April 12, 2013

"Did Recording the McConnell Meeting Violate State Law?"

Orin Kerr takes a look at the Kentucky eavesdropping statute and this relevant commentary:
A conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected by KRS 526.020. A person who desires privacy of communication has the responsibility to take the steps necessary to insure that his conversation cannot be overheard by the ordinary ear.
Kerr comments:
This is arguably quite relevant: the McConnell campaign discussion apparently was loud enough to be overheard from outside the door; from what we can tell, it was recorded from a phone or video camera without audio amplification. So that language makes me think that the recording was probably not a crime. At the same time, the commentary is ambiguous. It could be read as merely making the obvious point that eavesdropping requires a device. That is, listening with your ears is different from recording with a microphone.
Obviously, you don't want to make a crime out of happening to hear a conversation on the other side of a door or wall. Perhaps there's something a little more wrong about stopping to listen, once you realize you can hear people talking. If you can hear through the wall when your neighbors talk, should you have an obligation not to pay attention or is it their responsibility to make sure you can't hear? Yet to record them seems to cross a moral line, I would think.

But what would you say about writing down quotes? Many times, I've sat in cafés and heard people talking, and I've jotted down quotes I've found interesting. And here's a specific example: Once we sat in a café at a table where we could not help overhearing a conversation. We recognized one participant as a famous professor and he was saying some extraordinarily foolish things. There's a certain word, that — if you knew how to pronounced it the way this professor did — you could say and crack me up in one second. I could have written down a lot of quotes that day and blogged them. Decency constrained me. But, surely, that could not be made into a crime in the United States.

ADDED: I'm musing about what we might consider morally wrong because it relates to what the statute might mean and also what the government may — if it chooses — criminalize.

AND: It seems to me that putting your ear against the wall/door is wrong in a way that pausing to listen when you hear talking through a wall/door is not. Here's a passage from David Rakoff's book "Half Empty":
Once during the day... I could hear Raul Rivas having sex in the office downstairs. I skittered around the apartment like a cockroach on a frying pan, trying not to make noise while desperately looking for a knothole in the crappy floorboards. Eventually I just lay down flat against the tile of the kitchen floor, listening. Lying flat against the tile of the kitchen floor listening to someone else have sex is essentially my early twenties in a nutshell.
Morally wrong, but how morally wrong?

146 comments:

Mark O said...

No charges filed. They are Democrats. Come on. They meant well.

Nonapod said...

But what would you say about writing down quotes? Many times, I've sat in cafés and heard people talking, and I've jotted down quotes I've found interesting.

Isn't there no expectation of privacy in a public place like a café? Or am I wrong about that?

bpm4532 said...

where does expectation of privacy fit in? The federal government says our emails are their for the taking with a simple subpoena.

AprilApple said...

Behind a closed door vs. out in public.

Recording without consent-- a conversation that is behind closed doors.

C Stanley said...

Yeah somehow there has to be an intersection between expectation of privacy, along with the recording of the overheard conversation, in the law. I have no idea how it would be worded and if the current laws express this, but it's the combination of a reasonable expectation of privacy (closed door) and the intentional recording and distribution that should be prohibited.

Nonapod said...

Maybe Mother Jones could buy a swarm of Aeryon Scouts to hover around various GOP campaign headquarters to "overhear" stuff.

President-Mom-Jeans said...

So the apologists have no changed their line from "this was obviously a repubulican staffer leaking" to "it wasn't really any wrongdoing."

Get those talking points squared away, libtards.

AllenS said...

Many times, I've sat in cafés and heard people talking, and I've jotted down quotes I've found interesting.

What? I've never done that, and I don't know anybody else that has either. Seriously, WTF?

Ann Althouse said...

"Isn't there no expectation of privacy in a public place like a café? Or am I wrong about that?"

What's your point? The topic isn't the scope of the right to be free from unreasonable searches and seizures, because a private citizen is doing the "surveillance." The question is what does the government criminalize and what can the government criminalize.

Let's say the govt wants to go as far as it can to protect privacy and spare people from anguish and embarrassment by stopping other people from recording things they don't want to become public. The question isn't the scope of the overheard person's rights but the scope of the eavesdropper's rights.

I'm trying to identify the moral wrong that is perceived, because I think it's relevant to interpreting the statute and relevant to the free speech rights of the person who chooses to publicize someone else's speech.

Jay said...

I've sat in cafés and heard people talking,

Which is totally like Senate staffers talking behind closed doors in an office.

Lincolntf said...

I just don't buy the "hallway" alibi. A lot more believable that they noted the reservation of the conference room and dropped a smartphone in a potted plant, then fetched it afterwards. We know they're immoral and duplicitous by the way they recorded and leaked the tape, why believe them when they conveniently claim to have somehow followed the letter of the law? I don't.

traditionalguy said...

Criminalizing politics is only permitted by Democrats. It is like the advantage given by the Handicap Sticker for parking places.

All healthy Democrats are issued one, but even the truly disabled GOPers are not permitted to use theirs.

C Stanley said...

I wonder too if new technology isn't making it necessary to update the laws. Planting a bug is no longer necessary if one can be in the right place at the right time and place a ubiquitous recording device under a door. The law in this state apparently prohibits amplification- but isn't it technically the same thing if a recording device can get better access to the conversation than can the human ear (putting the phone in the space under. The door likely gave him clearer access to the conversation than the muffled sounds that came through the door.

Sam L. said...

Wife and I were having lunch at a little creperie out of town; women at an adjacent table. We heard one say "Susan wore a blue slip..."

garage mahal said...

The real question here is whether McConnell's staffers violated federal law and Senate rules by misusing Senate staff or resources to conduct opposition research on potential campaign opponents.

Colonel Angus said...

I'm still trying to understand what is so damaging about what McConnell was discussing.

Rahm Emmanuel repeatedly plunged a knife into a table while declaring Bill Clinton's enemies 'dead' and no one seemed disturbed by such violent death wishes.

Ashley Judd is a certifiable loon. Why wouldn't McConnell discuss re-introducing her looniness to the electorate?

CEO-MMP said...

So the answer to both state and federal, according to him, is "we don't know yet".

Friggin' lawyers.

C Stanley said...

"Isn't there no expectation of privacy in a public place like a café? Or am I wrong about that?"

What's your point? The topic isn't the scope of the right to be free from unreasonable searches and seizures, because a private citizen is doing the "surveillance." The question is what does the government criminalize and what can the government criminalize.

Let's say the govt wants to go as far as it can to protect privacy and spare people from anguish and embarrassment by stopping other people from recording things they don't want to become public. The question isn't the scope of the overheard person's rights but the scope of the eavesdropper's rights.

I'm trying to identify the moral wrong that is perceived, because I think it's relevant to interpreting the statute and relevant to the free speech rights of the person who chooses to publicize someone else's speech.


Wait, isn't this the opposite side to your argument on civil rights? That if the government wants to protect civil rights of individuals, not from govt abuse but from private individuals, it can and must do so? Why is it opposite when government sees a need to protect private communications?

President-Mom-Jeans said...

Bitchtits Mahal says:

"The real question here is whether McConnell's staffers violated federal law and Senate rules by misusing Senate staff or resources to conduct opposition research on potential campaign opponents."

You are so full of shit, fatboy. The meeting was during their lunch.

But don't worry, maybe they were using secret routers during the meeting. Indictments should be coming out any day now.

Alex said...

garage - deflecting.

Jay said...

the McConnell campaign discussion apparently was loud enough to be overheard from outside the door

Really?

Why?

There is no rational reason to believe this.

Lincolntf said...

And of course this is the same KY Progress outfit that conducted the racist campaign against McConnell's wife. They're the typical Leftist activists, ignorant, self-obsessed, and probably addicted to one thing or another. They get no benefit of the doubt, nor do their scumbag enablers.

ed said...

@ Althouse

So. You are depending on the statements by liberal Democrats to insulate liberal Democrats from criminal actions undertaken by liberal Democrats?

Why don't we wait until actual evidence is available.

Nonapod said...

I'm trying to identify the moral wrong that is perceived, because I think it's relevant to interpreting the statute and relevant to the free speech rights of the person who chooses to publicize someone else's speech.

In my opinion it's not morally wrong to overhear anything, but it could be to morally wrong to broadcast what was overheard to the public depending on the circumstances.

virgil xenophon said...

I'm with c.stanley here. Look, if the SCOTUS can find a "penumbra" of privacy emanating from the words of the constitution, the four corners of the document--all without the original document referring to "rights of privacy" ONCE, directly--then surely a creative judge (if one does one's judge-shopping well) can be found to interpret the case such that the Ky Statute, combined with the circumstances (closed office door) produce a resultant penumbra of expectations of privacy that can be found to extend from the statute and circumstances to cover the use of the recording device and thus declare the act illegal. There, FIFY.

ed said...

@ Althouse

"The question isn't the scope of the overheard person's rights but the scope of the eavesdropper's rights."

Then quote us chapter and verse on the Constitution and where it states that eavesdroppers have rights.

I seem to recollect a "penumbra" to the right to privacy but no such penumbra to the right to overhear other people's conversations. So if there is such a right then how would you go about defending it? What if a commercial establishment had a sign that read "Mind your own goddamn business"? Would that be infringing on your "right" to be a big nose busybody? Would you sue? Under what statute? Legal argument?

Ann Althouse said...

"Wait, isn't this the opposite side to your argument on civil rights? That if the government wants to protect civil rights of individuals, not from govt abuse but from private individuals, it can and must do so?"

In both cases, you have individuals with conflicting interests (they may be seeking statutory protection from behavior that doesn't violate their constitutional rights or they may be arguing that they have constitutional rights that trump the statute somebody else wants). In both cases, someone will get want they want and someone won't.

Case 1: X owns a restaurant and wants to control which customers he seats and Y is a black person who doesn't want to be excluded if X decides not to seat black people. Which interest should prevail. I said Y.

Case 2: X wants to speak freely without his statements being leaked onto the internet and Y is able to hear the speech and would like to communicate freely about that speech. I want to know more about both X and Y. I'm trying to focus on what really seems to be bad and good behavior.

AllenS said...

eavesdropper's rights

Is that part of your law school curriculum?

virgil xenophon said...

To advance my argument, above, further, I see ABSOLUTELY no difference in putting a mike at the ventilation vent on the door to crawling thru the duct work in the ceiling and putting a mike at the ac vent leading into the room. While technically neither act will have broken the plane of the room's boundaries, I'm bettin' big money a jury would slam-dunk the illegality of the crawling-thru-the-duct-work bit. But the act of putting mike to the door vent is functionally no different, n'cest-ce pas?

lincolntf said...

If listening at the door to record a private conversation isn't bad behavior, then everything I learned since kindergarten all of a sudden seems questionable.

Synova said...

I would say that eavesdropping is a different meaning than overhearing.

That's common sense.

"Eavesdropping is the act of secretly listening to the private conversation of others without their consent, as defined by Black's Law Dictionary.[1]" (Wikipedia)

That and several other quick "define eavesdropping" googles specify that it's secretly listening to a private conversation. Eavesdropping (what a good opportunity for that EOD reference, huh?) itself refers to standing outside of a building (under the eaves) and listening to conversations inside the building. OBVIOUSLY those conversations are loud enough to be heard through the wall. That's what the word *means*.

The fact that you can hear a conversation through a door is obviously irrelevant. You're listening "secretly" to "private conversations" and you KNOW it.

When you're sitting in a cafe the conversation may be "private" but your listening isn't "secret". The speakers know you're there. They know you can hear them.

Saying that people have an obligation to ensure that their conversations cannot be overheard before someone listening secretly to their private conversation can be considered eavesdropping is like saying that if you don't ensure that your property cannot be stolen it's legally impossible for anyone to steal from you.

C Stanley said...

So who gets to decide what is good and bad behavior? I thought the point of impartiality of the rule of law is that sometimes the govt should be restricted from acting even to prevent stuff that most people think is bad (free speech by Neonazis, for example.)

I don't get the selective abandonment of that principle. I guess it gets confusing as to when feelings rule and when abstract principles do. Can you articulate a guiding principle that doesn't just sound like it depends on how strong your feelings are in any particular point of law?

Ann Althouse said...

And by the way, in Case 1, if you want to say X wins, I would need you to express serious consideration for Y. In the situation I described at the conference, I was hearing a libertarian speaking in a smug and superior tone and relying solely on abstractions about property ownership and the free market. There was a staunch withholding of compassion that freaked me out and made me think: How do I know this isn't a veneer for racism? I needed some kind of sign, and when it was denied even when I asked, it was more evidence that I was in fact looking at a veneer. I was repelled. It was visceral to me. I felt horror.

AprilApple said...

Please enlighten us on the Senate staffer rules that only apply to the GOP, dear Garage.

Colonel Angus said...

I must have been naieve to think that recording someones private conversation without their knowledge and playing it for everyone to hear was illegal.

SteveR said...

I tend to doubt the conversations could be that clearly heard from underneath the door. "Oh Wow, its those McConnell folks doing opp research and we can so clearly hear them, let's record it"

Regardless of the technicalities, it would only be a defense attorney or a partisan democrat who can't admit it was a violation of privacy. Just admit it.

Colonel Angus said...

I was in fact looking at a veneer. I was repelled. It was visceral to me. I felt horror.

Did you clutch your pearls? Was fainting involved?

Hyperbole much?

CEO-MMP said...

AA says:

I was repelled. It was visceral to me. I felt horror."


Isn't that why the law is supposed to be the law? Isn't it why the ACLU represents the KKK? It's got nothing to do with how you feel--because how you feel is worthless, because it's different than how I feel or how Shouting Thomas feels.

The law.


Colonel Angus said...

So if I walk by an open bedroom window and see a couple in flagrante delicto, I can video record them on my smartphone and upload it to the Internet and that's ok.

lincolntf said...

Speaking of horror, Kermit Gosnell is still a non-story in the MSM. Murdering black infants for fun and profit? No biggie, they're probably better off dead. Read passages from a political opponent's book,? Oh, the humanity! That's a headline generating super-story!

Darrell said...

Has a search warrant produced a device like a microphone and camera on a flexible shaft like SWAT uses to sweep rooms from the outside?

I know, what search warrant?

CEO-MMP said...

Serious question, Professor: why do you care about good and bad behavior? What's that really got to do with the law--which is the issue at hand, at least as you framed the debate with your initial post.

If you want to talk about whether or not these Free Kentucky (or whatever) peeps should've done it, post asking that.

JL said...

I must have been naieve to think that recording someones private conversation without their knowledge and playing it for everyone to hear was illegal.

I was naive as well. Better to not over think this; let's keep it simple:

Democrat doing the eavesdropping= not a crime
Republican doing the eavesdropping= crime

Similarly:

Eavesdropping hurts a Republican= eavesdropper is not only not committing a crime, he/she is a hero
Eavesdropping hurts a Democrat = the eavesdropper committed a crime and is declared indecent

CEO-MMP said...

Colonel Angus said...

So if I walk by an open bedroom window and see a couple in flagrante delicto, I can video record them on my smartphone and upload it to the Internet and that's ok.

A Boston College football player charged with violating state wiretap laws by secretly recording a consensual sexual encounter between his roommate and a woman has admitted in a plea agreement that there are facts sufficient for a finding of guilty.

http://www.huffingtonpost.com/2012/12/12/jaryd-rudolph-sex-recordi_n_2287257.html

Marshal said...

Eventually I just lay down flat against the tile of the kitchen floor, listening. Lying flat against the tile of the kitchen floor listening to someone else have sex is essentially my early twenties in a nutshell. Morally wrong, but how morally wrong?

A little morally wrong.

But consider a better analogy. How would we feel about taping the sex event and then releasing it online with the participants identified?

Lem said...

Lying flat against the tile of the kitchen floor listening to someone else ...

As long as you are not leaning in... do whatever you want ;)

Colonel Angus said...

Again, why did Mother Jones think this was a gotcha on McConnell? Shock over politicians looking for dirt on opponents is like getting upset that bears shit in the forest.

Synova said...

"How do I know this isn't a veneer for racism? "

Mostly because people who really are racists will simply say so.

Or else they will give a false assurance that they are not racists.

The people you were talking with apparently did neither. And if someone seemed to irrationally need assurance that I was not a racist, why would I feel obligated to play their game?

Colonel Angus said...

A Boston College football player charged with violating state wiretap laws by secretly recording a consensual sexual encounter between his roommate and a woman has admitted in a plea agreement that there are facts sufficient for a finding of guilty.

Seems straightforward to me. Don't know how secretly recording McConnell's conversation is any different.

CEO-MMP said...

LOL, Synova. People who are racists will either say they are or say they aren't.

Well, I'm not a racist.

So...am I or ain't I, you think?

:)

Synova said...

"I was hearing a libertarian speaking in a smug and superior tone and relying solely on abstractions about property ownership and the free market. There was a staunch withholding of compassion that freaked me out..."

I've known people like this... generally they were super smart and had decided that either they couldn't relate to people or there wasn't a reason to try and it didn't make sense to pretend they weren't super smart...

I think it's called "being on the autism spectrum."

C Stanley said...

And by the way, in Case 1, if you want to say X wins, I would need you to express serious consideration for Y. In the situation I described at the conference, I was hearing a libertarian speaking in a smug and superior tone and relying solely on abstractions about property ownership and the free market. There was a staunch withholding of compassion that freaked me out and made me think: How do I know this isn't a veneer for racism? I needed some kind of sign, and when it was denied even when I asked, it was more evidence that I was in fact looking at a veneer. I was repelled. It was visceral to me. I felt horror

So likewise if I am repelled by an abortion rights discussion that fails to show any consideration for the life of a fetus, it's fine for me to respond by calling the other participants "baby killers" or asking them to prove that they do not support murder?

CEO-MMP said...

And by the way, it was audiotaping, he didn't turn on his web cam or anything. If I remember correctly he just held his phone up outside the door while they were goin' at it.

from the Boston Globe:
Rudolph, 20, a former star at Silver Lake Regional High School in Kingston, admitted using his phone Feb. 15 to audiotape the sexual encounter. He allegedly forwarded the recording to his roommate, who admitted sending it to at least one other teammate, according to BC police.

Erika said...

Synova at 11:20--masterful post. Outta the park.

Synova said...

CEO - I know that sounded paradoxical, and maybe it is.

Can you imagine, for example, Cedarford being shy about his opinions? No, me neither.

But someone who knows they are racist and knows they must appear not to be racist enough that they will adopt a *veneer* to hide that racism is already in the process of lying about what they think.

So why wouldn't that person offer a denial? Why not an "of course I'm not!"

You still don't know if it's a lie or truth, but I think that the person who is least likely to be attempting to hide racism is the person who is so disgusted or uninterested in your need for reassurance that they refuse to give it.

It's not one of only two conditions, it's one of at least four conditions.

Marshal said...

Colonel Angus said...
Again, why did Mother Jones think this was a gotcha on McConnell?


The media knows their job is to just make noise. Down the road other leftist institutions will use the noise to take the next step. Virtually no one pays attention to the details, but two years from now they'll have repeated it enough it's conventional wisdom that McConnell viscously attacked Judd.

How many leftists repeat that the SBVT charges were "disproven"? I hear it all the time, despite the fact that every factual assertion which was resolved was in the SBV's favor. When you control academia with so many willing participants you don't need truth.

CEO-MMP said...

Oh and they thought it would make Sen. Mitch look bad because in part he's an evil republican and in part because everybody loves Ashley Judd...she's so cuddly and all.

Gack.

CEO-MMP said...

Synova, we don't really know what Cedarford is like in real life, but I take your point.

And I also liked your post re being on the autism scale!

C Stanley said...

I agree with Synova and also find that some people will refuse to try to prove a negative because it's an unwinnable game. I can see how a person adopting that stance might appear smug if they are annoyed by someone's persistent attempts. That is at least a fair reading of the behavior described, rather than taking the least flattering interpretation.

Colonel Angus said...

everybody loves Ashley Judd...she's so cuddly and all

Is she the fat one?

Nonapod said...

Case 2: X wants to speak freely without his statements being leaked onto the internet and Y is able to hear the speech and would like to communicate freely about that speech. I want to know more about both X and Y. I'm trying to focus on what really seems to be bad and good behavior.

From a moral standpoint it's all in the details, the content of the speech and the intents of both X and Y.

First off, I'd like to make a distinction between passively overhearing a conversation and actively going out of ones way to surreptitiously hear or record it. The former is an accident and there's no fault, but the later is an intrusion with intent. The later falls morally on the bad side of things.

In other words, in the case of the McConnell meeting, if they intentionally recorded it I believe they are morally in the wrong. Legally I haven't the foggiest (IANAL)

JL said...

I was repelled. It was visceral to me. I felt horror.

Maybe you are oversensitive about the topic. Others there apparently didn't have the same emotional response that you did. Do you think yourself morally superior because of the way you felt? Your "why doesn't everyone else see how racist this is? " stance implies as much.

Does it ever occur to you that maybe you need to examine your emotions and not be led by them? Emotions are a tool for your reason; they shouldn't replace it.

CEO-MMP said...

Colonel Angus said...

everybody loves Ashley Judd...she's so cuddly and all

Is she the fat one?


She's the daughter that looks more like momma used to look, so, no, she's not the fat one.

Erika said...

It's a waste of time to argue with people who are a bit frantically trying to suss out whether another person is a racist or not, and yes that includes you, Althouse. It's ridiculous and, frankly, offensive in this day and age. As someone in comments pointed out yesterday, you need to understand that you're looking at this from a hidebound generational view. The only rational position is to assume that others, in 2013 America, are not racist, unless you have some CONCRETE reason to think so. Not failure of others to meet whatever signals or tests you construct in your mind.

I am 33 years old and I was well into my twenties before I ever heard anyone utter anything like a racist sentiment, and it was from an white Canadian man who also happened to be schizophrenic.

As a human being, I can sort of understand why you apparently have these strange PTSD-like responses to the notion that someone else might be racist. But as a thinker, I urge you to consider how valid that attitude is.

ed said...

@ Althouse

Case 1: Seriously? You're wasting everyone's time with this?

Case 2: Oh so it's about "behavior" then and not the law? In that case Y is totally fucked because it is the essence of bad behavior to violate someone else privacy.

You know since we're abandoning law, Constitution, rights and such and just sticking with behavior.

edutcher said...

Unless it was a screen door, get real.

And, as for morally wrong, the Lefties think that morality stuff is soooo judgmental.

Original Mike said...

I guess we're all suppose to get one of these, now. Great.

Hagar said...

BTW, the "oppo research" they were discussing appears to have been Ashley Judd's published autobiography.

Jay said...

And by the way, in Case 1, if you want to say X wins, I would need you to express serious consideration for Y.

Yes, to satisfy your embarrassing liberal white guilt.

My God, are your ramblings on race pathetic.

Original Mike said...

"I'm trying to focus on what really seems to be bad and good behavior."

Recording a conversation taking place behind a closed door and leaking it to the press is bad behavior.

You're really having a problem with this?

Chuck66 said...

The MSM double standard.

"Leaked" vs "stolen" emails/phone recordings.

Republicans steal. Democrats leak.

If I was getting a masters in Journalism, that would be my project. Do it scientific study. Not just ancedotal stories.

Kirk Parker said...

Althouse,

"But, surely, that could not be made into a crime in the United States."

Surely, surely... actually what's far more certain is that your confidence is misplaced.

Ann Althouse said...

"So likewise if I am repelled by an abortion rights discussion that fails to show any consideration for the life of a fetus, it's fine for me to respond by calling the other participants "baby killers" or asking them to prove that they do not support murder?"

You might want to know if they have any feeling at all for the unborn. Personally, I think abortion rights supporters should show they care even as they give priority to the woman's bodily autonomy. They do t like to do that, though, for fear all will be lost if they acknowledge the humanity of the being whose interests they are subordinating. Slaver was defended the same way.

It's easier to defend the restauranteur. He's only excluding you from one restaurant.

Bender said...

The substance of the offense is not the listening, but the recording. If someone was in the room by invitation, and thus authorized to be there and hear what was said, that would not necessarily mean that they could surreptitiously have a recorder in their pocket.

Chuck66 said...

AA...the abortion thing. Do they care about the health of women?

Demoracts are fighting any laws that require and abortion clinic to have a true health care professional there. To have medicial equipement.

Yet in Chicago and NYC, Democrats are trying to close down crisis pregnancy centers that do offer a wide range of medical services with actual doctors.

Ann Althouse said...

"Saying that people have an obligation to ensure that their conversations cannot be overheard before someone listening secretly to their private conversation can be considered eavesdropping is like saying that if you don't ensure that your property cannot be stolen it's legally impossible for anyone to steal from you."

But the question isn't what does the word eavesdropping mean. It is was does/should/can the govt criminalize. To answer that question, we need to think about what is wrong and how wrong it is in balance with various goods..

It might be that some eavesdropping but not all eavesdropping should be a crime. Where the line is should not depend on the dictionary definition, thought that has some role where the word appears in the statute.

The word does not appear in the Constitution.

Nonapod said...

And I tend to dislike the tactics of investigative journalism even when I like the results (James O'Keefe and ACORN)

AllenS said...

It's easier to defend the restauranteur. He's only excluding you from one restaurant.

Can the Black Congressional Caucus exclude white members of Congress?

Ann Althouse said...

Sorry, I'm typing on the iPad.

Don't

Slavery.

AllenS said...

Your typing isn't the problem.

Chuck66 said...

I agree with Okeefe. My problem with him is that he is trying to set someone up. Kind of lead them into saying something.

roesch/voltaire said...

Yes if they had just taken notes then everybody could deny them, where as using a flip camera, as Althouse knows, is more accurate and more difficult to dispute. But what is in dispute is bad behavior vs breaking the law? When does as an over-heard conversation become an illegal invasion of privacy-- it seems when the venue switches from cafe to caucus?

Rocketeer said...

They don't like to do that, though, for fear all will be lost if they acknowledge the humanity of the being whose interests they are subordinating. Slavery was defended the same way.

Seems to me - given the context of your support for abortion rights - you are de facto arguing that slavery would somehow be defensible, as long as slaveholders acknowledged the terrible human toll of the practice? And that you in fact might conceivably get behind that defense? If not, I apologize - but you'll need to give me some kind of sign that's not the case. Otherwise, I'm repelled and horrified not only by your explicit support of abortion but by your implied support for slavery. I know this may seem irrational, but I'm only human , and human mental processes occur within the anatomical structures of nervous system. I'm not a computer, and that's a good thing.


C Stanley said...

You might want to know if they have any feeling at all for the unborn. Personally, I think abortion rights supporters should show they care even as they give priority to the woman's bodily autonomy. They do t like to do that, though, for fear all will be lost if they acknowledge the humanity of the being whose interests they are subordinating. Slaver was defended the same way.

Yes, I might prefer that they express this, but it would still be indecent of me to presume the worst about their personal feelings of empathy toward the unborn person, rather than realizing that there can be a distinction between what they beleive is morally wrong and that which the government should prohibit. At times I definitely do have trouble seeing abortion rights activists in the more sympathetic light but I still think that I am the one acting indecently (and acting to chill open discussion of the issues) if I lash out in an emotional outburst.

Chuck66 said...

AllenS.....on college campuses, they say no.

Not talking about membership ther, but leadership. A Catholic group can't require their president to be a Catholic.

UW-Madison discriminated against their Catholic students by trying to remove a Catholic group over this issue. And Madison pressured UW-Superior into doing the same thing. I emailed with the lawyer on this case and he said it was Madison calling the shots there.

ed said...

@ Althouse

"But the question isn't what does the word eavesdropping mean. It is was does/should/can the govt criminalize. To answer that question, we need to think about what is wrong and how wrong it is in balance with various goods.. "

WTF? So you are now arguing about *law* and not *behavior*? Pick a goddamn argument and stick with it to the end instead of trying to wriggle your way off the hook.

Should it be illegal? Yes it damn well should. If there is an expectation of privacy for two men to bugger each other in the ass then there damn well is an expectation of privacy to have a conversation behind closed doors.

You are welcome to argue the opposite.

Chuck66 said...

There would be twice as many African-Americans in the US today if it wasn't for abortion.

In NYC, 60% of all African-Americans die due to abortion. And Mayor Bloomberg wants more abortions to occur there. Giving millions of his own money to PP. Trying to outlaw crises pregenancy centers.

gadfly said...

Garage: There is nothing to indicate that McConnell staffers did anything wrong. Check it out . . .

As for CREW - why was this 501(c)(3) organization at this political meeting? It is against the law, you know.

Chuck66 said...

gadfly, garage knows they did nothing wrong as this part of the story comes up everytime we talk about this.

Chuck66 said...

And don't get me started on leftwing 501(c)(3) that are nothing but political organizations.

Sierra Club. NAACP. And tons of other.

Mary Beth said...

Jay said...

the McConnell campaign discussion apparently was loud enough to be overheard from outside the door

Really?

Why?

There is no rational reason to believe this.

4/12/13, 11:02 AM


Maybe some laughter could be heard in the hallway. So they say the group could be heard, omitting the inconvenient detail that the actual conversation needed electronic help to be heard.

Nonapod said...

Regarding how morally wrong I think surreptitiously recording a conversation and then broadcasting it is, I think it should be a misdemeanor level offense. Ideally I think the law should provide a disinclination towards that sort of behavior.

phx said...

Ashley Judd is a certifiable loon. Why wouldn't McConnell discuss re-introducing her looniness to the electorate?

IMO the more your side discusses what a "certifiable loon" Judd is the better it is for our side.

CEO-MMP said...

Hey phx, apparently your side has similar concerns...

But you keep demonizing the other side.

CEO-MMP said...

The honeymoon is over for Ashley Judd.

At a time when Democrats in Washington are having second thoughts about embracing Ashley Judd as their standard-bearer against Senate Minority Leader Mitch McConnell in 2014, Kentucky Democrats are waving red flags about the actress, arguing that her candidacy plays into the GOP's strengths and tarnishes the party brand in the Bluegrass State.

http://www.theatlantic.com/politics/archive/2013/03/kentucky-democrats-are-afraid-ashley-judd-really-is-running-for-senate/273946/


But yeah phx. It's all about republicans being evil creatures right?

Pathetic.

Rocketeer said...

IMO the more your side discusses what a "certifiable loon" Judd is the better it is for our side.

Perhaps. In MY opinion, pace Oscar Wilde, one must have a heart of stone to read about "psychological support dogs" and "Brother Donkey/Sister Bird" without laughing.

Bruce Hayden said...

I don't find the recording through the door credible, and definitely would not get them around the federal wiretap act. Problem is that sound doesn't travel equally through media other than air. Most likely, I think, that if the phone or other normal recording device were fully outside the door, that there would be gaps in both pitch and content, with the recording probably missing much, if not all, of what some of the people said due to their location, volume, and pitch. Unless the sort of pickup mike was used that is designed for this sort of thing, something that could attach to the surface of the door. But, then, you get into the expectation of privacy, and that usually doesn't include someone attaching a spy-type mic to the outside of the door.

Should be fairly easy to prove, one way or another. Get the room, and record from just outside it, with a range of people at various locations within, and see if a device such as a cell phone can pick up all the voices in the way that was supposedly done. My guess is no, but am open to being shown wrong.

Rocketeer said...

Should be fairly easy to prove, one way or another. Get the room, and record from just outside it, with a range of people at various locations within, and see if a device such as a cell phone can pick up all the voices in the way that was supposedly done.

No need. The building management company's turned over the security tapes to the FBI. Should be fairly straightforward to determine he "how."

lincolntf said...

The Dems have been sending the genuinely insane to Congress for years, Jesse Jackson Jr, Cynthia McKinney, Hank Johnson, the list goes on. These people are mentally ill or just so damned ignorant that they might as well be developmentally disabled. Pointing out the Demos penchant for the insane and stupid doesn't hurt the GOP a bit.

BDNYC said...

My God, is she still literally crying?

Bender said...

Given that it is completely legal for someone to publicly disclose what they heard (or overheard) with their ears, and to reveal what was said verbatim, it is pretty clear that these anti-recording laws are meritless.

If someone says, "I heard A say 'X'", and then A comes along and denies saying it and adds that anyone who says he said "X" is a liar and "it is only my word against his," there is no reason that a recording could not be produced as proof of what was actually said.

damikesc said...

The real question here is whether McConnell's staffers violated federal law and Senate rules by misusing Senate staff or resources to conduct opposition research on potential campaign opponents.

Reading her public quotes is "misuse" of anything nowadays?

the scope of the eavesdropper's rights

They are non-existent.

Next question.

the more your side discusses what a "certifiable loon" Judd is the better it is for our side.

Democrat voters are incapable of recognizing a loon if they support some of their positions?

Speaks highly of you.

Really.

Original Mike said...

"The building management company's turned over the security tapes to the FBI. Should be fairly straightforward to determine he "how.""

Who's the stupid party now?

phx said...

Hey phx, apparently your side has similar concerns...

But you keep demonizing the other side.


IMO we're all Americans, we're all in this together, we have similar concerns (wasn't sure exactly what you meant).

I'm tough on you guys here often enough, I'm not a Repub. But I DON'T demonize you. I like most republicans and wingers well enough when we're not arguing politics. I get along with rethugs and bitter clingers, I genuinely like them. WTF do you think I hang out here for?

There's a lot I can criticize about my side but this is not the right forum for that. You guys do a good enough job. But if I'm honestly asked I'll always give an honest opinion.

Erika said...

IMO the more your side discusses what a "certifiable loon" Judd is the better it is for our side.

Bless your heart--maybe you could go ahead and tell the class how the average voter in Kentucky could look at her resume, Wiki and autobiography and come to any conclusion other than that she's a well-meaning flake who's never had a real job.

phx said...

But yeah phx. It's all about republicans being evil creatures right?

Pathetic.


I have never once, ever, come to Judd's defense here about anything. I will say she's a fine actress and a fine looking woman. I don't cosign on her politics. I'm not that interested.

phx said...

Bless your heart--maybe you could go ahead and tell the class how the average voter in Kentucky could look at her resume, Wiki and autobiography and come to any conclusion other than that she's a well-meaning flake who's never had a real job.

Just curious if Kentucky is an at-risk state for Repubs or Dems?

Rabel said...

Great comments from Synova and Hayden and others.

I'll just add that, as regards the federal wiretap statute, the good news is that Holder's justice department will be all over this like brown on Basmati.

Ok, so they probably won't. But I've been itching to use "brown on Basmati."

phx said...

I think it's good for Dems when you discuss Judd's "certifiables" not because I think you are being unfair or anything like that... but because you guys just generally sound bad when you are attacking. IMO.

You sound bad when you are defending, too, but that's another problem.

DADvocate said...

526.030 Installing eavesdropping device.
(1) A person is guilty of installing an eavesdropping device when he intentionally installs or places such a device in any place with the knowledge that it is to be used for eavesdropping.

Undoubtedly they "installed" an eavesdropping device.

CEO-MMP said...


IMO we're all Americans, we're all in this together, we have similar concerns (wasn't sure exactly what you meant).

I'm tough on you guys here often enough, I'm not a Repub. But I DON'T demonize you. I like most republicans and wingers well enough when we're not arguing politics. I get along with rethugs and bitter clingers, I genuinely like them. WTF do you think I hang out here for?

There's a lot I can criticize about my side but this is not the right forum for that. You guys do a good enough job. But if I'm honestly asked I'll always give an honest opinion.


Yeah. You don't demonize. Just say things like "rethug" and "wingers" and so forth.

phx said...

Yeah. You don't demonize. Just say things like "rethug" and "wingers" and so forth.

Try lightening up. I use "libtard" here a lot.

These are terms of endearment for me, winger.

lincolntf said...

I've given up caring what I sound like to Liberals. They show their true faces often enough, from the howling mobs in Madison to the slack-jawed union monkey in MA calling for blood in the streets. I'm a far better person than any of them, their judgment is meaningless.

BDNYC said...

Ann, do you really think someone has a reasonable expectation of privacy in a coffee shop?

President-Mom-Jeans said...

Phx says:

"These are terms of endearment for me, winger."

Exactly! Just like when I call you and Inga "stupid twats."

And Bitchtits, well, "bitchtits."

Do you feel endeared?

jacksonjay said...


What does the Washington Post have to say about this?

jacksonjay said...


Front page - Washington Post!

CEO-MMP said...

phx said...

Yeah. You don't demonize. Just say things like "rethug" and "wingers" and so forth.

Try lightening up. I use "libtard" here a lot.

These are terms of endearment for me, winger.


I'm not a winger, you stupid cunt.

Endearing, ain't it.

glenn said...

Two things this story proves, one is that the Dems are fundamentally dishonest, two is that McConnell is too flippin dumb to be anything but a politician.

CEO-MMP said...

I'm not a fan of McConnell's at all--but how does this show he's dumb?

C Stanley said...

If anyone, I've been wondering about the dumbness of David Corn for running with this. Most plausible explanation I can come up with is that he (plus other Dems) wanted this to get out to thoroughly discredit Ashley Judd and prevent her from ever thinking of running again, while blaming the meanness on McConnell's team.

Rocketeer said...

I still maintain that if you think McConnell is dumb, 1) you're not paying very close attention, and 2) he's at an advantage with you.

damikesc said...

I think it's good for Dems when you discuss Judd's "certifiables" not because I think you are being unfair or anything like that... but because you guys just generally sound bad when you are attacking.

I used to think that.

But then I watched Obama win the WH with the most relentlessly negative campaign I've ever seen.

Attacking works.

Never EVER stop attacking.

Achilles said...

damikesc said...

I think it's good for Dems when you discuss Judd's "certifiables" not because I think you are being unfair or anything like that... but because you guys just generally sound bad when you are attacking.

I used to think that.

But then I watched Obama win the WH with the most relentlessly negative campaign I've ever seen.

Attacking works.

Never EVER stop attacking.

4/12/13, 3:03 PM

This is correct. You have to attack the motives. And given the history of progressive policies, their failures and the millions killed as a result, only a morally depraved person would support them. Ignorance is not an excuse when information is so easily available.

phx said...

Exactly! Just like when I call you and Inga "stupid twats."

No. It's not the same. Everyone knows how angry and mean-spirited you are. How you can't create a post without calling someone a name.

Don't confuse my good nature for your immaturity.

phx said...

I'm not a winger, you stupid cunt.

You're right there with Mom-Jeans, aren't you? Too bad. I was trying.

phx said...

you stupid cunt.

You see, I would never call anybody that. It doesn't bother me that you call ME that, that's the way it is.

But my explanation is that I have more class than that. MOST of the wingers here have more class than that, too.

It's you few guys at the bottom of the barrel who have to feel like everything's personal and everyone who disagrees with you deserves an obscenity.

Overall I think you guys help the Dems more so it's all right.

CEO-MMP said...

phx said...

I'm not a winger, you stupid cunt.

You're right there with Mom-Jeans, aren't you? Too bad. I was trying.

Hmm. So it's okay for you to call me a name because it's a term of endearment for you...but when I do it, not so much huh? Okay.

Return to your regularly scheduled superiority complex.

phx said...

Return to your regularly scheduled superiority complex.

Absolutely.

Bruce Hayden said...

Hate to have to correct myself, but the recording seems to have happened outside the door of an office or room rented by the participants, and the meeting happened right after an open house open to the public.

This makes it a bit muddier in some respects, and less so, maybe in others. On the one hand, having control over a space (and, thus the door) would seem to increase the duty to check for significant air gaps under it before having such a partisan discussion. On the other hand, the public may have less legitimate access to the hallway outside the room. In a hotel, there is often a lot of legitimate traffic through the halls around the meeting rooms. In a lot of office buildings, there is often much less. The question may be whether or not the alleged perps had a legitimate reason to be in the hallway from which they claim to have recorded the conversation.

Should be interesting.

President-Mom-Jeans said...

"Don't confuse my good nature for your immaturity."

Ah yes, so you claim to be the arbiter of what constitutes an insult, and what terms are acceptable.

You also claim to be the arbiter of what constitutes "good nature" and "immaturity." Of course you are always on the right side of things and those who disagree are always on the wrong, in your stupid little head.

Typical leftist bullshit. The Althouse who was into cruel neutrality used to term nonsense like that as "civility bullshit", but the current Althouse probably will probably just weep.

Obscenity is a perfectly legitimate mode of expression, and if you don't like that, well, you can go fuck yourself.





phx said...

Obscenity is a perfectly legitimate mode of expression, and if you don't like that, well, you can go fuck yourself.

I use 'em all the time. Not the way you do though. I don't call people obscenities.

The difference between us is you don't know what's right and what's wrong.

Oh, well.

President-Mom-Jeans said...

"I use 'em all the time. Not the way you do though. I don't call people obscenities."

Well pin a fucking rose on your nose. Congratulations for meeting your own arbitrarily drawn standard of what constitutes right and wrong.

Forgive me if I do not bow down to the moral authority of some trollup on the internet, and immediately conform the the rules of right and wrong as handed down from on high from the almighty deity Phx.

Any other commandments on your tablet that I should know about? For fuck's sake, supposedly the right side of the political spectrum is the one attempting to enforce their morality on other people, but apparently not on this blog at least.

MayBee said...

What was in the hallway outside the room? More office space?

What if this were a case of, say, a guy video taping a woman in a hotel room through the peephole or in the door gap? She's in the room, he's in the hallway.

Is that ok? Is it different?

MayBee said...

What would Erin Andrews say about this taping?

Matthew Sablan said...

The good barometer is, if police had done it, would it get thrown out of court without a warrant.

Matthew Sablan said...

"Isn't there no expectation of privacy in a public place like a café?"

-- There is and there isn't. If I go to a sports game, I can expect to maybe be caught on the Jumbotron, zoomed in on, for people next to me to note things I say/do, etc. But, there's a different level of scrutiny in that, and say, someone writing down my every word said in a public place.

phx said...
This comment has been removed by the author.
phx said...

For fuck's sake, supposedly the right side of the political spectrum is the one attempting to enforce their morality on other people, but apparently not on this blog at least.

Oh you misunderstand. I'm not trying to enforce morality on anyone at any time.

I'm merely pointing out that you're low.

Shrug again.

Synova said...


"Problem is that sound doesn't travel equally through media other than air."

Mostly, with the exception of vacuum, sound travels better through media other than air.

This is why the classic "glass held to the door" is a classic. This is why a laser on a window can listen to what is said inside the building.

Synova said...

"But the question isn't what does the word eavesdropping mean. It is was does/should/can the govt criminalize. To answer that question, we need to think about what is wrong and how wrong it is in balance with various goods.."

If the law exists, the law was broken, and after conviction the convicted and take it to the Supreme Court since they've now got standing.

But really... how could the Supreme Court find against privacy in this case, without bringing into question other politically important rulings based on privacy?

Dante said...

The word does not appear in the Constitution. (eavesdropping)

But Copywrite does. You can't steal a written work with a (C) on it. How about the equivalent?

Seriously, it's obvious this was private information. What more do you need for the moral part of it.

The legal part? In many conversations I take part in, the fact the discussion is under NDA (non disclosure agreement), is stated up front. And that's a reminder to expected participants. I would say simply if you don't have a reasonable expectation of being party to the information, you have to ask permission first.

Really, it's that simple. It isn't your property.

Douglas said...

Garage is starting to sound like one of the "50-cent" men, the folks hired by the Propaganda Department of the Chinese Communist Party to patrol the web and post anti-Western and pro-Party comments under pseudonyms so as to create the illusion of popular support for the Party. They are called "50-cent" men in China because they are supposedly paid 1/2 RMB for each posting.

One of the hallmarks of a 50-cent posting is an attempt to divert discussion from the topic at hand. If a WashPo article talks about the Party's suppression of religious liberty in China, the 50-cent men will be out in force commenting about how America killed all the Indians or something like that. Kind of like Garage.

Harold House said...

damikesc said...
"But then I watched Obama win the WH with the most relentlessly negative campaign I've ever seen."

Mr. Obama is in the WH because he ran a far superior campaign against a mediocre candidate heading a party of no ideas; Mitch McConnell being one of those no ideas.

I've read the comments here and am impressed that some fairly educated people can and will twist themselves in knots trying to defend the indefensible.

What if what was overheard wasn't about Ms. Judd but about a plot to kill or some overtly illegal act that, unless reported, might be carried out; the couple next to you in a cafe planning to kill a present spouse... then what?

Did you ever stop to consider, as another starting point, that the Ky. law is poorly written; so badly written in fact that it leans both ways?


Darnell Price said...

The overheard conversation, in the law. I have no idea how it would be worded and if the current laws express this, but it's the combination of a reasonable expectation of privacy (closed door) and the intentional recording and distribution that should be prohibited.

ed said...

@ Harold House

"What if what was overheard wasn't about Ms. Judd but about a plot to kill or some overtly illegal act that, unless reported, might be carried out; the couple next to you in a cafe planning to kill a present spouse... then what?"

It's called 'calling the police' you imbeclic twit.