Left-wing magazine Mother Jones made news this week with a report based on a secret recording of a Feb. 2 meeting of Senate Republican leader Mitch McConnell with campaign strategists. Federal and state law prohibits publication of information acquired through secret recording, but a 2001 Supreme Court ruling gives publishers like Mother Jones a get-out-of-jail-free card.
But whoever taped the private conversation can’t wiggle off the hook so easily. Whoever bugged the meeting room or secretly placed a recording device will be in serious legal trouble — unless he or she was one of the strategists.
Both state and federal laws apply to the secret recording of oral communications. Title III of The Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §2511) makes it a federal crime to intentionally intercept “any wire, oral, or electronic communication.” Intercept is defined as using “any electronic, mechanical, or other device” to record anyone’s words, if the speaker has a justified “expectation that such communication is not subject to interception.”
Whoever recorded the private strategy session appears to have run afoul of this law. Sen. McConnell and his campaign advisors certainly had a reasonable expectation of privacy in their meeting at McConnell’s campaign headquarters in Kentucky. And given that Mother Jones has a recording, there is no doubt that a recording device intercepted the conversation. Whoever made the recoding is facing the very real prospect of fines and up to five years in prison.
The same federal statute also makes it illegal for anyone to intentionally use “the contents of any wire, oral, or electronic communication” if they knew or had reason to know that the “information was obtained” through an interception that violates federal law. But in Bartnicki v. Vopper, a 2001 case that arose when a radio talk show host aired an unlawfully recorded cell phone call, the Supreme Court held that this provision violated the First Amendment. The court’s reasoning: If a publisher lawfully obtains information from a source who acquired the information unlawfully, the source’s illegal conduct is not sufficient to remove the publisher’s First Amendment right to disclose information about matters of public concern.
The federal law stipulates that it is not a violation if a “party to the communication” made the recording. So the key question in any criminal investigation will be whether one of the aides in the strategy session voluntarily made the recording or if it was made by someone not in the room.
The statute provides that anyone whose communications are illegally intercepted can recover civil damages. Rep. Jim McDermott (D-Wash) learned this the hard way, when House Speaker John Boehner successfully sued him for disclosing a Boehner-Newt Gingrich cell phone conversation that had been illegally recorded by a Democratic activist. So if an investigation into the Kentucky wiretapping uncovers the source, that person will be subject to a civil suit in addition to a criminal prosecution.
Kentucky’s statute (§ 526.010) making eavesdropping illegal, also includes recording conversations. A second state statute (§ 526.060) applies to anyone who “knowingly uses or divulges information obtained through eavesdropping.” As with federal law, it is not a violation of the state statute if one party involved in the conversation consents to the recording. So just like the federal prosecutors looking at this incident, the key question for state prosecutors will be whether the recording was made by someone in the room at the time of the discussion. If not, then the secret recorder could be found in violation of state law. The Bartnicki case, however, would prevent Kentucky from prosecuting Mother Jones.
News reports indicate that the FBI is investigating and that the U.S. Attorney’s Office in Louisville has also been notified. But we won’t know if the applicable federal and state laws were, in fact, violated, until we know who made the recording.
-Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
First appeared in PJ Media.