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ACORN Sues Muckrakers and News Site:

Politoc reports that ACORN has filed suit in Maryland against the two young film makers who recorded their visits to ACORN offices disguised as a pimp and prostitute seeking tax and other assistance. ACORN's suit also extends to the internet news site, Breitbart.com. The complaint is here. More from the Washington Post here.

ruuffles (mail) (www):
Stupid question, but how do news outlets manage to do those "hidden camera investigations" without running afoul of these laws?

Tidbit: former famous person Linda Tripp was also prosecuted for this law.
9.23.2009 7:42pm
Cato The Elder (mail) (www):
SECOND!
9.23.2009 7:45pm
OrinKerr:
I like these two paragraphs from the Post story, with emphasis mine:
In an exclusive interview with The Washington Post, founder Wade Rathke said conservative claims that ACORN is a "criminal enterprise" that misuses federal and donor funds for political ends -- a claim contained in a report by House Republicans -- are a "complete fabrication." He said exaggeration and conjecture about the group are being passed off daily on cable television and Web blogs as documented fact.

"It's balderdash on top of poppycock," said Rathke, who was forced out last year amid an embezzlement scandal involving his brother.
9.23.2009 7:47pm
luagha:
Oh please, let it go to discovery.
9.23.2009 7:52pm
Mark N. (www):
If there's a Constitutional question (i.e. if it was illegal recording under Maryland law, and the issue is whether that illegality is Constitutional), it seems Bartnicki v. Vopper (2001) is the closest precedent. Bartnicki would absolve Breitbart, at least, of liability for republishing the illegally recorded conversation, if found to be a "matter of public concern". I'm not aware of any caselaw that would shield the parties who actually recorded the conversation in violation of state surveillance/recording laws, though.
9.23.2009 7:56pm
ruuffles (mail) (www):

Bartnicki would absolve Breitbart

No small amount of irony that Andrew Breitbart's butt gets saved by a decision in which Rehnquist, Scalia, and Thomas dissents.
9.23.2009 8:00pm
helene edwards (mail):
A SLAPP suit by leftist pussies. What a surprise.
9.23.2009 8:02pm
ruuffles (mail) (www):
I like this last paragraph from Rehnquist's dissent in Bartnicki.

Surely “the interest in individual privacy,” ante, at 2, at its narrowest must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations. The Court subordinates that right, not to the claims of those who themselves wish to speak, but to the claims of those who wish to publish the intercepted conversations of others. Congress’ effort to balance the above claim to privacy against a marginal claim to speak freely is thereby set at naught.
9.23.2009 8:04pm
Kenneth Anderson (www):
Can some knowledgeable people explain to non-litigator types like me what sorts of things could be sought in discovery, limits to that, etc. ... I don't do this kind of law at all, and I'd be interested to know what all is implied by a lawsuit of this kind and discovery process.
9.23.2009 8:04pm
Steve:
Seems like they have a valid claim, at least on the face of it. Maryland is a two-party state, meaning all parties have to consent to a videotaping. As for those TV news hidden-camera investigations... no idea, really. Maybe they don't do those in Maryland.

In terms of discovery, you can always ask for whatever the heck you want, but the case seems to present a fairly narrow issue. Damages is the tricky part and I'm not sure what theories would be pursued.
9.23.2009 8:18pm
PatHMV (mail) (www):
The bottom line rule is that you can discover anything which has the potential to lead to relevant evidence. The problem which the investigative reporters here will face is that this isn't a liable suit, where you could do lots of discovery to establish the defense of truth. I'm not sure what, if any, defenses there are to the laws against one-party taping (a terrible, unjust law, in just about every instance I've ever seen of it).

So the first question you have to ask, K.A., is what defenses are available, if any, in lawsuits based on this cause of action. If any of them relate to the conduct of the plaintiff (i.e., if there is any defense of "justification" for conducting one-party, non-consensual taping), then you could discover any facts which might lead to relevant evidence regarding that conduct.
9.23.2009 8:27pm
J. Aldridge:
Apparently Maryland only requires consent for audio and not video. I don't know, a transcript instead of audio of the actual wrong doing meet the requirements of the law?
9.23.2009 8:28pm
rc:
It takes chutzpah to inflict distress to fire employees, then sue the people whose facts 'made you' fire said employees.

So who gets paid, in the disastrous event that ACORN wins? Does ACORN get paid, or the people they fired?
9.23.2009 8:30pm
rc:
"Both employees are listed as plaintiffs on the complaint,"

oh.
9.23.2009 8:31pm
santa monica (mail) (www):
I really can't imagine why ACORN is filing this lawsuit. From the facts, there may well be a cause of action. But since the lawsuit ensures that the matter will continue to be played out publicly, it seems ultimately self-destructive. Now, if ACORN decided to disband, then the lawsuit might make sense ("We're already screwed, so why not try to make a few bucks?")

As a liberal, I am embarrassed by the actions of these few ACORN workers. But since it is 100% certain that the success of the film-makers here will lead to future conservative 'investigations' of liberal organizations (and, one assumes, liberal 'investigations' of conservative groups), maybe--just maybe--everyone will be more inclined to follow the law. (The fact that any of us need the fear of Big Brother watching us to encourage law-abiding behavior is a very sad commentary on, well, something. I'm not sure what it says about us as a society. But I am sure it's nothing positive.)
9.23.2009 8:38pm
PatHMV (mail) (www):
Steve, I'm pretty sure that the TV news hidden-camera folks don't do them in two-party consent states. I also think they don't do them that much any more, other than the MSNBC "catch a predator" shows.

For what it's worth, the Maryland statutes on intercepting "oral communications" is here.

Here's some definitions:

(2) (i) "Oral communication" means any conversation or words spoken to or by any person in private conversation.

(ii) "Oral communication" does not include any electronic communication.

(3) "Intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.


Then there's this, on the civil liability. Note it only provides for one defense, a reasonable believe that the intercept was authorized by the court:

§ 10-410. Civil liability; defense to civil or criminal action.



(a) Civil liability.- Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this subtitle shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use the communications, and be entitled to recover from any person:

(1) Actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(2) Punitive damages; and

(3) A reasonable attorney's fee and other litigation costs reasonably incurred.

(b) Defense.- A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this subtitle or under any other law.


On quick review, it's looking like the best defense to use is whether this was a "private conversation." Given that the ACORN building is open to the public to walk in, for the purpose of receiving advice on such matters, and in fact ACORN receives both donations and public funding specifically for the purpose of giving advice and counsel to members of the public, I'm not sure whether those are "private conversations" within the meaning of the Maryland statute.
9.23.2009 8:41pm
PaulD (mail):
It would seem to me that the direct and proximate cause of the Plaintiffs' injuries are their own actions. By analogy, if I were to secretly record a gangster attempting to extort money from a business , it would seem odd if the gangster could sue me and argue that the publication of the tape was the proximate cause of him being convicted of a crime and sentenced to jail. It is the gangster criminal conduct, not the act of exposing it, that caused the conviction and jail sentence.
This case is different from one where the publication of innocent information that is personal in nature causes injury.
9.23.2009 8:41pm
David Welker (www):
Seriously, as a liberal, I am against this lawsuit by ACORN against these film makers. ACORN needs to reflect on its hiring processes and professionalism -- not attack the people who made the fact that organizational reflection is necessary evident.
9.23.2009 8:47pm
Fub:
PatHMV wrote at 9.23.2009 8:27pm:
I'm not sure what, if any, defenses there are to the laws against one-party taping (a terrible, unjust law, in just about every instance I've ever seen of it).
One exception, at least in CA, is that if the fact of recording is disclosed and the other party continues talking, he has consented to the recording.
9.23.2009 8:53pm
PatHMV (mail) (www):
PaulD... the problem is that these states, the ones which have this horrible two-party consent requirement, lump the prohibition in the same statute that prohibits wire-tapping and eavesdropping on conversations to which one is not a party. The anti-wiretapping statutes are in part aimed at preventing police from eavesdropping on criminals without probable cause and a warrant or other court order. There are statutory minimum damages (plus attorney's fees!) available, even if they can't prove any actual damages.
9.23.2009 8:55pm
PatHMV (mail) (www):
By the way, here'sa list of the one-party and two-party consent states.
9.23.2009 8:58pm
californiamom:
Well, first ACORN has to serve them and these two are pretty good at disguises.
9.23.2009 9:04pm
Quixotic (mail):
Question for the litigators here (which I estimate might be 30 - 40 percent of visitors):

Given that this suit is about wiretapping, and not defamation, is this really a discovery boon for the defendants? Wouldn't the judge limit the pursuit of information to narrow issues such as, e.g., whether the 2 investigators received permission to film employees of the plaintiff?
9.23.2009 9:04pm
PatHMV (mail) (www):
Quixotic... see my earlier response to Kenneth Anderson. We'd have to have somebody research Maryland judicial opinions to answer your question. There may be some case law providing additional defenses (like for "newsgathering") which are not spelled out in the statute itself. Even if Maryland does not currently recognize any such exceptions, the judge may allow discovery to create a record, should a higher court decide to adopt such a rule (several other states have such rules), or may allow discovery into ACORN's practices in order to allow the defendants to pursue a First Amendment defense, a claim that to prohibit taping of such newsworthy activity, by a publicly-funded entity, would in fact infringe the rights of the press to observe and report factual information.
9.23.2009 9:12pm
Allan (mail):
If I remember correctly, there was a suit by Food Lion against an undercover reporter in North Carolina in the mid-1990s that covered this. I don't know how it turned out.

Also, there was the case of people listening in to phone conversations involving a congressman in Florida. It did not turn out too well for the recorders.

If this was illegal, they should be prosecuted... If you are a victim of a crime or a tort, perhaps reporting it is not the worst thing in the world.

This does little to absolve ACORN.
9.23.2009 9:13pm
arbitraryaardvark (mail) (www):
It is my hope that the defendants will countersue for violation of their civil rights to freedom of the press under the Maryland constitution and the 1st A. I think that their investigative reporting was of the sort the free press clauses were designed to protect.
I wonder, not knowing much about the ethical standards in Maryland, whether it was in any way unethical for these lawyers to bring this action, and if so would it be appropriate for some volokh reader, not me personally, to bring this case to the attention of the Maryland attorney disciplinary folks.
9.23.2009 9:15pm
PatHMV (mail) (www):
Allan... the Florida case involved a couple who used a radio scanner to hear and record conversations between Newt Gingrich and other congressmen to which the couple was not a party at all. The court ruled against both them and the Democratic congressmen who illegally released their tape to the media. That was entirely appropriate, because they really were eavesdropping.

But to make it a crime, or even a civil tort, to record a conversation in which one is participating? That's not about protecting privacy, that's about preventing one party from having evidence of the threats or crimes being discussed by the other party. In the past 10 years, I can't think of a single instance that such statutes have been involved, except where the police were trying to intimidate private citizens who were taping the police officer while the officer was threatening them or otherwise acting unprofessionally. Such statutes also serve to protect domestic abusers, by making it illegal for their victims to record their threats.
9.23.2009 9:18pm
AK (mail):
The Maryland Wiretap Act only protects private conversations. This was not a private conversation. Game over.
9.23.2009 9:20pm
Domer88:
Over at NRO, a lawyer has written in and pointed out some sticky issues with having the two fired employees and ACORN filing suit together. Since the employees were harmed by ACORN, which was presumably harmed by the filmmakers, they should sue separately.

NRO post
9.23.2009 9:25pm
PatHMV (mail) (www):
AK, much as I'm on the non-ACORN side here, I don't see a definition in the statute of "private conversation," and there's some explicit language later in the statute which requires that all parties must consent to make any taping legal, so the mere presence of more than 2 people clearly does not make a conversation "non-private." Do you have some insight into actual Maryland law, or just a conclusion?

Domer88, the analysis from the lawyer at NRO is not bad, but the lawyer had not read the Maryland statute at all (for instance, he didn't know that it specifically imposes civil liability, as well as criminal sanctions). The key question remains what defenses, if any, the Maryland courts have recognized which are not included in the statutory language.
9.23.2009 9:30pm
AK (mail):
PatHMV:

"[W]hen an oral communication is intercepted, determining whether a violation of the Wiretap Act occurred hinges on a jury determination that at least one of the parties had a reasonable expectation of privacy."

Fearnow v. Chesapeake &Potomac Tel. Co., 342 Md. 363, 376 (1995).
9.23.2009 9:34pm
A. Zarkov (mail):
What is ACORN going to recover from these two kids in the unlikely event they should win the lawsuit? As far as I can tell, neither were agents of Breitbart or Fox News, so there are no deep pockets. Hannah Giles and James O'Keefe will get an avalanche of contributions for their legal defense. On the other hand, the downside for ACORN is huge.

1. Possibly more embarrassing material from discovery.

2. The suit makes ACORN look petty and vindictive. They should concentrate on cleaning up their act.

3. The suit will keep re-animating the news cycle, which works to the detriment of ACORN, Obama and the Democrats.

5. ACORN could face faces counter suits.

6. The suit will fire up the conservative base even more.

Stupid is as stupid does.
9.23.2009 9:42pm
Waste (mail):
Couple questions for the lawyer types here.

Does ACORN have standing to sue on behalf of the employees? I can see how the employees could have standing and claim a damage. They were fired afterall. But they were fired by ACORN. What damages has ACORN suffered however? Any damages to their reputation would be from the actions of their (fired) employees and not from O'Keefe. Unless they can show the videos were significantly altered I would think.

Maryland has a press shield law. Oldest in the country. Does it cover O'Keefe? There is a Maryland 2007 cases where a blogger was not covered in a libel case since he did not receive payment from the website. However I would think, but don't know, that O'Keefe was paid by Breitbart.

There is a federal law that protects websites from comments posted by posters. Can't remember the name of it but have seen it mentioned on this website a number of times. Would that protect Breitbart from claims?

Someone already asked. But wouldn't the 1st A invalidate the MD two party consent requirement?
9.23.2009 9:52pm
Steve:
Establishing that there is a jury question is a far cry from "game over."
9.23.2009 9:52pm
Waste (mail):
Maybe I should clarify the last question. Wouldn't the 1st A invalidate the MD two party consent law in regards to the press. If O'Keefe is determined to be a member of the press of course.
9.23.2009 9:54pm
AK (mail):
Steve:

"Reasonable expectation of privacy" is an objective standard. It doesn't mean the jury gets to do whatever it wants.
9.23.2009 9:55pm
ruuffles (mail) (www):

Would that protect Breitbart from claims?

Breitbart is protected by a 2001 SCOTUS ruling (scroll up up up). It was 6-3, guess who the dissenters were.

Establishing that there is a jury question is a far cry from "game over."

You'd think they'd go for a bench trial given the jury pool will be from Baltimore.
9.23.2009 9:55pm
G.R. Mead (mail):
In a case denying Plaintiff's motion for summary Judgment:
"... plaintiff has also failed to prove that the videotaped sales presentation was an oral communication within the meaning of the Maryland statute... The videotaped conversation consisted of a sales presentation in a private home. The evidence does not indicate whether or not the plaintiff intended his listeners to pass the message on to others, or whether his intention was reasonable under the circumstances. The setting of the meeting also raises unresolved factual questions. Although the meeting took place in a private home, it was not the plaintiff's home, but the home of a stranger. As this Court noted in an earlier ruling: “A person's reasonable expectation of privacy is a matter to be considered on a case-by-case basis, taking into consideration its unique facts and circumstances." Benford v. American Broadcasting Co., Inc., 649 F.Supp. 9 (D.Md. May 14, 1986)(citations omitted)

The standard for privacy in one's own home seems well-established, the staandard for another person's home less so, and on the issue of a publicly open office seems hard to show based on this authority:

" ... whether [the plaintiff] exhibited an actual, subjective expectation of privacy with regard to his statements. If we answer that question in the affirmative, we then ask whether that expectation is “one that society is prepared to recognize as ‘reasonable.’" Malpas v. State, 116 Md.App. 69, 695 A.2d 588 (Md.App. Jun 25, 1997)(interpreting oral communication interception in light of federal wiretap caselaw).

Privacy does not seem to extended to offices open to the public, if Maryland follows federal law: "... as an ordinary matter law enforcement officials may accept a general public invitation to enter commercial premises for purposes not related to the trade conducted thereupon." United States v. Berrett, 513 F.2d 154, 156 (1st Cir.1975)."

It appears Maryland would likely do not grant privacy recognition, even in the context of a "club" that was too easy with public entry: "Although a club operated for a select clientele may not be public, “[t]he fact that the premises are maintained as a club with a membership policy is not conclusive in favor of the club. Failure to enforce limitations on admittance would warrant the conclusion that the persons operating the club had no reasonable expectation of privacy.”" McMillian v. State, 85 Md.App. 367, (Md.App. 1991) (NO. 260 SEPT. TERM 1990)citing Commonwealth v. Cadoret, 388 Mass. 148, 445 N.E.2d 1050(1983); rversed on other grounds McMillian v. State, 325 Md. 272, 600 A.2d 430 (Md. 1992).

Looks like Defendants have a fairly safe discovery vehicle to me ...
9.23.2009 9:55pm
PaulD (mail):
"Given that this suit is about wiretapping, and not defamation, is this really a discovery boon for the defendants? Wouldn't the judge limit the pursuit of information to narrow issues such as, e.g., whether the 2 investigators received permission to film employees of the plaintiff?"

The plaintiff are alleging as part of the damages they suffered "injury to their reputations."
9.23.2009 10:01pm
George Lyon (mail):
There should be an as applied challenge to the law given that they are journalists. As to discovery, it appears plaintiffs are claiming damages for loss of reputation. Given that it opens a wide ranging inquiry into their character. Defendents should also remove the case to federal court on diversity grounds, which appears to exist, in order to get the case heard on appeal by the 4th circuit.
9.23.2009 10:07pm
Brooks Lyman (mail):
I think what AK means by the conversation not being "private" is that it was conducted in the offices of ACORN, apparently with at least two ACORN employees involved, so it's really a business consultation or something. Whether this cuts any ice in MD is unknown to me.
9.23.2009 10:08pm
RowerinVa (mail):
Does Maryland have a SLAPP suit law (strategic litigation against public participation) and would this potentially violate it?

"How dare you film me doing crimes" certainly sounds like a sanctionable subject for a lawsuit. I wonder if ACORN's lawyer is going to be the recipient of a bar complaint. I only know what I've read but this sounds like a dangerous thing to do with a bar card.
9.23.2009 10:10pm
PaulD (mail):
"What damages has ACORN suffered however? Any damages to their reputation would be from the actions of their (fired) employees and not from O'Keefe."

This could be fun. Couldn't the defendants file an impleader naming the fired employee and claiming that the fired employees are in fact responsible for the any damages to ACORN's reputation caused by this incident. They could follow up with a motion to disqualify plaintiff's counsel due to the conflict of interests between the plaintiffs.
9.23.2009 10:10pm
EPluribusMoney (mail):
This is a good example of why so many people hate lawyers. Even with a bad case or no case they can make your life miserable for years and cost you everything you own. These guys are lucky they have millions of people who support them, but for most people this would be the end of life and they know it.
9.23.2009 10:23pm
VFBVFB (mail):
I do not see how Acorn has standing to sue. The statute gives the right to sue to “[a]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or used.” Courts and Judicial Proceedings, § 10-410(a). The statute defines Acorn as a person, because Courts and Judicial Proceedings, § 10-401(5) defines person to include corporations. However, while Acorn might be a “person” for purposes of the statute, it is not the “person” whose communications were recorded.
9.23.2009 10:36pm
PatHMV (mail) (www):
The mere fact that our two young reporters were acting as journalists does not immediately absolve them of responsibility. Journalists do not have the right to break generally applicable laws. So, for example, it remains illegal for a reporter to wiretap somebody's house, or intercept their private cellphone conversations with a radio scanner, and their purpose in doing so would not matter.

The First Amendment does kick in to allow other reporters, who were not a party to any misconduct in the initial taping, to report what the law-breaking reporters already disclosed. Thus, in the case involving the couple which illegally wiretapped and taped Newt Gingrich's phone call, the couple was liable, and Rep. Jim McDermott was liable for disclosing the intercept which the couple gave to him to the press, but none of the newspapers which published the content which McDermott had given them were liable.

PaulD makes a good point, that the quality and value of ACORN's (and the ex-employees') reputation will be a key factor in damages, so that will open up a fair amount of discovery.

Oh, and ruufles, you can stop reminding us that some case which Rehnquist, Thomas, and Scalia dissented in may be the key to protecting these two young reporters. Conservatism is not like John Kerry's Skull and Bones, where we're all required to support and agree with each other, no matter what. Sometimes, you know, we have differing opinions (gasp!), and that doesn't make anybody a hypocrite or anything.
9.23.2009 10:37pm
PatHMV (mail) (www):
VFBVFB... good point, and I think you're probably right, but the implication of that argument is that no corporation can ever be a victim of wiretapping has potentially some significant implications. If, say, you put a wiretap on an office phone, maybe on a line shared by several employees, are the only victims the individual human beings involved?
9.23.2009 10:43pm
VFBVFB (mail):
--- but the implication of that argument is that no corporation can ever be a victim of wiretapping ---

There is a middle ground where you could say that an employee is an agent for the corporation to the extent that the employee is acting within the scope of her employment. Thus, to the extent that an employee is acting within the scope of her authority, her statements are attributable to the corporate employer.

However, in this case, Acorn disavowed the statements of its employees, thus they are claiming that the employees’ statements are not theirs. Thus, they certainly cannot sue for it.
9.23.2009 10:55pm
Ex-Fed (mail) (www):
Yeah, this suit has some very serious problems: Food Lion, Bartnicki, the definition of "private conversation", etc. -- not to mention the political issues. Quick-and-dirty review here.
9.23.2009 11:08pm
PatHMV (mail) (www):
Well, employees can be acting legally within the course and scope of their employment, even if their acts are in fact repudiated later... sometimes even if their acts were formally in opposition to official policy of the company.

Hmm.... that last could be a great source of discovery for the defendants. Were these employees acting in the course and scope of their employment? Even if ACORN has an official policy manual deploring advising clients about tax fraud and under-age prostitution, does ACORN have a pattern and practice of not disciplining employees who engage in such behavior? Are employees regularly told that the official rules are only for show?

The more I look at this, the stupider this lawsuit seems. For the sake of their malpractice carrier, I hope the firm which drafted it fully explained all the ramifications to the head honchos at ACORN before filing.
9.23.2009 11:08pm
Ex-Fed (mail) (www):
Crap. Sorry, my link should have been this one.
9.23.2009 11:11pm
wyswyg:
<blockquote>
<i>On quick review, it's looking like the best defense to use is whether this was a "private conversation."</i>
</blockquote>


The statute in question covers the "interception" of communications via various methods. This seems to cover things like eavesdropping, but not the taping of a two party conversation.
9.23.2009 11:14pm
wyswyg:
What the heck happened there?
9.23.2009 11:14pm
PatHMV (mail) (www):
You know, the issue of the employees and ACORN suing together really is bizarre. The complaint (thanks for the link, Ex-Fed) asserts that the employees lost their employment as a direct and proximate result of the secret taping.

One COULD construe that as an admission by ACORN that, had the employees not been busted on tape, they would not have been fired. Is there any other way to construe that statement in the complaint?
9.23.2009 11:19pm
once litigated something similar (mail):
i once litigated something similar, and used cases like lachman v. Sperry, 457 F.2d 850, and Freese v. Gold, which rejected plaintiffs' claims when they are based on the plaintiff's desire that his/her bad conduct hidden. it can be presented as an equitable or legal defense.

i can't find Freese (Freeze?) v. Gold's citation, but it was a California case dealing with an accountant who revealed a client's fraud on insurers.
9.23.2009 11:23pm
Ex-Fed (mail) (www):
PatHMV, that goes to an issue mentioned, but not resolved, in Food Lion -- proximate cause. What's the proximate cause for the firings and the reputational harm -- the misconduct by ACORN employees, or the revealing thereof?

Food Lion didn't have to reach that because it said that you can't evade defamation standards by trying to get reputational harm damages through other state law causes of action. That's exactly what they are trying to do here.
9.23.2009 11:24pm
PatHMV (mail) (www):
wyswyg... like Congress, you'll need to read the whole statute. "Intercept means the aural or other acquisition" of any conversation on any device. Trust me, that covers recording a conversation to which you are a party. Further, read later in the statute, where it specifically says that it's a defense to the statute if all parties to the conversation consent to the recording.
9.23.2009 11:25pm
once litigated something similar (mail):
i meant "remain hidden."
9.23.2009 11:27pm
PatHMV (mail) (www):
The other issue, of course, is that the statute certainly doesn't prohibit telling other people what was said in the conversation, it prohibits only the recording (and disclosure of the recording). In theory, if one had the mental ability to do so, one could memorize every word of a conversation, and then repeat it verbatim later. Thus, the reporters could have run the story without any tapes. Logically, ACORN would have to argue that their reputation suffered because nobody would have believed the reporters (truthful) accounts, had it not been for the allegedly unlawful taping.

Was adding Breitbart as a defendant a bad idea? He's certainly the deep pockets, if that's what the suit is really about, but he's got a lot more resources to fight the suit. If ACORN just wanted some moral declaration, it would have been smarter to sue just O'Keefe and Giles.... particularly because, as your link notes, the ability to recover against the publishers of the tapes, even if they were illegally made, is non-existent.

I've seen some bone-headed lawyering in my day, but this takes the cake.
9.23.2009 11:32pm
wyswyg:
Here's a hypothetical. An armed robber walks into a 7-Eleven in Maryland and says "Give me all your money!".

Is it a violation of the Maryland law for a private party (the 7-Eleven) to tape this individuals words and actions? Can he sue the 7-Eleven for doing so?
9.23.2009 11:32pm
wyswyg:

"Intercept means the aural or other acquisition" of any conversation on any device.




That's a rather creative use of the word "intercept". It means that when your videotape your daughters birthday party, you are "intercepting" peoples communications.
9.23.2009 11:36pm
PatHMV (mail) (www):
Well, that's the actual statutory meaning, creative or not. I think it's more a technical use of the word, rather than "creative." I don't like the law, but that's what it is. In the 7-Eleven situation, that's not a "private conversation" in any sense of the word, I don't think. You have to read through the exceptions and defenses. There's a lot of stuff where common sense would tell you that taping should be ok, but it's clear from reading what's excepted (and what's not) that they're not legal.
9.23.2009 11:43pm
wyswyg:

In the 7-Eleven situation, that's not a "private conversation" in any sense of the word, I don't think.




I don't see why not. Do you think any and all conversations which occur within the 7-Eleven (and they all get caught) are not private? And what makes the one in question here not private? The illegal nature of it? What the ACORN people were saying was also an admission of intent to cmmit a crime.



Well, that's the actual statutory meaning




As I say, if that's the actual statutory meaning, half the people in Maryland are felons.
9.23.2009 11:49pm
Steve:
If a prospective client comes to my place of business, and they come into my office and we have a consultation, the idea that both parties have a reasonable expectation of privacy seems almost summary judgment-worthy.
9.23.2009 11:50pm
Billsv (mail):
After reading the comments I am left wondering why this lawsuit was filed. Could it be ACORN is trying to either intimidate or enjoin Giles, O'Keefe and Breitbart from releasing more videos we have not as yet seen.
9.23.2009 11:51pm
Steve:
Is it a violation of the Maryland law for a private party (the 7-Eleven) to tape this individuals words and actions?

I've never seen a security video that recorded audio, actually. Who knows, maybe this is the reason why.
9.23.2009 11:54pm
wyswyg:
So if CBS films a demonstration in Maryland, they need to obtain permission from everybody in the crowd before they air the film? Do they ever actually do that?
9.23.2009 11:55pm
wyswyg:

I've never seen a security video that recorded audio, actually.



I have. Don't know if they were from Maryland or not though.
9.23.2009 11:57pm
aces:
I've often seen signs in stores that state something like "These premises are under video and audio surveillance." IANAL, but wouldn't the signs constitute notice, and wouldn't entering the premises constitute consent to recording?
9.24.2009 12:22am
PatHMV (mail) (www):
wyswyg, half the people in Maryland have recorded conversations they've participated in without informing the other party that they're doing so?

Your demonstration example is just silly, and nobody says that the law requires that. But if the filming involves sound, and they aim the microphones at private conversations (chanting is not a private conversation), then yes, they would be on safest ground if they got permission from each person whose private conversations they were recording. Of course, in your example, CBS is not a party to any of those conversations, so they'd pretty much be in trouble in every state for eavesdropping, with taping equipment, on those conversations.

Now, are you actually asking questions to try to understand what the law says, or are you just looking to rant?
9.24.2009 12:23am
once litigated something similar (mail):
one of the points of the suit might be to discourage copy-cats. and they might win some money, who knows? the jury pool is likely to favor ACORN over conservative whites.
9.24.2009 12:25am
wyswyg:
<blockquote>
<i>half the people in Maryland have recorded conversations they've participated in without informing the other party that they're doing so? </i>
</blockquote>



According to your helpful information, what "intercept" means is simply <i>"the aural or other acquisition" of any conversation on any device. </i>

If you ever video anyone who is talking, you are "intercepting" their conversation. And you need their permission to distribute or broadcast that video (or audio) recording. That is the law.

I don't think you understand what the word "rant" means.
9.24.2009 12:30am
edh (mail):
The concealment of the camera in this instance, unlike an open video taping at a child's birthday party, may be a relevant distinction as to consent and reasonable expectation.
9.24.2009 12:36am
wyswyg:

Of course, in your example, CBS is not a party to any of those conversations



So not only is CBS not "intercepting" conversations which it is a part of, it is "intercepting" conversations to which it is not a part.

And you think this gets CBS off the hook, why? There is no exception in the law saying "you may of course intercept other peoples conversations to which you are not a part".



they'd pretty much be in trouble in every state for eavesdropping, with taping equipment, on those conversations




If every state had a law like Marylands, and if the SCOTUS allowed such laws to stand, yes, they would.
9.24.2009 12:38am
Angus:
I think ACORN is stupid to sue and drag out the negative attention. They'd be better off cleaning house, downsizing, and re-branding with a new name.

On the other hand, for the two operatives in question, a valuable lesson that actions have consequences. They should have thought to check applicable laws and choose ACORN offices where such two party laws did not apply.
9.24.2009 12:42am
PatHMV (mail) (www):
Angus, for all we know, the two reporters did do some research, and found judicial decisions in Maryland or other states which provide defenses for them. Or perhaps they decided that it was important enough to get the truth out that they would risk legal penalties. That's a fairly common outlook for journalists, in my experience.
9.24.2009 12:49am
wyswyg:

The concealment of the camera in this instance, unlike an open video taping at a child's birthday party, may be a relevant distinction as to consent and reasonable expectation.





By all means, point me to the section of the statute which discusses open versus concealed taping. I'm going to quote extensively from the law in question.

=====================================================

a) Unlawful acts.- Except as otherwise specifically provided in this subtitle it is unlawful for any person to:





(1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;





(2) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or





(3) Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.





(b) Penalty.- Any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than 5 years or a fine of not more than $10,000, or both.





(c) Lawful acts.-





(1) (i) It is lawful under this subtitle for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communications service to the public may not utilize service observing or random monitoring except for mechanical or service quality control checks.





(ii) 1. It is lawful under this subtitle for a provider of wire or electronic communication service, its officers, employees, and agents, landlords, custodians or other persons to provide information, facilities, or technical assistance to persons authorized by federal or State law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, if the provider, its officers, employees, or agents, landlord, custodian, or other specified person has been provided with a court order signed by the authorizing judge directing the provision of information, facilities, or technical assistance.





2. The order shall set forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specify the information, facilities, or technical assistance required. A provider of wire or electronic communication service, its officers, employees, or agents, or landlord, custodian, or other specified person may not disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished an order under this subparagraph, except as may otherwise be required by legal process and then only after prior notification to the judge who granted the order, if appropriate, or the State's Attorney of the county where the device was used. Any such disclosure shall render the person liable for compensatory damages. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order under this subtitle.





(2) (i) This paragraph applies to an interception in which:





1. The investigative or law enforcement officer or other person is a party to the communication; or





2. One of the parties to the communication has given prior consent to the interception.





(ii) It is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication in order to provide evidence:

=========================================== end of cite.




Remember the key word in all of this is "interept". That is what is prohibited. As PatHMV explained, intercept means "the aural or other acquisition of any conversation on any device". The only people in Maryland who may lawfully intercept conversations, which is to say, make recordings of them, are police officers.

This law is a constitutional monstrosity.
9.24.2009 12:59am
PatHMV (mail) (www):
(3) It is lawful under this subtitle for a person to intercept a wire, oral, or electronic communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception unless the 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 this State.

If the taping is open, and the individuals participating in the conversation are thus aware of it, and they continue with the conversation knowing it is being recorded, then they are consenting to the taping by their actions. The open versus concealed is an issue of consent.

wysywg, the law is bad, but not nearly as insane as you are trying to claim it must be. You are not interpreting it in any reasonable or even rational way, at this point.
9.24.2009 1:06am
luagha:
ACORN is actually in the process of trying to rebrand/expand itself as COI or something.

Not being a lawyer, I would think that the first thing you could do in discovery is find out, "Who the heck is ACORN anyway? What company were these people working for, who was their employer, and who employs them?" That in and of itself would be dangerous to ACORN.
9.24.2009 1:16am
wyswyg:

You are not interpreting it in any reasonable or even rational way, at this point.




Then you will have no problem proving that by citing the relevant passges from the statute in question. Get to it.

I'll even quote the rest of it here, for your convience.

=====================================================



2) (i) This paragraph applies to an interception in which:





1. The investigative or law enforcement officer or other person is a party to the communication; or





2. One of the parties to the communication has given prior consent to the interception.





(ii) It is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication in order to provide evidence:





1. Of the commission of:





A. Murder;





B. Kidnapping;





C. Rape;





D. A sexual offense in the first or second degree;





E. Child abuse in the first or second degree;





F. Child pornography under § 11-207, § 11-208, or § 11-208.1 of the Criminal Law Article;





G. Gambling;





H. Robbery under § 3-402 or § 3-403 of the Criminal Law Article;





I. A felony under Title 6, Subtitle 1 of the Criminal Law Article;





J. Bribery;





K. Extortion;





L. Dealing in a controlled dangerous substance, including a violation of § 5-617 or § 5-619 of the Criminal Law Article;





M. A fraudulent insurance act, as defined in Title 27, Subtitle 4 of the Insurance Article;





N. An offense relating to destructive devices under § 4-503 of the Criminal Law Article;





O. Sexual solicitation of a minor under § 3-324 of the Criminal Law Article;





P. An offense relating to obstructing justice under § 9-302, § 9-303, or § 9-305 of the Criminal Law Article;





Q. Sexual abuse of a minor under § 3-602 of the Criminal Law Article; or





R. A conspiracy or solicitation to commit an offense listed in items A through Q of this item; or





2. If:





A. A person has created a barricade situation; and





B. Probable cause exists for the investigative or law enforcement officer to believe a hostage or hostages may be involved.





(3) It is lawful under this subtitle for a person to intercept a wire, oral, or electronic communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception unless the 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 this State.





(4) (i) It is lawful under this subtitle for a law enforcement officer in the course of the officer's regular duty to intercept an oral communication if:





1. The law enforcement officer initially lawfully detained a vehicle during a criminal investigation or for a traffic violation;





2. The law enforcement officer is a party to the oral communication;





3. The law enforcement officer has been identified as a law enforcement officer to the other parties to the oral communication prior to any interception;





4. The law enforcement officer informs all other parties to the communication of the interception at the beginning of the communication; and





5. The oral interception is being made as part of a video tape recording.





(ii) If all of the requirements of subparagraph (i) of this paragraph are met, an interception is lawful even if a person becomes a party to the communication following:





1. The identification required under subparagraph (i)3 of this paragraph; or





2. The informing of the parties required under subparagraph (i)4 of this paragraph.





(5) It is lawful under this subtitle for an officer, employee, or agent of a governmental emergency communications center to intercept a wire, oral, or electronic communication where the officer, agent, or employee is a party to a conversation concerning an emergency.





(6) (i) It is lawful under this subtitle for law enforcement personnel to utilize body wires to intercept oral communications in the course of a criminal investigation if there is reasonable cause to believe that a law enforcement officer's safety may be in jeopardy.





(ii) Communications intercepted under this paragraph may not be recorded, and may not be used against the defendant in a criminal proceeding.





(7) It is lawful under this subtitle for a person:





(i) To intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public;





(ii) To intercept any radio communication that is transmitted:





1. By any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;





2. By any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;





3. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or





4. By any marine or aeronautical communications system;





(iii) To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of the interference; or





(iv) For other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted.





(8) It is lawful under this subtitle:





(i) To use a pen register or trap and trace device as defined under § 10-4B-01 of this title; or





(ii) For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful, or abusive use of the service.





(9) It is lawful under this subtitle for a person to intercept a wire or electronic communication in the course of a law enforcement investigation of possible telephone solicitation theft if:





(i) The person is an investigative or law enforcement officer or is acting under the direction of an investigative or law enforcement officer; and





(ii) The person is a party to the communication and participates in the communication through the use of a telephone instrument.





(10) It is lawful under this subtitle for a person to intercept a wire, oral, or electronic communication in the course of a law enforcement investigation in order to provide evidence of the commission of vehicle theft if:





(i) The person is an investigative or law enforcement officer or is acting under the direction of an investigative or law enforcement officer; and





(ii) The device through which the interception is made has been placed within a vehicle by or at the direction of law enforcement personnel under circumstances in which it is thought that vehicle theft may occur.





(d) Divulging contents of communications.-





(1) Except as provided in paragraph (2) of this subsection, a person or entity providing an electronic communication service to the public may not intentionally divulge the contents of any communication (other than one to the person or entity providing the service, or an agent of the person or entity) while in transmission on that service to any person or entity other than an addressee or intended recipient of the communication or an agent of the addressee or intended recipient.





(2) A person or entity providing electronic communication service to the public may divulge the contents of a communication:





(i) As otherwise authorized by federal or State law;





(ii) To a person employed or authorized, or whose facilities are used, to forward the communication to its destination; or





(iii) That were inadvertently obtained by the service provider and that appear to pertain to the commission of a crime, if the divulgence is made to a law enforcement agency.





(e) Violations of subsection (d).-





(1) Except as provided in paragraph (2) of this subsection or in subsection (f) of this section, a person who violates subsection (d) of this section is subject to a fine of not more than $10,000 or imprisonment for not more than 5 years, or both.





(2) If an offense is a first offense under paragraph (1) of this subsection and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense occurred is a radio communication that is not scrambled or encrypted, and:





(i) The communication is not the radio portion of a cellular telephone communication, a public land mobile radio service communication, or a paging service communication, the offender is subject to a fine of not more than $1,000 or imprisonment for not more than 1 year, or both; or





(ii) The communication is the radio portion of a cellular telephone communication, a public land mobile radio service communication, or a paging service communication, the offender is subject to a fine of not more than $500.





(3) Unless the conduct is for the purpose of direct or indirect commercial advantage or private financial gain, conduct which would otherwise be an offense under this subsection is not an offense under this subsection if the conduct consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted:





(i) To a broadcasting station for purposes of retransmission to the general public; or





(ii) As an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls.





(f) Violations of subtitle.-





(1) A person who engages in conduct in violation of this subtitle is subject to suit by the federal government or by the State in a court of competent jurisdiction, if the communication is:





(i) A private satellite video communication that is not scrambled or encrypted and the conduct in violation of this subtitle is the private viewing of that communication, and is not for a tortious or illegal purpose, or for purposes of direct or indirect commercial advantage, or private commercial gain; or





(ii) A radio communication that is transmitted on frequencies allocated under Subpart D of Part 74 of the Rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of this subtitle is not for a tortious or illegal purpose or for purpose of direct or indirect commercial advantage or private commercial gain.





(2) (i) The State is entitled to appropriate injunctive relief in an action under this subsection if the violation is the person's first offense under subsection (e)(1) of this section and the person has not been found liable in a prior civil action under § 10-410 of this subtitle.





(ii) In an action under this subsection, if the violation is a second or subsequent offense under subsection (e)(1) of this section or if the person has been found liable in a prior civil action under § 10-410 of this subtitle, the person is subject to a mandatory civil fine of not less than $500.





(3) The court may use any means within its authority to enforce an injunction issued under paragraph (2)(i) of this subsection, and shall impose a civil fine of not less than $500 for each violation of an injunction issued under paragraph (2)(i) of this subsection.

=======================================end of cite



If the taping is open, and the individuals participating in the conversation are thus aware of it, and they continue with the conversation knowing it is being recorded, then they are consenting to the taping by their actions.




You have an interestng idea of what the words "prior consent" mean. If a film crew is filming a crowd of people, or even one single person, have they given "pror consent" to being filmed?

Just the other day I saw a clip on the local (non-Maryland)news, one of those stories where the reporters go after some slum landlord and try to make them look bad or feel guilty.

"No comment", said the slumlord, hiding his face as best he could behind his newspaper.

Presumably this sort of thing is verboten in Maryland. It is according to the letter of the law under discussion. Or do think that Mr Slumlord give prior consent merely by walking out his door?
9.24.2009 1:28am
wyswyg:
<blockquote>
<i>wysywg, the law is bad, but not nearly as insane as you are trying to claim it must be.</i>
</blockquote>




The law begins by banning all recording and the broadcast and listening to of recordings. By all I mean ALL.

It then carves out exceptions. For instance, there is an exception in there which specifically permits you to listen to the public radio. No, I'm not making that up. Read the statute in question.

This is, by repute, a libertarian blog. I'd expect people here to take strong exception to the proposition that everything is illegal except that which the goverment specifically permits.

There is no specific exception in there permitting the taping of private gatherings such as birthday parties, bar mitzvahs, weddings, etc, your earnest efforts to carve one out to the contrary. Therefore this is illegal.
9.24.2009 1:48am
Opus:
This reminds me of the common law rule that a person can be guilty of larceny of contraband (e.g., if you walk into my garage and throw away my cocaine, you've committed a larceny). Sure, technically you can call the police, but....
9.24.2009 1:52am
EH (mail):
wysiwyg: srsly dude, try the "preview" button sometime.
9.24.2009 2:01am
wyswyg:
This site is hinky. It does not keep your html settings while you enter your password. Or rather it does keep them, since you see it there as text. It just does not process them correctly.
9.24.2009 2:06am
cb on bonanzle (mail) (www):
I will pray that acorn LOSES the suit. This has NOTHING do with "recording" laws being broken. This has to do with the simple fact that acorn was CAUGHT and EXPOSED for the liars that they are and what do liars do as usual? They RAIL. Liar spelled backwards is Rail.

That's all fine for the NWO freaks installing cameras on street poles everywhere and them wanting to vaccinate people with RFID chips and never mind the people screaming violation and privacy. But when the same recording tactics are used on the freaks, they make a big circus out of it and cry wolf.

See the hypocrisy. You can't have it both ways. The TRUTH ALWAYS comes out in the end. Tit for tat, butter for fat.
9.24.2009 5:55am
geokstr (mail):

PatHMV:
Oh, and ruufles, you can stop reminding us that some case which Rehnquist, Thomas, and Scalia dissented in may be the key to protecting these two young reporters. Conservatism is not like John Kerry's Skull and Bones, where we're all required to support and agree with each other, no matter what. Sometimes, you know, we have differing opinions (gasp!), and that doesn't make anybody a hypocrite or anything.

You have to understand a liberal's definition of "diversity" in order to make sense of much of what they say.

"Diversity" means variations in weight, height, gender, melanin content, lifestyle preference and other outward physical manifestations. It does NOT mean "differing opinions" within the membership of the Church of the Most High Liberalism. Such "thought differences" are considered heresy and are grounds for immediate excommunication.
9.24.2009 6:30am
Mark in Texas (mail):
I have heard two party consent laws like the one in Maryland and a few other states described as "Liar's Law" since the only persons likely to benefit from a prohibition against a participant in a conversation recording it is somebody who has something to gain by lying about it.

Is there any principled argument in favor of two party consent laws? Just because I can't think of any doesn't mean that none exist. Are these laws a result of sloppy legislating or an active desire to protect liars, extortionists and misbehaving public officials? Is there some other less sinister explanation?
9.24.2009 8:12am
TA:
This calls to mind that case a few years ago in which a cell phone call by Newt Gingrich was somehow wiretapped, sent to Congressman Rep. Jim McDermott, then leaked to the press. McDermott was supported by many news organizations in a resulting lawsuit. Will the press offer support to the filmakers in this suit? The case for doing so seems much better here.


The Associated Press, March 28, 2006, Matthew Daly

WASHINGTON, D.C. — A federal appeals court ruled today that Rep. Jim McDermott, D-Wash., violated federal law by turning over an illegally taped telephone call to reporters nearly a decade ago ...

... Lawyers for 18 news organizations — including ABC, NBC, CBS, CNN, The Associated Press, The New York Times and The Washington Post — filed a brief backing McDermott. ...

9.24.2009 8:16am
TA:
This calls to mind that case a few years ago in which a cell phone call by Newt Gingrich was somehow wiretapped, sent to Congressman Rep. Jim McDermott, then leaked to the press. McDermott was supported by many news organizations in a resulting lawsuit. Will the press offer support to the filmakers in this suit? The case for doing so seems much better here.


The Associated Press, March 28, 2006, Matthew Daly

WASHINGTON, D.C. — A federal appeals court ruled today that Rep. Jim McDermott, D-Wash., violated federal law by turning over an illegally taped telephone call to reporters nearly a decade ago ...

... Lawyers for 18 news organizations — including ABC, NBC, CBS, CNN, The Associated Press, The New York Times and The Washington Post — filed a brief backing McDermott. ...

9.24.2009 8:17am
TA:
apologies for double post
9.24.2009 8:18am
Kirk:
I've never seen a security video that recorded audio, actually. Who knows, maybe this is the reason why.

Well, in the olden days of actual recording-onto-tape, much (if not most) security video was done at a very low frame rate that wouldn't support any usable audio (in the interest of getting 6, 12, or even 24 hours' worth of surveillance onto a single VHS tape.)

wyswy[d]g,

Funny, it must be something special that you are doing, as I use html markup all the time here and it works just fine.
9.24.2009 8:25am
Borealis (mail):
Their are many advantages to ACORN to file the suit, such as casting aspersions on the investigators. But it may turn out that it hurts ACORN over time and they will drop the lawsuit.

You have to realize that two weeks ago, ACORN was on top of the world, and today its very existence is in serious question.
9.24.2009 8:48am
jawats (mail):
Here's a rather fascinating analysis - does it work?

From RedState -

Relevant excerpt:

What this means, as established by the clear text of the statute (and Maryland caselaw, including Fearnow v. Chesapeake &Potomac Tel. Co. of Maryland, 342 Md. 363 (Md. 1996)) is that at least one of the parties to the conversation must have had a reasonable expectation of privacy in the conversation. In other words, if someone stands up in the town square and shouts out loud and someone else records it, that is not a violation of the act.

The problem for ACORN is that, as a matter of law, the employees at ACORN had no reasonable expectation of privacy in what they said to members of the public who entered their offices. As made clear by Katz v. United States and its progeny (made applicable specifically to the Maryland Wiretap Act by cases such as Malpas v. State, 695 A.2d 588, 595 (Md. Ct. Spec. App. 1997)), “What a person exposes knowingly to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”

Get that? The conversations in question were knowingly exposed in a place of business to two customers who walked in off the streets. There is and can be absolutely no expectation of privacy for the ACORN employees in question. As such, the conversations are not “private conversations” under the Maryland Wiretap Act as a matter of law. I found all this in a matter of 15 minutes on Lexis. I’m sure another 15 (which I don’t have) will find numerous directly applicable precedents under Katz that are completely factually indistinguishable from the present case. In other words, this case is so totally without legal merit the very filing of it is almost sanctionable. And putting “they had a reasonable expectation of privacy” in the complaint is not enough for this claim to survive summary dismissal; the court does not have to accept conclusory statements and legal conclusions.
9.24.2009 9:28am
PaulD (mail):
I think that the redstate analysis looks good at first glance. I would bolster it with the following observations.
There were at least two ACORN employees present during the conversation. They were in aiding and abetting what they believed was a criminal enterprise, which is itself a crime.
Each had a fiduciary duty as employees of ACORN to report the criminal activity of the co-worker or , at the very least, the breach of their employer’s internal policies. I know that if it were revealed that I knew that one of my collegues was engaged in criminal activity that would bring my employer into disrepute, I would expect that I could be fired if I failed to report it.
If such a fiduciary duty is implied by law, or is expressly stated in the employment policies of ACORN, then neither employee could claim they had a reasonable expectation that the conversation would remain private.
Moreover, I suspect that one could find a federal statute or regulation that imposes a duty to report unlawful activity of an entity that is supported by federal funds. Again, this would abrogate any expectation of privacy.
9.24.2009 9:34am
11-B/2O.B4:
I for one hope that Giles and O'Keefe can keep this one alive long enough to get to discovery. I can't wait for ACORN's internal memos "Re: Underage El Salvadoran Prostitutes" to be published:)
9.24.2009 10:02am
Bob from Ohio (mail):

On the other hand, for the two operatives in question, a valuable lesson that actions have consequences.


"operatives"? They were not James Bond and Pussy Galore.

"Independent journalists"?

or

"Meddlesome kids"

would fit better.
9.24.2009 10:09am
PatHMV (mail) (www):
I don't think that 4th Amendment privacy law is particularly applicable here. The general public was not invited to listen in, the conversation was indoors, not out on the street. 4th Amendment law looks at whether the activity or items in question are exposed to individuals other than the person conducting the activity. Here, the statute contemplates that merely having 2 parties involved in the conversation does not make it non-private.

Look at it this way. Had the police bugged that conversation without the knowledge or consent of either party, that would be a 4th Amendment violation (in the absence of a warrant). You have a reasonable expectation of privacy in conversations conducted indoors, in a room, with other people. If so, then it's a "private" conversation, from the standpoint of 4th Amendment law.

Imagine I walk into a barber shop, and start whispering with the barber about very personal matters, bragging about sexual exploits or something. It would break the law for somebody to record us without either of our consent. That's a private conversation. So then imagine that the barber secretly recorded the conversation and releases it. Is the conversation now "public," simply because the barber always intended to release it to others?

PaulD's analysis regarding no reasonable expectation of privacy in discussions of crimes is, I think, a much stronger one to make.
9.24.2009 10:13am
Marco (mail):
Allan wrote:


If I remember correctly, there was a suit by Food Lion against an undercover reporter in North Carolina in the mid-1990s that covered this. I don't know how it turned out.


Food Lion only recovered $2, and the way I read this, their low recovery was because ultimately the reporting was not proven to be inaccurate. Now, while the two investigators do not have the same deep pockets as ABC News for a judgement against them, will they be able to secure similarly talented representation? I assume ABC news had a white-shoe NY law firm with a local face fronting for them.
9.24.2009 10:21am
PaulD (mail):
I think a big question is how "reasonable expectations of privacy" is interpreted under the Maryland law. The phrase is, of course, a term of art used in fourth amendment jurisprudence. It is quite possible that the legislature intended to use the phrase in the same way it is construed under the fourth amendment jurisprudence. On the other hand, Maryland Court's could reasonable construe it to mean something different. Someone needs to take a look at the Maryland case law.
A related though I have is that attorney/client privelege is under the law one of the most highly protected forms of confidential communications. Yet, attorney/client privelege does not protect communications between an attorney and a client when the attorney is advising a client how to break the law or when a client is seeking such advice. It doesn't seem right that employees using federal funds should be protected from disclosures that they were facilitating what they believed was criminal conduct. I am not sure how to articulate this as a more formal legal argument. Maybe someone can help.
9.24.2009 10:30am
_Drew_ (www):
"There were at least two ACORN employees present during the conversation. They were in aiding and abetting what they believed was a criminal enterprise, which is itself a crime. "

Aside: Didn't it recently come out that at least one employee DID report it to the police?

I'm guessing the relevant issue here is whether the session was considered a confidential meeting. Certainly there was the pretense that what the pimp/prostitute were getting confidential consult. But it's never clear in this situation whether that necessarily means that what the consultant says is actually confidential.

This does seem like a terrible PR idea for ACORN.

Finally, while I'm not making apologies for how they operate, but I do think it's worth noting that ACORN's mission involves hiring the poor and the poorly educated. Most of their problems seem to stem from incompetent or just plain dumb employees. I'm not sure what the alternative is: they're setting themselves up for incompetence, basically: but that's basically inevitable given their mission. And it strikes me as just sort sad, rather than the malevolent conspiracy Breitbart seems to envision.
9.24.2009 10:38am
Ex-Fed (mail) (www):
So I was wrong, and Maryland does have an anti-SLAPP statute. Sort of. It really sucks.
9.24.2009 10:46am
PatHMV (mail) (www):
Paul, I just don't see how, conceptually, you can adopt the 4th Amendment reading. I certainly understand the argument about the statute using that language, almost certainly on purpose, but I don't think it fits in any way which doesn't actually render the statute, in reality, a one-party consent law.

Do you agree that, had Giles and O'Keefe been a real pimp and prostitute, their conversation with ACORN in its office would have been conducted with a reasonable expectation of privacy in these circumstances? They're in the office of a private entity. The cops couldn't bug that without a warrant, yes? So there's a reasonable expectation of privacy in the conversation, vis-a-vis outsiders. And that would hold true regardless of the content of the communications. The warrantless wiretap recordings aren't admissible just because the participants in the conversation were, in fact, discussing a crime. Reasonable expectation of privacy in the 4th Amendment realm does not hinge on whether the conversation involves criminal activity or not.

So if you say this conversation was not "private" only because one party to it always intended to release it, then that completely undercuts the clear language of that statute that it takes the consent of all parties to legally record the conversation. Because regarding "private" conversations is the same in all contexts of the statute, a finding that this conversation is not "private" would mean that anybody who was not a party to the conversation could legally eavesdrop on it. I don't think we want to hold that anybody pointing a parabolic microphone in their direction could legally eavesdrop on the conversation, record it, and release the recording to the world without the permission of either of them.
9.24.2009 10:48am
PatHMV (mail) (www):
_Drew_, I don't see where Breitbart envisions a "malevolent conspiracy." You seem to be admitting that the many millions of taxpayer dollars paid to this organization are, by its nature, going to be administered very poorly, because its employees are incompetent and dumb, because they are poor and poorly educated.

Of course, not all poor people are poorly educated, nor are all poorly educated people necessarily dumb. ACORN could, I think, do a better job of screening employees, even if it wanted to continue to hire from the low end of the economic spectrum. Beyond that, my understanding is that ACORN's mission is to HELP the poor and the poorly educated, not particularly to employ them. If they think the only way to help them is by hiring lots of them, well, the phrase the blind leading the blind comes to mind.
9.24.2009 10:52am
Patrick216:
This is the right move for ACORN to make. Remember, ACORN is just a giant shell. They can (and will) create new entities to continue their enterprise. Thus, any negative reputational effects are pretty negligible.

But it's broader than just ACORN. There is a major liberal revolution underway. That revolution has been stalled due to conservative opposition and criticism that the MSM hasn't been able to contain. There are certain official governmental actions that can be taken to contain that criticism; hence, there's a communist in place as "FCC Diversity Czar" and talk of implementing "localism" rules on talk radio.

But as our President says, you have to "get in their faces." Criticism must be deterred, and a "SLAPP" lawsuit like this is one way to do that. A number of states have laws designed to protect people against these kinds of lawsuits, the majority of which get filed by local governmental bodies, landlords, or public interest groups of various kinds. Evidently Maryland isn't one of those states.
9.24.2009 11:15am
Neo (mail):
Tidbit: former famous person Linda Tripp was also prosecuted for this law.

Maryland has enacted an anti-SLAPP statute since then.
9.24.2009 11:43am
Ex-Fed (mail) (www):
Yes, Neo, but Maryland's anti-SLAPP law sucks compared to other states' anti-SLAPP laws.
9.24.2009 12:43pm
Seamus (mail):

"Both employees are listed as plaintiffs on the complaint,"

oh.



Are the employees and ACORN represented by the same counsel? Cuz if they are, I see an inherent conflict of interest.
9.24.2009 1:39pm
GatoRat:
Who cares if the defendants are guilty; sometimes breaking the law simply makes for good theater. I can't wait to hear ACORN's explanation of how discussions of setting up houses of underage prostitution are private, damn it. This is jolly good fun and worth every cent of the price. Where do I sent my check to keep this circus solvent?
9.24.2009 1:46pm
PatHMV (mail) (www):
Seamus, there's 3 counsel listed on the complaint. The signature block of the complaint simply calls all 3 of them "attorneys for plaintiffs." One of the attorneys fairly clearly is ACORN's lawyer, since his e-mail address is @acornmail.net. I can't find any record of any specific ACORN ties to the other two attorneys. It is not clear at all from the signature blocks on the pleadings whether the 3 attorneys are jointly representing all 3 parties or not.
9.24.2009 2:00pm
luagha:
>Aside: Didn't it recently come out that at least one employee DID report it to the police? >

Acorn claims that one of the people who was scammed asked his cousin about it, who is a police officer, two days later. The police officer consulted with a detective who works in human trafficking, who asked for more information. Then they let it drop.

Whether it's true or not, asking your cousin two days later is insufficient.
9.24.2009 2:01pm
PatHMV (mail) (www):
luagha... I'd like to have (illegally) intercepted that conversation at the family dinner table!

"So, cousin Officer Bob, I was wondering... like, is it illegal or anything to bring in underage girls from Ecuador and set them up working as prostitutes here in the states?

Uh huh. Ok, well let me know what the other people in your department think, will you?

Oh, and while we're at it, do you happen to know if it's illegal to hide income from the IRS by burying it in a tin can in your back yard?"
9.24.2009 2:51pm
ArthurKirkland:
First, conservatives and Republicans abandoned their principles concerning fiscal responsibility and became surplus-killers.

Then, they abandoned their "competence and reason" tradition and became the party of 'invade the wrong country' and 'whatever God tells Pat Robertson.'

Then, they abandoned their small-government position and became the party of warrantless surveillance and 'prosecute Tommy Chong.'

Now, they are abandoning their law-and-order stance to advocate 'guns for pedophiles" and 'crimes are OK it hurts ACORN.'

By this trajectory, conservatism may be distilled to torture, guns, and pro-life creationism.

Sounds like a winning coalition to me.
9.24.2009 4:44pm
wfjag:

Ex-Fed:
Yes, Neo, but Maryland's anti-SLAPP law sucks compared to other states' anti-SLAPP laws.

While I generally agree with your conclusion about MD's anti-SLAPP law, it looks broad enough to cover ACORN's suit under the facts.

Guess we'll find out, since I'd expect the first thing the first defendant served to do will be to remove the case to federal court based on diversity jurisdiction. One the face of the pleadings complete diversity exists.

This is one of the reasons I kept thinking "ACORN -- Are you folks completely nuts?" Unlike a state judge who might worry about bad press or re-election, a federal judge is likely to zero in on the First Amendment issues and (despite Pat's excellent analysis of the issue) conclude that the statute only applies in the 4th Amendment situation of interception by the government -- requiring the government to either get informed consent or a warrent to record. To extend the statute to covering recording by non-governmental persons runs afoul of the First Amendment's "Congress shall make no law". These are the sorts of issues that will make the case interesting to follow -- meaning reminding people of ACORN's activities instead of letting things die down.

Couple that with opening themselves up to discovery -- including discovery on funding and fund-raising and how the various parts of the ACORN family of companies relate and how the money flows, and having the 2 "fired" employees appear as plaintiffs with ACORN (which was allegedly their employer and which fired them) apparently represented by the same attorneys, you have to wonder if the decision-makers at ACORN forgot to take their medications for a few days before approving this suit.

Still, ACORN has succeeded at one thing -- made Biggovernment.com a prominent website quite rapidly. But, I don't think that was intended (either).
9.24.2009 5:00pm
Adam J:
Why on earth are there two party consent laws anyways? They only seem to help wrongdoers from having clear evidence presented against them.
9.24.2009 5:11pm
Bob Dole (mail):
@ Adam J: "Why on earth are there two party consent laws anyways? They only seem to help wrongdoers from having clear evidence presented against them."

Thats exactly why they exist.
9.24.2009 7:22pm
Joseph Somsel (mail):
Whatever the legal techicalities, no Maryland judge with an ounce of political savvy would let ACORN prevail in this case.

ACORN's agents, in ACORN's public office, aids and abets two people who walk in off the street in the commission of multiple repulsive felonies. And on the taxpayers' dime!

I predict that the Maryland bench will hope and pray that this gets kicked up to a federal court room so that this political hot potato doesn't get even touched by a Maryland judge. Do any of them want to be the next judge Ito?

If I were Big Government and the investigators, I'd counter-sue promptly. I'm no lawyer but I'd expect that would be a way to keep ACORN from dropping the action when they realize what a mistake they've made.

Anyone care to correct me on the countersuit issue?
9.24.2009 8:54pm
ArthurKirkland:
It's more important that people correct you on the legal "technicalities" issues.

Meanwhile, I gather you would have no objection were I to break into your home, take your computer, find evidence that you have falsified a tax return, and provide that evidence to state and federal tax authorities.

After all, it would be for the children taxpayers' dimes.
9.24.2009 9:06pm
New Pseudonym (mail):

Seamus, there's 3 counsel listed on the complaint. The signature block of the complaint simply calls all 3 of them "attorneys for plaintiffs." One of the attorneys fairly clearly is ACORN's lawyer, since his e-mail address is @acornmail.net. I can't find any record of any specific ACORN ties to the other two attorneys. It is not clear at all from the signature blocks on the pleadings whether the 3 attorneys are jointly representing all 3 parties or not.


I don't know what variation Maryland has on bar rules, but where I practiced, if you didn't put "Attorney for Plaintiff X" but just "Attorney[s] for Plaintiff[s]" you were representing to the Court and to defendants and their attorneys that you represent all plaintiffs. If it were not this way, then (for example) service of the answer to an attorney would be open to a party claiming a default judgment on the basis that the answer was only served on somebody else's attorney, but not theirs.
9.24.2009 11:05pm
Joseph Somsel (mail):
Mr. ArthurKirkland:

Your scenario is not anything like what happened here.

They were a open office serving the public while funded by the taxpayer, at least in part. The investigators walked in the front door, asked to see the staff in their regular public functions and were given criminal advice.

Let's step back for a weaker personal analogy where I work. I'm a nuclear engineer working for a private corporation. We don't see the general public but supposed someone called and made an appointment to see us for a project.

They arrive and in our conference room asked that we design a centrifuge plant to produce highly enriched uranium clandestinely and without IAEA awareness.

What if I sneaked in an audio recorder and THEN called the law and provided the recording to the press? Would you support our guest suing me for not getting his permission to record their proposal?

Exposure of criminal activity gained without coercion or trespass seems to serve the public good.

Sounds to me like Maryland's law here is ripe for jury nullification.

Again, pity the judge who lets ACORN prevail on their suit. The court of public opinion will crucify him.
9.25.2009 2:11pm

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