wasn’t an illegal interception. So they seem to be suggesting that the inadvertent listening in thanks to the inadvertent broadcast makes your phone an extension telephone. But there’s no analysis at all of why that applies, or why recording the conversation would be illegal; it’s just a conclusion.