A Tale of Two Stings

 

Two takes are making the rounds of the blogosphere regarding the indictment of two journalists for recording Planned Parenthood organized crime suspects without their consent. California-pro-life-journalists-felony-counts-planned-parenthood-videosThere is an attempt to conflate the actions of animal rights activists and their use of undercover videos California-is-fine-with-undercover-sting-videos-that-expose-animal-crueltyThose that know the law understand that the two actions, other than the use of a video camera, bear no resemblance one to the other.

Under the law, there is a world of difference between capturing an image without permission and capturing a conversation. The law varies from state to state. In Texas, for example, if one party consents to the recording then the action is legal. In California, both parties have to consent to the recording; this precludes covert recording.

There is no protection against an image being captured and recorded in a public place. This would seem to be inconsistent, but it is not. Here is an example: John and Jim walk out to the end of the Santa Monica pier at noon and sit down on a bench. The fishermen on the pier along with the tourists walking around can see them. Surfers using the pier as a point break can see them. They guy towing the banner in the plane overhead can see them. John and Jim have “no reasonable expectation of privacy” that their meeting will go unobserved. It may be unremarked, in that nobody cares, but the meeting was observed.

If John and Jim carry on a conversation in normal tones and there is nobody within ten yards of them; do they have a reasonable expectation of privacy? At what point does that “reasonable expectation of privacy” erode? Is it ten feet, six feet, two feet, or is it when John jumps up and starts shouting at Jim. Is the reasonable expectation of privacy in a crowded restaurant with tables three feet apart the same as that afforded John and Jim at the end of the Santa Monica pier?

That is the burden that the prosecution must overcome, did the doctor felon have a reasonable expectation of privacy in a crowded restaurant with waiters and busboys intruding during the meal? It isn’t necessary to prove that the conversation was overheard, just that the particular circumstances would persuade a “reasonable person” that privacy was not possible. If the defense can do that, then the charges cannot be proved, and the contents of the tapes can be used.

Don’t get bogged down worrying about what type of device is used to record events. The key is “reasonable expectation of privacy.” This is why video surveillance has taken off. Walk down the street, go into a store, or pick your nose; there is no telling how many people watched as you went about your affairs. The second article dealing with animal cruelty tries to match it lock step with the pro-life video. If you watch the two, there is no overlap.

The animal cruelty video shows events as they unfold. The visual is accompanied by a breathless narration about the unspeakable cruelty going on. I suspect that many of these videos if they are shown in court, are shown with the audio off. The captured images speak for themselves. If one is legally in a position to see what the video captures, there is no requirement to look away. The recording captures no conversations that would trigger one’s “reasonable expectation of privacy.”

Unfortunately, if the pro-life people want to have the impact of the animal rights undercover videos they are going to have to go inside an abortion clinic and film a doctor strangling a fetus.