Undercover videos of Republican Presidential Candidate Mitt Romney shot in May are now making their way around the internet. The footage was recorded at a private fundraiser in the home of Marc Leder in Boca Raton, Florida. Florida is a two party consent state which raises the question, is this a legal recording?
The Citizen Media Law Project describes Florida's two party consent law as follows:
Florida makes it a crime to intercept or record a "wire, oral, or electronic communication" in Florida, unless all parties to the communication consent.
Since the video was recorded secretly the person who made it most likely did not have the consent of those on the tape. That would appear to make the act of recording illegal in Florida.
However, it should be noted that Florida law makes certain exceptions, such as in the case when parties do not have a reasonable expectation of privacy in a conversation, like in a public setting.
The Citizen Media Law Project says this on the reasonable expectation of privacy:
Florida law makes an exception for in-person communications when the parties do not have a reasonable expectation of privacy in the conversation, such as when they are engaged in conversation in a public place where they might reasonably be overheard. If you are operating in Florida, you may record these kinds of in-person conversations without breaking the law. However, you should always get the consent of all parties before recording any telephone conversation and any in-person that common sense tells you is private.
Does the private residence which Romney's private fundraiser was held at constitute a public place where those being recorded might reasonably be overheard?
According to The Florida Bar on the issue of invasion of privacy, a person's home gets the highest protection from the courts. It states:
Taking photographs of a person or his property in a private place may be an invasion of privacy. Tape recording a person without his consent may invite damage awards, and, in Florida, also constitutes a crime. Sec. 934.03(2)(d), Fla. Stat. (1995).
Later, The Florida Bar goes on to raise the question in the case of a lawsuit: "Has the newsgatherer violated a "Sphere of Privacy" from which the plaintiff reasonably expected the press to be excluded"?
The federal court decisions in Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969) and Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971) arguably have established a federal right of privacy paralleling state privacy torts but distinct from the federal constitutional privacy right emanating from the fundamental choice concept. See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965). Under this theory, the newsgatherer is liable when he invades a "sphere of privacy" -- such as a person's home as in Dietemann -- which the person reasonably believes to be off limits to the news media.
There are several questions that arise from this incident which need to be answered. While the host of the fundraiser, Marc Leder, did invite the guests into his home, did he say cameras were off limits? If cameras were allowed, why is the camera hidden? Was this video recorded illegally under Florida law?