MD could charge filmmaker who made ACORN video?
I was reading a Fox News article that included various legal experts debating whether ACORN officials involved in the now infamous video with filmmaker James O’Keefe and a woman portraying a pimp and a prostitute. I really didn’t see much that got my attention in the debate over whether the ACORN officials could be charged with conspiracy or facilitation to commit tax evasion or any of the other charges related to prostitution or the underage child prostitutes discussed in the videos.
What did get my attention was this:
Whether or not prosecutors charge any ACORN officials in Baltimore, the filmmaker himself could be in hot water.
A Maryland state statute requires consent from all parties whenever a conversation is taped, according to the Reporters Committee for Freedom of the Press. Violations of the law are punishable by a maximum of five years in jail and a fine up to $10,000.
But that statute does not apply to videotape recordings — only to phone calls or other electronic “communications,” Napolitano argued — meaning the filmmaker is likely in the clear.
The Napolitano quoted in the piece is Fox News legal expert Andrew Napolitano. I’m not sure that the law isn’t vague enough that some Democrat in the Maryland legal system might try to bring charges against O’Keefe. I’m sure the “communications” part of it could be used to justify charges if the right person wanted to bring them.
One thing to consider, charges against ACORN have been filed in Baltimore before when the group broke into houses that had been foreclosed upon.
Apparently, a caller to Rush Limbaugh today discussed the possibility that O’Keefe could be prosecuted:
CALLER: I want to know if you know who’s going to be prosecuted in that ACORN undercover business that just went on in Baltimore.
RUSH: Well, I don’t know.
CALLER: The guy who recorded because it’s illegal in Maryland to record someone without their knowledge, remember Linda Tripp?
RUSH: No, no, no, no, wait just a second now, wait just a second now, wait a second, wait a second, have you watched it?
CALLER: Yeah, I saw it on Fox this morning.
RUSH: All right, that’s what 60 Minutes used to do. That’s the exact kind of stuff that 60 Minutes used to do, the old hidden camera trick.
CALLER: But they can’t do it in Maryland.
RUSH: Well, we’ll see.
CALLER: Linda Tripp was the only one that got — I don’t want to use the bad word — but got prosecuted or got in trouble or whatever, but that whole Clinton thing, she was the one that had her head left out.
RUSH: Well, I must confess, you may be right about phone calls. I don’t know what the law in Maryland is on cameras, hidden cameras. I know you would assume it’s the same thing. But I don’t care. If Mr. O’Keefe gets charged, fine and dandy, I’m sure he’s willing to put up with it because the video is out there. The story has been told. I mean ACORN can run but they can’t hide.
I do recall hidden camera interviews or investigations involving local news reporters in Maryland. Most of the ones I’ve seen were probably the I-Team and Jayne Miller on WBAL TV.
Here’s discussion on the law in question from the Reporters Committee for Freedom of the Press:
Under Maryland’s Wiretapping and Electronic Surveillance Act, it is unlawful to tape record a conversation without the permission of all the parties. See Bodoy v. North Arundel Hosp., 945 F.Supp. 890 (D. Md. 1996). Additionally, recording with criminal or tortuous purpose is illegal, regardless of consent. Md. Code Ann., Cts. & Jud. Proc. § 10-402.
Disclosing the contents of intercepted communications with reason to know they were obtained unlawfully is a crime as well.
Violations of the law are felonies punishable by imprisonment for not more than five years and a fine of not more than $10,000. Civil liability for violations can include the greater of actual damages, $100 a day for each day of violation or $1,000, along with punitive damages, attorney fees and litigation costs. To recover civil damages, however, a plaintiff must prove that the defendant knew it was illegal to tape the communication without consent from all participants. MD. Code Ann., Cts. & Jud. Proc. § 10-410.
State courts have interpreted the laws to protect communications only when the parties have a reasonable expectation of privacy, and thus, where a person in a private apartment was speaking so loudly that residents of an adjoining apartment could hear without any sound enhancing device, recording without the speaker’s consent did not violate the wiretapping law. Malpas v. Maryland, 695 A.2d 588 (Md. Ct. Spec. App. 1997); see also Benford v. American Broadcasting Co., 649 F. Supp. 9 (D. Md. 1986) (salesman’s presentation in stranger’s home not assumed to carry expectation of privacy).
The Court of Special Appeals of Maryland held that because states are at liberty to adopt more restrictive provisions than those contained in federal law, the secretary-treasurer of a local union who recorded conversations between himself and management representatives could still be prosecuted under the state statute, even if his conduct was arguably protected under the National Labor Relations Act. Petric v. State, 504 A.2d 1168 (Md. Ct. Spec. App. 1986).
It is a misdemeanor to use a hidden camera in a bathroom or dressing room. It is also a misdemeanor to use a hidden camera on private property “for purposes of conducting deliberate, surreptitious observation of a person inside the private residence,” or in a private place with “prurient intent.” Md. Crim. Law §§ 3-901, -902, -903. A person who is viewed in violation of these statutes has a civil cause of action. The court may award actual damages and reasonable attorney fees. A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding one year or a fine not exceeding $2,500 or both.
What’s your opinion?
18 Comments »
RSS feed for comments on this post. TrackBack URL
1
[...] no word on whether charges could be filed against the ACORN employees or the filmmaker who made the [...]
Pingback by Baltimore ACORN office fires employees | Inside Charm City: Baltimore, Maryland blog — September 10, 2009 @ 7:04 pm
2
Probably they could be charged under invasion of privacy. My musty recollection of what we were told as journalists by the MDDC press association’s hotline libel lawyer was that taking a camera into a private property to record people without their consent invaded the “reasonable expectation of privacy” that most people enjoy in their place of employment.
THerefore, the filmmaker and his “actors” could be charged, and my understanding is the courts have not been kind to journalists in the last 10-20 years in hidden camera scenarios. That said, we published a hidden camera video provided by Baltimore County.
http://www.youtube.com/watch?v=BnCq-gOzGBg
However this was in a public space. Slightly different law applies.
Comment by Karl Hille — September 10, 2009 @ 9:11 pm
3
[...] In the comments below the post, Green also replies to a commenter that he believes ACORN is looking at the possibility of the state filing charges against O’Keefe and Miles for …. [...]
Pingback by Baltimore Sun editorial board member defends ACORN | Inside Charm City: Baltimore, Maryland blog — September 11, 2009 @ 11:41 am
4
I’m not so sure that the ACORN people have any expectation of privacy. The people who come to ACORN most likely do, and the ACORN staff almost certainly has a duty to protect those communications. But I don’t see where ACORN staff have any expectation or privacy with respect to the services they are providing to the public.
Much like attorney-client privilege, if the client decides to breach the privacy of the conversation, I don’t believe there is anything that ACORN can do about it.
Furthermore, I’m not so sure that there is ever an expectation of privacy where criminal activities are being planned, but I may be wrong about that.
Comment by MichaelW — September 11, 2009 @ 12:54 pm
5
ACORN would be SO stupid to file charges against the camera crew in this Internet age. It’s how you turn a small story into a BIG story (not that this story seems small!).
Comment by Scott W. Somerville — September 11, 2009 @ 3:03 pm
6
Perfect case for Jury Nullification methinks. This man has just unearthed a crime ring by uncovering ACORN and they’re prosecuting him?
They should give him a reward for this, if not at least a very kind ‘thank you’. This is a case (I believe) of criminals hiding against the law to justify their own crimes. If anything, the Maryland State police, the local cops, and the FBI should be raiding ACORN’s offices and see how many times this has happened.
Comment by Chaz — September 11, 2009 @ 8:52 pm
7
[...] we predicted, state may prosecute filmmaker who made ACORN video I was the first blogger to mention this as a possibility yesterday. STATEMENT OF STATE’S ATTORNEYS OFFICE FOR BALTIMORE CITY RELATIVE TO THE ALLEGED [...]
Pingback by As we predicted, state may prosecute filmmaker who made ACORN video | Inside Charm City: Baltimore, Maryland blog — September 11, 2009 @ 8:53 pm
8
“It is a misdemeanor to use a hidden camera in a bathroom or dressing room.
It is also a misdemeanor to use a hidden camera on private property “for purposes of conducting deliberate, surreptitious observation of a person inside the private residence,” or in a private place with “prurient intent.”
Md. Crim. Law §§ 3-901, -902, -903. A person who is viewed in violation of these statutes has a civil cause of action.
The court may award actual damages and reasonable attorney fees.
A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding one year or a fine not exceeding $2,500 or both.”
This is about peeping Tom’s.
It’s not a “private residence”, ACORN is publicly funded, and their building is our building.
“prurient intent”
“: marked by or arousing an immoderate or unwholesome interest or desire; especially : marked by, arousing, or appealing to sexual desire”
Unless the DA wants to explain why he gets a woody when talking about 13 year-old prostitutes, child sex slavery, why that “turns him on” I don’t think the prurient intent applies.
Comment by Dschoen — September 11, 2009 @ 10:03 pm
9
Most likely, ACORN would not be the one who brings charges. However, I disagree with the claim that their building is our building. If this were done in the common areas of an office building, where there is surveillance and often notices posted, I could see that point.
As for raiding offices, if this tape is the sole reason why it is done, ACORN would likely successfully get all of the evidence quashed, as this is likely not admissible as probable cause in Maryland.
NOTE: I am not a lawyer. Nor does this condone ACORN’s actions.
Comment by Adam — September 12, 2009 @ 11:45 am
10
She’s more likely to prosecute because these people were doing her job, and apparently much better than she is capable of doing it. And then there’s the whole “in the tank for Obama” thing, since he is soo intimately connected to ACORN.
Comment by Charlie — September 12, 2009 @ 1:07 pm
11
[...] description of her sexual encounter with President Bill Clinton. And, as the Baltimore blog Inside Charm City noted, this particular ACORN office has previously been in hot water for apparent illegal [...]
Pingback by Maryland May Prosecute ACORN Sting Video Makers « Prayer, News & Action — September 12, 2009 @ 3:49 pm
12
Obama will represent ACORN again.
Comment by VeganConservative — September 12, 2009 @ 5:27 pm
13
“This man has just unearthed a crime ring”
are you kidding, chaz? whatever this may be (me: i happen to believe it’s four lousy people talking to each other), you are wildly overstating the case if you think this video exposed a “crime ring.”
Comment by proudhon — September 13, 2009 @ 1:24 am
14
Remembering the movie “Chinatown” let’s just say “It’s Baltimore Jake, it’s Baltimore.”
Comment by Jasperbob — September 14, 2009 @ 11:45 am
15
O’keefe will not be prosecuted…if he is, he will not be convicted…and here is why…First of all, Linda Tripp was not convicted for these reasons stated in this comment…Maryland is run by democrats and the prosecuter in this case is a democrat, so she might be dumb enough to prosecute because of her liberal biased motives, but it will be malicious prosecution on her part and she might be disbarred if she does (i.e. duke lacrosse d.a.). Also it will be very expensive for them to prosectute it and in the end they will lose. This is the IMPORTANT part… the Maryland law/statute does not prohibit/outlaw taperecording…the Md. Law/statute does not even mention tape recording as something that is prohibited…if anything it allows it when it says “[oral communication] authorized by this chapter SHALL, if possible, be RECORDED ON TAPE” (emphasis added) (read it yourself)…the statute states the it is illegal to “intercept” a communication, it is not illegal to “taperecord” a communication. Because the ACORN employees “knew” they were talking to O’keefe and Giles, they implicitly consented to that communication (as several court cases will support). It is a fact that both the Maryland law and federal law make a distinction between “taperecording” and the “intercepting” of “communications” [refer to 18 U.S.C. & 2518(8)(a)]. Bottom line: the very liberal pro-Obama prosecutor might decide to prosecute O’keefe and Giles, but they will definitely lose and it will cost the prosecution a lot of money…plus, Okeefe/Giles can sue Maryland for malicious prosecution.
Comment by robert — September 14, 2009 @ 7:07 pm
16
A woman in Florida was charged with the same charge, 3 felonies, facing 15 years, for taking a video of her ex-boyfriend, a criminal judge, while he was on a public beach talking about women’s breasts and posting it on YouTube. She was denied bond, spent 83 days in jail before pleading to a misdemeanor just to get out of jail. Her public defender neglected to tell her the whole time she was the judge’s once divorce attorney. http://www.palmbeachpost.com/news/content/local_news/epaper/2008/10/15/a8b_wennetsuit_1016.html?cxntlid=inform_sr
Comment by umami — September 14, 2009 @ 11:30 pm
17
#15 robert is absolutely correct. The state of Maryland doesn’t have a case. They are just posturing. This all comes down to the left wing politicians that represent Maryland trying to protect their corrupt interests in ACORN.
Comment by Rob — September 15, 2009 @ 6:43 pm
18
[...] description of her sexual encounter with President Bill Clinton. And, as the Baltimore blog Inside Charm City noted, this particular ACORN office has previously been in hot water for apparent illegal [...]
Pingback by Maryland May Prosecute ACORN Sting Video Makers | Covert Surveillance News — September 17, 2009 @ 7:51 pm