Earlier today I alleged that James O'Keefe deserves to be thrown in a Maryland State penitentiary for planning to illegally record a conversation with a correspondent from CNN. I may be wrong. I based this opinion on my reading of MD v. Graber, a case decided two days ago which brought the Maryland wiretap law to my notice. Though James O'Keefe may still have violated the law, the Maryland case law is not as clear on whether he is likely to be convicted if indicted as I had initially anticipated.
Upon review of the relevant case law, specifically a civil suit Hawes v. Carberry, 103 Md. App. 214 (1995), I discovered that it may be more difficult to prosecute O'Keefe than I had originally envisioned. In Hawes, the judge reversed a lower court decision which awarded damages to Mr. Carberry on the basis that Mr. Hawes illegally recorded a private conversation on Mr. Carberry's doorstep. While the Hawes decision reinforces my analysis of what constitutes an illegal taping as far as the requirements of surreptitiousness, one-party consent, and the expectation of privacy, the judge reverses the decision because Mr. Hawes's action was not sufficiently "willfull." Let's throw the old relevant sections up on the big board again:
§ 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;
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:
The Washington Post blog is reporting a strange story out of Maryland's Harford County in which a motorcyclist was jailed for recording a traffic stop by an plain clothes police officer. The Harford County state's attorney, Joseph Cassilly, charged the motorcyclist under Maryland's anti-wiretapping law after Graber posted the video on youtube, and obtained a grand jury indictment for recording the state trooper without consent. The charging documents included three counts of violating the MD wiretap law: (1) Unlawful interception of an oral communication in voiolatino of CJ 10-402(a)(1)... (2) Unlawful disclosure of an intercepted oral communication in violation of CJ 10-402(a)(2)... (3) Unlawful possession of a device "primarily useful for the purpose of the surreptitious interception of oral communications" in violation of CJ 10-403(a).
