Yesterday, ACORN and two of its employees exhibited unabashed gumption by suing the “pimp” and the “prostitute” who brought the organization to its knees. To be precise, the plaintiffs rely on Maryland’s wiretap statute to sue James O’Keefe III, Hannah Giles, and Breitbart.Com LLC, for the video recordings which revealed ACORN’s willing assistance and counsel on establishing a brothel which would feature underage girls trafficked from El Salvador. The lawsuit should fail because it attempts to misapply the wiretap statute to the legal recording of a non-protected conversation.
The Maryland wiretap statute prohibits the willful interception of any wire, oral, or electronic communication. However, by its own terms, the statute only applies to private conversations. It also permits the recording of conversations when all of the parties to it consent. The statute defines intercept 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.” Md. Code Ann., Cts. & Jud. Proc. sec. 10-401(3).
The defendants here did not break Maryland’s wiretap statute because they did not record a “private conversation.” The wiretap statute limits the phrase “oral communication” to those conversations or words spoken to or by any person in private conversation. Sec. 10-401(2)(i). The video reflects that the conversation took place in a conference room whose door remained open throughout the conversation. In addition, voices of non-parties to the conversation (including children) can be heard throughout the video, indicating that the conversation can be heard by non-participants. This conversation is clearly not private, and therefore not protected by the wiretap statute.
In addition, the “pimp” and the “prostitute” did not break the law because all parties to the conversation consented to the acquisition of the contents of the conversation. Under section 10-402(c)(3) of the Maryland wiretap statute, it is perfectly lawful for a person to intercept an oral communication when that person is a party to the conversation and all of the parties to the communication have consented to its interception. Because of the breadth of the defined terms “intercept” and “device” in section 10-401, it includes the acquisition of the contents of a conversation through the use of any device, including a pen and paper. One of the ACORN employees can clearly be seen in the video with a pen and paper for note-taking, i.e., for recordation of the contents of the conversation. Consent to that recordation happened when no one objected to the presence of the pen and paper for note-taking. The ACORN employees’ lack of awareness that O’Keefe and Giles were using their own secret (and more accurate) recording device is immaterial once there was consent to the first method of recordation.
Because the conversation of ACORN representatives was not private, and because the plaintiffs themselves consented to its recordation, the videotaping of the conversation by O’Keefe and Giles was entirely lawful. The lawsuit should be summarily dismissed and ACORN should cease its dishonorable recrimination.
– Darin Bartram is a partner at Baker Hostetler, LLP.