Republicans are sufficiently outraged by the leaked recording of one of Senate Minority Leader Mitch McConnell’s private re-election strategy sessions that they’ve characterized it as a crime. But according to privacy law experts, and legal experts in Kentucky, the question of whether the person who recorded the meeting committed a crime turns entirely on whether he or she was an invited participant.
McConnell himself claimed he’d been “bugged” in a “Nixonian” fashion. Sen. Jerry Moran (R-KS), who chairs the National Republican Senatorial Committee, suggested in a statement that the audio recording was the result of “illegal acts.”
“What happened in #KYSEN a serious crime, & whomever responsible will face prison time,” tweeted National Republican Senatorial Committee spokesman Brad Dayspring.
The McConnell campaign reportedly asked the FBI to investigate the incident and has been in touch with the local U.S. attorney.“Both Kentucky and the federal wiretap act are one-party consent statutes,” said Jeff Hermes, director of the Digital Media Law Project at Harvard University. “If the recording was made by a party to the conversation, even if it was made secretly, that person won’t be liable under state or federal law. If it was a bug that was placed, or hidden by someone who wasn’t a party to the conversation, then there’s both potential civil and criminal liability.”
Joshua Douglas, an election law expert at the University of Kentucky, agreed with Hermes’ reading of the statute.
“You need at least consent of one party that’s part of the conversation,” he said in an interview.
In the audio recording, published by Mother Jones, McConnell and campaign aides discussed the opposition research they had conducted on potential Democratic challenger Ashley Judd, including her previous public statements about her own mental health conditions. The strategy session was held in early February, according to Mother Jones. Judd ultimately decided not to challenge McConnell.
“[I]f the ‘bugging’ was done by a person in the room, that may be OK,” wrote Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, in an email to TPM. “If the recording was done by someone not in the room, then there is likely wiretap liability.”
Republicans say the meeting was a private meeting in a private office, but for legal purposes that might not matter.
“[A]ll of this is premised on the notion that there was an expectation of privacy in the conversation,” Fakhoury added. “When you’re dealing with a private phone call, that’s easy to show. If its a crowded room where a number of people are having a meeting, that’s obviously much harder to demonstrate, as Mitt Romney found out the hard way last year.”
In other words, if an invited participant recorded the meeting and leaked the audio without the knowledge of the other participants, it’s likely that no crime was committed and nobody’s going to jail. Even if Republicans refer to the recording as a bugging.
Following its initial story, Mother Jones issued a statement on the circumstances of the recording:
As the story makes clear, we were recently provided with the tape by a source who wishes to remain anonymous. We published the article on the tape due to its obvious newsworthiness. We were not involved in the making of the tape, but it is our understanding that the tape was not the product of any kind of bugging operation. We cannot comment beyond that, except to say that under the circumstances, our publication of the article is both legal and protected by the First Amendment.
It’s also important to note that even if the meeting was recorded illegally, Mother Jones’ David Corn, who first posted the audio, would not be implicated unless he obtained it illegally, thanks to a Supreme Court precedent in the 2001 Bartnicki v. Vopper case.
“There’s nothing that could be done against any media that received the recording provided that media wasn’t involved in soliciting the recording in the first place,” said Hermes. “Media has a first amendment right to publish information of public important, even if that information was obtained unlawfully.”