Orin Kerr
The Volokh Conspiracy
4/12/2013
I blogged below about whether recording the McConnell meeting violated federal law; in this post I’ll offer some thoughts on whether it violated state law. With the caveat that I had never looked at Kentucky’s surveillance statutes until an hour ago, my sense is the answer is pretty unclear from the sparse sources available.
Kentucky’s eavesdropping statute is Ky. Stat. 526.020, and its relevant text is extremely simple:
A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop, whether or not he is present at the time.
“Eavesdrop” is then defined in Ky. Stat. 526.010:
“Eavesdrop” means to overhear, record, amplify or transmit any part of a wire or oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device…
…One intriguing clue is the Kentucky Crime Commission commentary that “[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.” 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. That distinction might explain the Ky AG opinion, which (form the headnote, at least) appears to distinguish between listening live and making/using a recording. But it’s hard to know without seeing that opinion,..
The complete article is at The Volokh Conspiracy.
H/T Althouse who also posted, Who secretly recorded the McConnell campaign? and “No one would be in trouble over this scandal if only David Corn had the news judgment to recognize a nonstory.”
Related: Soviet Agent Award for Mother Jones Reporter
David Corn, the liberal writer and MSNBC analyst who based a story about Republican Senator Mitch McConnell on a secret and possibly illegal tape recording, is scheduled to accept an award named for Soviet agent of influence I.F. Stone.
The identification of Stone as a Soviet agent is not in serious dispute, except among his most loyal and sycophantic followers…
…In addition to the emerging controversy over the I.F. Stone award, Mother Jones is trying to deny that it had any role “in the making of the tape” of Sen. McConnell and his aides, and insists that “it is our understanding that the tape was not the product of any kind of bugging operation.”
But the magazine did not explain how it knew any of this, or what its “understanding” was based on.
It appears the magazine is stonewalling an inquiry into the apparently illegal bugging and it is not at all clear if Corn will cooperate with the FBI probe…
Read the whole thing!
Update: Speaking of bitter & sweet
…This time around, Corn fetched fool’s gold and seemed not to notice the difference. He labored mightily to depict the proceedings on the McConnell recording as a scandal. In the meeting, Senator McConnell and his staff can be heard committing politics, exploring weaknesses in the possible candidacy of Ashley Judd. Corn presented the meeting as something of a scandal: “McConnell and aides weighed using Judd’s mental health and religion as political ammo.”
Why, yes, the McConnell team had gone so far as to comb through Judd’s memoir, All That Is Bitter & Sweet, looking for the good stuff and laughing out loud. How low can they go? Corn’s heroes would never do anything like that!…
Update 2: McConnell Eavesdropper’s Past: Dem Politics, Trespass Arrest, Occupy
