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Dec. 15 2010 10:20 AM

The battle over the right to record

A public-interest law firm representing conservative activist James O’Keefe is challenging the California law that bars people from secretly recording private conversations.

In 2009, O’Keefe made national headlines when he and a female cohort posed as a pimp and prostitute and visited offices of the nonprofit group acorn around the country. Using a hidden camera, they captured footage that made it seem like acorn workers were collaborating in human trafficking. California attorney General Jerry Brown granted O’Keefe immunity from the state’s privacy laws in exchange for the chance to review the footage.

Brown’s investigation found that Juan Carlos Vera, a National City acorn employee fired after the tapes aired, did nothing wrong and that the video had been edited to distort what happened. In July, Vera filed a $75,000 lawsuit against O’Keefe under the Invasion of Privacy Act, which requires all parties in a confidential conversation to consent to a recording.

The Washington, D.C.-based Center for Individual Rights is defending O’Keefe in several lawsuits. In California, CIR General Counsel Michael Rosman is prepared to argue that the law infringes on the press’ freedom to gather information. He adds that the law doesn’t prevent anyone from talking or writing about confidential conversations, so it really only serves to shield liars.

“I can say, ‘Dave misquoted me,’ and if you don’t have a recording, I can say that with impunity,” Rosman says. “Basically, I have the right to lie about this conversation. That’s what the statute is trying to protect.”

David Blair-Loy, legal director for the ACLU of San Diego and Imperial Counties, which litigates for privacy as well as free speech, doesn’t see that argument working.

“The California Privacy Act is carefully limited to confidential communications,” Blair-Loy writes via e-mail.

“The First Amendment protects the right to record events in public but does not authorize invasion of legally protected privacy rights…. Both free press and privacy rights are constitutionally protected and must be balanced. Occasionally, the right to privacy prevails.”

California broadcasters bemoan the law since it bans an investigative technique used frequently in other states. Greg Dawson, news director for NBC 7/39, says he’d like to do consumer reporting using hidden cameras, such as evaluating whether repairmen are appropriately repairing furnaces at honest prices.

Dawson notes the law applies only to audio, so secret video can be useful. David Gotfredson, an investigative journalist for Channel 8, says a reporter can get away with hidden recordings, as long as the conversations occur in public.

“Right now, we kind of learn to work around it,” Gotfredson says. “If we’re trying to do an investigation, we might do it in a public place, where there are people around, or an outdoor setting where there’s not an expectation of having a private conversation.”

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