Doubtful.
One traditionally views wiretapping as the illicit recording of private conversations, or, at least, of conversations with respect to which the parties have a reasonable expectation of privacy.
Recording a phone call without obtaining the consent of the party with whom you are speaking? That’s wiretapping. Placing a device on a party’s phone to record phone calls that the party has with third parties? That’s wiretapping. Downloading software onto your computer so that you can record someone on Skype or GoogleTalk? That’s wiretapping. Placing a recording device in a room and recording the conversations that occur in that room? That’s wiretapping.
Recording a speech at a “closed to the public” campaign fundraiser, even at a private home? Eh. That’s questionable.
At first blush, it seems the Florida statute applies to the Romney videos. The Florida statute states that it is a punishable offense when a person:
(a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication; [This section seems to apply to the person who made the recording. “Intercept” is defined in the wiretap statute as “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.”
“Oral communication” is defined as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.” The person who recorded the video acquired the contents of Mitt’s oral communication through use of, say, a smart phone. So yeah — it seems applicable.]
(b) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
1. Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or [This subsection refers to the sort of wiretapping that one sees in cop movies.]
2. Such device transmits communications by radio or interferes with the transmission of such communication; [Same here.]
(c) Intentionally discloses, or endeavors 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 subsection; [Here’s where Mother Jones could, but likely won’t get in trouble. Yes, Mother Jones intentionally disclosed the oral communication, but did Mother Jones have knowledge that the information was obtained “in violation of this subsection”? Probably not. Mother Jones could easily argue that it didn’t expect the recording of a campaign fundraising speech to violate this particular subsection of Florida wiretapping laws since the statute seems to apply to “traditional” wiretapping, i.e., recording phone calls and the like. This is especially true if Mother Jones was not aware of specific admonishments by the Romney campaign not to record Romney’s speech at the fundraiser.]
(d) Intentionally uses, or endeavors 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 subsection; [Same as above — the issue is whether or not Mother Jones knew or had reason to know that the recording was obtained “in violation of this subsection,” which, again, deals with traditional forms of wiretapping.] or
(e) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication intercepted by means authorized by subparagraph (2)(a)2., paragraph (2)(b), paragraph (2)(c), s. 934.07, or s. 934.09 when that person knows or has reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, has obtained or received the information in connection with a criminal investigation, and intends to improperly obstruct, impede, or interfere with a duly authorized criminal investigation [This section is entirely inapplicable here.]
So, it seems like the statute applies. As such, should Florida authorities choose to purse the matter, the person who recorded the video might be in trouble. Theoretically, since Mitt Romney didn’t consent to the taping, the person who recorded the speech might be charged with a misdemeanor. Still, the person who recorded the video has a couple of defenses.
[read full post at ABLC]
Mark S.
Mitt says he stands by what he said, so no harm, no foul.
arguingwithsignposts
The tag is “eh”?
Steve
You’re such a lawyer. Here’s this lawyer’s quick take: are you really “intercepting” a communication if you’re one of the people permitted to hear it?
nitpicker
Except there needs to be a “reasonable expectation of privacy.” Unlikely any judge would see a room full of people, including wait staff, as a place one might reasonably expect that.
lamh35
Doesn’t the Romney camp pursuing this just keep it in the news forever! Not that it will ever been done, but keeping it going with prosecution seems to just keep it rolling
handy
While we’re at it, let’s send James O’Keefe to Gitmo.
handy
@lamh35:
The
StreisandRomneyPresidential Campaign In Full Meltdown Effect.different-church-lady
“Harry, tell ’em about the time you put the bug in the parakeet.”
@handy:
And turn him into a FDL hero? It’s not worth it.
FridayNext
I know that as student in Florida I was not able to record lectures or other classes without the permission of the instructor and everyone else in the class. Once during a writing seminar I wanted to record people’s comments about my paper, and was told I had to get everyone to agree. I thought they were joking and they looked at me like I was nuts that I would be so forward. I also know that when UF’s softball team was in the playoffs a year ago, theirs was the only dugout not miked because of concerns about the strict laws in Florida on this issue.
Not sure if this is dispositive, but the laws are supposed to be very strict in Florida and a lot of people are afraid of it. That having been said, I think Romney would look like a douche for enforcing it. After the R’s got so much mileage out of the gun clinging recording, they can hardly bitch.
On the other hand, I suspect this caterer won’t work for the Boca Billionaires for awhile.
Which reminds me of a story of when I worked at the wedding of Will Smith and Jada Pinkett and one of the valet parkers tried to sneak in a camera. Talk about the bum’s rush.
jl
@Steve:
Was the person who recorded it ‘permitted to hear it’? How did he/she, whoever, get in? Was it under false pretenses?
IANALADWTBO. BPHMOH.
Edit: IANAL and don’t want to be one, but please help me out here.
Seriously, how did the person get in?
jl
@lamh35:
Is Romney camp pursuing this? No way.
On the other hand, that approach has worked before. Not sure it has ever worked with such a bombshell that is all over the place within a day, though.
But, maybe, these hotshot Ivy League MBAs run through the decision tree and it’s go! They are decisive.
jwb
So are conservatives in meltdown over how this tape was illegal? I saw a blip about it on Twitter earlier today but really haven’t seen anything on it since that brief flurry. Like RC here, they seem much more eager to push the 14 year-old tape of Obama saying “redistribution.”
FridayNext
And for what it’s worth, it is not uncommon at large, rich events like this for all caterers and other companies who work for it to sign non-disclosure type agreements that they won’t do shit like this. Employees sometimes sign them separately if they are contractors or when they are hired if they are actual staff of the company. I’ll bet everyone involved in this event had to sign something like that and that there was, in fact, an expectation of privacy at the event. If they go after this person, who I understand was a server or something like that, they will probably wait until after election day, win or lose.
max
Theoretically, since Mitt Romney didn’t consent to the taping, the person who recorded the speech might be charged with a misdemeanor.
Bet they pursue it. They went after that lady who blew the whistle on the Lt. Gov.’s apparent lesbian affair with the paid staffer. This is an ex-Confederate state, so the way the law works is, if they want to get you they’ll do it, law be damned, and if they don’t want to get you you pretty much get away with anything but cold-blooded murder, and maybe even then. That said, if they go for a wide interpretation, I think a constitutional challenge is practically mandatory, particularly around the issue of expectation of privacy, free speech and copyright (if the state goes there).
Obama’s interview with Letterman was good. His answer on Libya was excellent.
max
[‘So I’m pleased.’]
handy
@different-church-lady:
James O’Keefe an FDL hero?
? Martin
@jl:
I’ll put money on it being someone hired to work the event like a bartender.
I’ll also put money that no minorities get hired to work Romney fundraisers from here on out.
KG
@jwb: i think they’re actually excited that Romney would say what he said… from what I’ve seen they think this is a winning argument.
Nancy Irving
Even in the Quiet Rooms, the walls have ears…
MikeJ
@Steve:
Precisely. They didn’t intercept the communication by leaving a phone in the room off the hook. The person doing the recording was authorized to be in the room and authorized to hear the communication. I don’t see anything in the law that says that recording something you are allowed to hear is illegal unless is is done remotely.
This wasn’t a phone call that was recorded. This was a speech the recorder was present at.
WaterGirl
@? Martin: I watched the video of Mitt’s press conference from last night, but it did not show Mitt walking out mid-question. I had googled for the video and hadn’t noticed that I was on National Review or some other republican website. Do we suppose they cut off the end so Mitt wouldn’t look bad?
I was surprised to see that an unedited video came out today. I thought they were deliberately editing it because otherwise it would reveal who had shot the video.
Little Boots
but really, john will be around.
oh, come on, john.
we do love you, even those of us that hate you.
? Martin
@WaterGirl:
No, they would never do such a thing.
GregB
Ann Romney is looking a little beaten down.
I am sure it is dawning on her that she might want to be a little leery of the help.
FridayNext
@max:
But it was a private affair, at a private house, and, I am just hypothocating here, I’ll bet everyone who worked this event had to sign some sort of non-disclosure agreement. I am pretty sure what this person did was against the law in Florida, but it is up to the courts obviously.
My bet is all R’s in Florida will wait until after the election before they do anything and they’ll try to do it quietly. As some one said up thread, they have no interest in keeping this in the news.
Remember this is Florida. No one does nuts like Florida.
different-church-lady
@FridayNext:
Couldn’t the taper just claim he was standing his ground?
Little Boots
only omnes can stop this.
i blame omnes.
WaterGirl
@? Martin: Yeah, I worded that poorly. Of course they did. Do you happen to have a good link to the video? Except that he was full of shit, I didn’t think Mitt came off too badly in the video, which was disappointing to me because his performance sounded pretty bad in the threads last night. I didn’t notice a red face or rumpled hair or anything.
Alison
@FridayNext: But what exactly would they do? We don’t know who the taper is, and Corn/MoJo would possibly refuse to name their source. Freedom of the press, confidentiality and all that. I mean…it would really end up being a big messy clusterfuck if they did try to go after them, and would just embed it all in everyone’s minds even more…
Violet
@WaterGirl: Are you talking about his press conference last night? Didn’t you think his hair looked weird? It always looks so perfectly set with gel or whatever, and last night it looked messy. Made Mitt look like he’d just sort of woken up or got dressed hastily or something.
freelancer
@different-church-lady:
COTY nominee.
MikeJ
@FridayNext:
Violating an NDA isn’t a crime, it’s a tort.
Little Boots
for johnnie:
http://www.youtube.com/watch?v=PFwZqE7AS_s
Little Boots
johnnie, you’re not allowed to leave your own blog.
so just accept it.
Ms. D. Ranged in AZ (formerly IrishGirl)
@Steve:
Actually depends on the state I believe. In FL both parties must agree to the recording. In other states only one party, usually the person recording it, has to give permission. I vaguely recall a case where someone in FL recorded a phone convo of Newt Gingrich and he/she got in trouble for it. Anyone else remember that case?
Little Boots
can we love the Band? I know omnes hates my music, but the band?
http://www.youtube.com/watch?v=sjCw3-YTffo
GregB
My FaceBook feed informs me that the most influential Libertarian in the entire universe has quit the party and is endorsing Mitt Romney.
This could be very big, seeing as Wayne Allen Root is such a household name!
I think I see the beginnings of the Romney/Koch/Rove batshit insane Glenn Beck, Pam Gellar kitchen sink strategy.
Peak Wingnut is approaching the event horizon.
From Root:
If Obama is re-elected on Nov. 6, you haven’t seen anything yet. His gloves will be off. He will be free to be his real radical self. Without ever having to face voters again, Obama will truly wreck this economy from sea to shining sea — just as Saul Alinsky, Cloward and Piven, Barack Obama Sr., Frank Marshall, Reverend Jeremiah Wright, Bill Ayers, and a host of other radical, Marxist, American-haters taught him.
jl
@? Martin:
” I’ll also put money that no minorities get hired to work Romney fundraisers from here on out. ”
You predicting another scgaffedal?
Ms. D. Ranged in AZ (formerly IrishGirl)
@Violet: There is pic of Mittens over at Sully’s blog, the daily recap post, and RMoney looks like shit…he’s sweating and stressed. It makes my day to see Mr. Goodhair feeling the results of his behavior, maybe for the first time in his life?
Little Boots
@Ms. D. Ranged in AZ (formerly IrishGirl):
doomed, I tells ya.
? Martin
@WaterGirl: This is the best I could find: http://www.mediaite.com/tv/mitt-romney-holds-shotgun-presser-on-hidden-video-47-remarks-not-elegantly-stated/
Little Boots
someome tell me what that song means.
Little Boots
omnes would know.
Yutsano
@Ms. D. Ranged in AZ (formerly IrishGirl): WA is also a strict two party state, although I don’t know what the penalty is for violation. I do believe it is a crime.
Little Boots
johnnie,you suck if you will not chime in, here.
Mark S.
@GregB:
Frank Marshall, the chess player? Maybe that’s how Obama learned to play that 11-dimensional chess.
Little Boots
no omnes.
GregB
@Mark S.:
Chess divides people into two teams by race!
Little Boots
for greg:
http://www.youtube.com/watch?v=P9mwELXPGbA
Little Boots
johnnie, really, you don’t want this whole thing?
oh, come on.
Mark S.
@GregB:
Also, it teaches pawns that if they work really hard they might get promoted to Ann Romney.
Little Boots
is anyone buying this crap?
eemom
No it’s not. First of all, wiretapping by definition is by a THIRD party. Secondly, in many states it is perfectly acceptable to record a conversation with the consent of only one of the participants.
Probly a good thing you quit that day job. : )
Little Boots
miss ommes/
Mark S.
Jesus, Slate never fails to disappoint:
That’s more or less what the column says.
Non Violent Taekwondo Trooper
Is this the new RW blogger jihad?– I thought the MoneyBooBoo campaign was owning this.
Rita R.
Wait, what about FREEDOM!!! The wingnut choir has just proclaimed that Obama has turned America into Nazi Germany because anti-Islam film guy (Nakoula) was taken in for questioning for possible violations of his parole, saying it’s just cover and that he’s really being persecuted for exercising his right to free speech. I wonder if the same people will be defending whoever filmed this and condemning the jackbooted thugs persecuting him for the content of his material.
Also too, Romney’s camp would be insane to pursue this.
And following on what someone else said above, if this person is prosecuted, I want James O’Keefe brought up on charges for the incident with CNN’s Abbie Boudreau in which he planned to either carry out a sexual assault or film some kind of consensual encounter without her knowledge or permission.
Rita R.
@Mark S.:
See that’s the problem with Mitt — he’s said so many different things to so many different people at so many different times going back years that no-one knows what he really believes. I honestly don’t. The Villagers keep pushing this idea that he’s really a moderate at heart and will govern that way because that’s what they want to think is true, but I have absolutely no confidence that’s the case. Whatever he actually does believe — and we may never know because I don’t think Romney knows that himself — he’s going to govern the way the gone-off-a-cliff Republican Party wants him too.
Cacti
OT – but I think peak wingnut approacheth
Pat Buchanan has traded in his dog whistles for an air horn.
Calls the POTUS a “Drug dealer of Welfare.”
Little Boots
i still think omnes hast to show up, dammit.
Alison
@Cacti: Holy fuck.
Hey, God? I would never wish for anyone’s demise, but…I mean…you think you could get around to calling this asshole home some time soon? Please? We’re long since done with him here…
Ugh.
e.a.f.
If the state of Florida has so much time & money they can waste it on “prosecuting” someone who took a “video” of a fund raising speech, good on them. I expect the citizens can look forward to getting tax rebates.
Romney is a public figure. He is running for President. What he says & does Is important to all Americans. When you run for President, one thing you give up is privacy. They want your tax records, your medical records, etc.
Any candidate for public office who doesn’t want to be “taped” had better find another line of work.
Mark S.
@Rita R.:
I think what he said at the fundraiser is what he actually believes. He was with his “people”, fellow asshole millionaires, and felt he could let loose with what he really thinks.
He also apparently thinks he got where he is entirely by his own efforts and his life would be easier if he were Mexican. He doesn’t have a lot of self-awareness, as one can see by his campaign.
Steve
@Ms. D. Ranged in AZ (formerly IrishGirl): There’s actually two different legal issues. The first is whether you’re allowed to listen to a given conversation at all. Assuming you are (heck, you might be one of the people talking), the second is whether you can record it.
Imani Gandy (ABL)
@eemom: That’s not what the statute says.
ETA: i get what you’re saying as to “wiretapping” in a general sense, but the florida wiretapping/recording law does not require a third party.
? Martin
@Mark S.: Two of my staff are Latino – first generation. Their parents were successful in Mexico and were able to immigrate, but lost their status when they got here – jobs were much lower status, struggled to get established, etc. One, about half of her family is Mormon, and she’s a single mom with 2 kids. She doesn’t pay income tax, but she’s working her way up (making decent money now, actually). The other is single, younger, just getting going again after being laid off. No way she pays income taxes either and drew unemployment for about a month or two.
We were talking about this at lunch today and I cannot put in words how hurt they were by this. Mitts comments weren’t anything they haven’t heard a million times before, but there’s a big difference between some random asshole you overhear at the grocery store and a person selected by about half the country as their representative spouting off about this – and then not a few other public figures backing him up on those statements. The random assholes will always exist, but if we can’t filter out the folks in power, then it seems hopeless.
They were going to vote for Obama, but they’re sounding pretty motivated to help get other latinos out to vote.
Yutsano
@Cacti: Peak Wingnut is a lie. The goalposts keep getting shifted on us every time we think we’re close.
Djur
@eemom: Are you capable of being pleasant to anyone? Or do you spit at your own face in the mirror every morning out of reflex?
amk
After all, he is running for prezinent, ferchrissake, Imani.
Let him and that convicted FL felon bring it on.
The prophet Nostradumbass
@Djur: I gotta wonder why someone who thinks all of the FPers suck continues to read and comment here.
Triassic Sands
They should schedule the trial for January 20, 2013; I have a sneaking suspicion Romney will be available to testify that day. And he certainly shouldn’t need to be in DC.
pablo
Eric Holder may be interested in this. He seems to have time on his hands.
Another face in the crowd
@FridayNext: “No one does nuts like Florida.”. Bumper sticker with a picture of Governor Smegal (sp.) on it?
bjacques
I’d say the Mittster and his buddies had a run in with the Fight Club. In the world they think they want, the 47% (more like 99%) “…cook your meals, we haul your trash, we connect your calls, we drive your ambulances. We guard you while you sleep.”
They shouldn’t be surprised when one of the minions takes a little revenge given the opportunity.
They’re lucky the waiters didn’t also season the lobster bisque, fart on the meringue, sneeze on braised endive, and as for the cream of mushroom soup, well…
FridayNext
@MikeJ:
Agreed. But people were bringing up the expectation of privacy. I am no lawyer. But it seems to me if everyone involved in an event is required to sign an NDA at a private event, on private property, at an event that is explicitly off the record, it seems to me everyone involved can legitimately claim they had a high expectation of privacy and/or there was no permission to record and as someone up thread pointed out in Florida, all parties to a recorded conversation must consent. It seems to me, as a non-lawyer, that there is a strong possibly this person broke the law to make this recording as I understand the law in the state I lived in for 6 years. But so what. A lot of my heroes were law breakers to some extent. I think this person should, if accused and tried, should plead a good, solid, Thoreau-esque guilty and shout from dock “I regret I have but one life to live for my country.” That’s what Linda Tripp should have done when she was tried for the same thing in the 90’s for a very similar law-breaking instead her “everyone’s picking on me” defense.
Again, regardless of whether this person actually committed a crime, expect Florida Republicans to investigate it. They may even do so before the election whether Romney wants to or not. They don’t care, they don’t like the man and they are nasty pieces of work. Have you not met Rick Scott, Katherine Harris, or Allan West? This is how they do in America’s Schlong.
Zach
Florida is an all-party consent state for recording oral communications, but there’s at least one case in which it was found that there’s no reasonable expectation for privacy in a conference call for a company’s management committee. Unless the attendees and waitstaff were informed that this was confidential and could not be recorded, there’s less of an expectation for privacy here, so it’s certainly legal.
HeartlandLiberal
So, just like the authorities went after Andrew Breitbart and his cronies, they will go after whoever made this video with the full force of the law?
Am I right? Do I have the context right?
Of course I urge the GOP to force an investigation. Why? Because that will absolutely insure that the content of the video stays front and center in the campaign for every last ***** day of the next two months until election day.
Manna from Heaven.
victory
Linda Tripp is unimpressed.
Lee
I guess I don’t get out much, but the one thing that sticks out to me is that Romney asked not to be recorded.
Isn’t that an indication that what he was about to say was going to be offensive to a significant percentage of the US? Or is that standard procedure with politicians?
If I had been there I would have asked why he did not want to be recorded. Because he does not actually believe what he just got thru saying or because he actually believes it and understands it would ruin his chances of winning.
burnspbesq
Easy motion to dismiss. It was not reasonable for Mitt to believe that his oral communication was not subject to interception. I would also throw in some sanctimonious “public’s right to know” bullshit just to preserve a First Amendment issue for a potential appeal.
blondie
@Nancy Irving: That’s just what I was thinking, Mitt likes to save the depth of his contempt for the little people for discussions in quiet rooms, where the supermen can come to agreement on plans for the future.
Interesting split in the GOP between those who want him to double-down the moocher talk and the political operatives trying to tug him back toward humanity. Admitting you think the poor deserve to starve makes you so much less inspirational as a leader.
Mitt doesn’t think Oliver Twist deserved the first bowl.
Mitt thinks the pre-revelation Scrooge was a patsy.
WaterGirl
@? Martin: Thanks, Martin! Now I see what you meant.
@Violet: You’re both right about the wild hair. I just didn’t see it until I enlarged the video screen.
YellowJournalism
@Yutsano: From what I remember in my courses at Wazzu, it’s jail time and fines. People had fun with the fact that you could go into Moscow and have more freedom to record.
danah gaz
The bottom line is that the video is out there. How it was obtained really doesn’t mean much, other than the source is probably right to insist on anonymity.
Journos protect their sources for a reason. Anonymous sources exist for a reason.
Just for fun, I’ll bring James O’Keefe into this. He got himself in to trouble for attempting something similar. (The fact that he’s a mendacious asshole really doesn’t come into play here)
The moral of this story is, don’t get caught.
Free press 101
johnny aquitard
@Alison:
They will go after the guy.
These are the 1%, and they will need to burn this guy to a cinder because he’s the hired help, a servant. Rich people cannot let their servants get the idea they can go around recording them whenever they say something ugly, especially when that ugly something smacks of class war.
The rich have been waging class warfare for decades on us, and one uppity servant fought back — and did it practically in their own living room. Yes they will want this guy. Gotta show all You People you just can’t do this to the masters of the universe.
stratplayer
@MikeJ:
It’s neither. It’s a breach of contract.
stratplayer
A politician running for President of the United States has exactly zero reasonable expectation of privacy in his political utterances made in a plainly political context. The voters have an absolute right to know what someone seeking such enormous power says behind closed doors to his or her financial backers concerning public issues. There should be no such concept as a “private” political fundraiser given the stakes involved. Totally fair game. I don’t think this is even a close call.