James O'Keefe Violates MD Law

UPDATE: In light of a circuit court's 1995 decision about the meaning of "willfully", it is not as clear as I present in this article that James O'Keefe would necessarily be convicted if tried under the wiretap law. Here I discuss the possibility that he gets off, but still think the statute and case law supports my points here, if slightly less strongly. I apologize if anyone assumed the below was a complete account of the issues at hand in the wiretap law.

CNN was apparently almost the victim of an elaborate hoax by Mr. O'Keefe, the rather silly and thoroughly dishonest play actor. Emails from Mr. O'Keefe to conservative activists outline his plan to lure CNN correspondent Abbie Boudreau onto a boat laden with sexually suggestive props and record the event without her consent.

Now it seems to me that the Maryland law prohibiting wiretapping (discussed here yesterday) would have been applicable, and would have prohibited Mr. O'Keefe's plan. The boat upon which Mr. O'Keefe endeavored to record a conversation was docked within the state of Maryland on the Patuxent River, St. Mary's County. Let's throw the relevant statute up on the big board:

§ 10-402 (a) Except as otherwise specifically provided in this subtitle, it is unlawful for any person to: (1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communicaton; (2) Willfully disclose, or endeavor to disclose, to any other person the contens of wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle, or (3) Willfully use, or endeavor to use, the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.

(b) Any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than 5 years or a fine of not more than $10,000 or both.

It is worth reiterating that this does not apply to all recordings of an oral communication, but that the definition of oral communication in the statute requires that the conversation be private. A conversation within the confines of a boat certainly seems to be private, and a person engaging in one would reasonably expect that anything said in such a communication to be private. The statute also does not allow one-party consent; unlike the federal wiretapping statute, all parties to the conversation must be knowledgeable of and consent to the recording.

It would appear that James O'Keefe has broken a Maryland law. I certainly hope that future-felon O'Keefe will (a) cease from his current occupation of slandering people with whom he disagrees or (b) face criminal penalties or (c) both.