ACORN v. O’Keefe and Public v. Private

I previously outlined some of the problems I saw with ACORN’s lawsuit against James O’Keefe, Hannah Giles, and Andrew Breitbart, but there seems to be a lot of confusion over whether the conversation O’Keefe and Giles had with ACORN employees Tonja Thompson and Shera Williams was ‘private’ within the meaning of the Maryland wiretap statutes.  Some commentators, like Leon Wolf in this RedState piece (h/t HotAir), argue that it was not — based solely on the fact that it occurred in a public setting.

By Wolf’s logic, any conversation that does not occur within the privacy of your own home with people you know and trust, is not a ‘private’ conversation.  I respectfully disagree.

Wolf, and the others making this argument, are correct that Maryland analyzes whether a conversation is private in much the same way that it looks at the ‘reasonable expectation of privacy’ in the Fourth Amendment search and seizure context.

In Katz v. U.S., the U.S. Supreme Court stated a two part-test for determining whether someone had a reasonable expectation of privacy:  First, there must be an actual, subjective expectation of privacy in the subject (here, the conversation); and second, that expectation must be “one that society is prepared to recognize as ‘reasonable.’”  U.S. v. Katz, 389 U.S. 347, 361 (1967).

The contents of the conversation are not relevant to the Katz inquiry, because they cannot be known until after the fact. For example, it is clearly not the law that police need a warrant to listen to you in your own home . . . unless you’re talking about a crime.  Regardless of the subject matter, a conversation under specific circumstances is either private or not, regardless of what is discussed.

In Malpas v. State, the case cited by Wolf, Maryland applied Katz to its wiretap statute.  In the Malpas case, the defendant introduced a tape-recorded conversation of a telephone conversation with the victim, Craigie.  The two lived in adjacent units of a duplex, and during the conversation Craigie was shouting so loudly that he could be heard through the dividing wall of the duplex.  In analyzing whether Malpas’s recording of the conversation violated the wiretap statute, and was thus inadmissiable, the court stated:

It is obvious that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. At 351, 88 S.Ct. at 511. Craigie could have no expectation of privacy in statements made in his apartment that were shouted so loudly as to be overheard by persons in the adjacent apartment. We do recognize that the “very fact that a person is in his own home raises a reasonable inference that he intends to have privacy, and if that inference is borne out by his actions, society is prepared to recognize his privacy.” United States v. Taborda, 635 F.2d 131, 138 (2d Cir. 1980). In this case, however, what Craigie chose to shout could not have been intended as words spoken in private.

It is a mistake to seize upon the first sentence of that paragraph as meaning that someone having a conversation with strangers (O’Keefe and Giles) in a public place (the ACORN office) could not have a reasonable expectation of privacy in that conversation.  I think Wolf’s main error in reaching his conclusion is in treating O’Keefe and Giles as third-parties to the conversation.

If they had walked in and heard Thompson and Williams talking, that would be a different issue.  But O’Keefe and Giles were parties to the conversation, and in fact initiated it.  Looking at this under the Katz framework, Thompson and Williams clearly had a subjective expectation of privacy — assuming, that is, that they would not have said what they did if they knew they were being taped, which I think is a safe assumption.  I also think that such an expectation is objectively reasonable, because that expectation does not depend on who is doing the recording or what was said.  Looking at it another way, if a police officer hiding in the bushes recorded the conversation, rather than the fake pimp and prostitute, would he have needed to get a warrant to do so?  I think the answer is clearly yes.

If you are talking on a crowded bus, or shouting so loud that the neighbors can hear you outside your house (as in Malpas), then it is not reasonable to expect that conversation to be private.  But if you are in someone’s office discussing taxes and mortgages, the mere fact that the office is in a publicly-accessible building does not make it unreasonable to expect that conversation to remain private.

All of that said, as commenter PaulD pointed out in the previous thread, there are sound and compelling public-policy reasons to refuse to allow ACORN, Thompson and Williams to treat this conversation as ‘private’ within the meaning of the statute:

There is a highly protected right of confidentiality in communications made between an attorney and a client called the attorney/client privilege. However, even “attorney/client privilege does not protect confidentiality when a client is seeking advice on how to break the law or when an attorney is giving such advice. This expresses a strong public policy that such conversations and advice should not be protected. If such criminal conversations between an attorney and a client are not protected, it seems reasonable that similar conversations between ACORN and the prostitute and pimp should not be protected as a matter of public policy.

Whistle-blower and similar laws also reveal a strong public policy in favor of revealing criminal activity.

PaulD also points that that if one or both of the employees had a duty to report suspected criminal activity — based on either ACORN policy or federal or state law — then that duty would trump any expectation of privacy.

However, just because public policy or specific facts of this case may prevent the conversation from being considered ‘private,’ arguing that it was not private simply because it took place in a office is deeply flawed.

UPDATE:

Leon Wolf has posted A Response to some Hot Air commenters, in which he points out that he has “litigated federal Wiretap Act cases, which makes me more informed than the average person (or even lawyer) to comment, especially since the Maryland Act is pretty clearly modeled after its Federal counterpart.”

Given that, I may be completely off base with my arguments, but would like to see some case law in support of his contentions before I decide.

UPDATE (9/24/09):

Leon Wolf again responds, this time to Ace’s post which discusses this one, and I recommend reading the whole thing.  I understand his point much better now, but still don’t agree that this is the slam dunk he portrays it as — but, again, he is apparently much more of an expert in this area than I am.  I would agree that there is no expectation of privacy in a the part of an office or business where the public may just walk in at any time, such as the reception area, but my understanding is that this took place in a conference room, or similar, where there would be no public access.  That may not make a difference under the law Wolf is discussing, but I think that, at the least, it should — if I’m in an office that is separate from the public area, I don’t see a distinction between discussing personal matters on the phone or speaking to a client in the office with me from a reasonable-expectation-of-privacy standpoint (as to my half of the phone conversation).