DeFede: Just a Misdemeanor?

David Markus has been kind enough to agree to debate the DeFede case. He puts his case at the Southern District of Florida Blog and concludes that DeFede didn’t commit a felony, and in fact isn’t guilty of much.

Having thought about it some more, I still have little doubt that, as I said yesterday, DeFede committed an understandable, but nonetheless actual, violation of Florida law when he taped Art Teele’s telephone call. Having read David Markus’s contrary view, I’m willing to admit, though, that there is an argument that the offense may be just a misdemeanor, not a felony. (In which case the Herald’s firing makes even less sense.) Unfortunately, it’s not as wonderful an argument as one might wish.

Mr. Markus, thinking like a good lawyer, argues that the state wouldn’t be able to prove three essential elements of a felony charge:

1. DeFede recorded Teele’s calls, without Teele’s consent.
2. DeFede did so for an illegal purpose or for commercial gain.
3. Teele had a reasonable expectation of privacy in the call.

(Note that what the state can prove beyond reasonable doubt, and what we as observers are entitled to believe is likely are not, and should not be, the same things; I was talking about the latter–Mr. Markus has quietly and understandably tried to move the goal posts.)

On the first point, I think DeFede’s own admissions make the case against him: it’s legal to tape with two-party consent; it’s also not against the policy of any newspaper I ever heard of. If in a hypothetical (and unlikely) prosecution, DeFede were to take the Fifth, as he’d have every right to do, I bet that any prosecutor could invoke a hearsay exception (ordinary course of business? admission against interest?) to get DeFede’s confession to his bosses into evidence.

The second point goes to whether it’s a felony or a misdemeanor — I’ll return to that below.

The third point is, I think, completely unpersuasive: in Florida we all have a legitimate expectation that our calls won’t be taped unless we consent. That’s the law. Even when talking to reporters. I grant you that not having Teele to put on the stand might make it harder for a prosecutor — which is one of may reasons why I’d doubt this ever goes trial. But I wasn’t arguing whether DeFede would get a record: I was discussing whether he broke the law.

That leads me to David Markus’s best argument: that DeFede only committed a misdemeanor at worst. Here he may have a point since the statue is more obscure than it should be.

Section 934.03(4)(a) states that, “Except as provided in paragraph (b), whoever violates subsection (1) is guilty of a felony of the third degree.” [And the relevant part of subsection (1) makes one who "Intentionally intercepts, endeavors to intercept, ... any wire, oral, or electronic communication" a felon.]

So it at all turns on the first exception in 934.03(4)(b):

If the offense is a first offense under paragraph (a) and is not for any tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense under paragraph (a) was committed is a radio communication that is not scrambled, encrypted, or transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of such communication, then:

1. If the communication is not the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication, or a paging service communication, and the conduct is not that described in subparagraph (2)(h)7., the person committing the offense is guilty of a misdemeanor of the first degree,

This is hard to parse, but a logic diagram may help:

IF

(1) [First offense] AND [Not for tortious or illegal purpose] AND [Not for purposes of direct or indirect commercial advantage or private commercial gain]
AND
(2) the wire or electronic communication … is a radio communication that is not scrambled or encrypted etc

THEN
(3) IF communication is not

(3a) the radio portion of a cellular telephone communication,
OR
(3b) a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit,
OR
(3c) a public land mobile radio service communication, or a paging service communication,

THEN
(4) the person committing the offense is guilty of a misdemeanor of the first degree.

I agree that DeFede’s act meets the test in (1). And it also clearly doesn’t meet any of the conditions in (3a), (3b) or (3c), so (3) is satisfied. The problem is, I think, that it’s pretty clear that we don’t even entertain the questions in (3) unless we first satisfy the condition in (2). And here there’s a problem. As I read it, (2) is satisfied if and only if the wire communication is an unscrambled “radio communication”.

Unscrambled it surely was, but is a telephone call a “radio communication” under section 934? Mr. Markus apparently believes that it is. Alas, on balance, I don’t think so. “Radio communication” is not defined in the statutory definitions, but “wire communication” is defined in 934.02(1) as

any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception including the use of such connection in a switching station furnished or operated by any person engaged in providing or operating such facilities for the transmission of intrastate, interstate, or foreign communications or communications affecting intrastate, interstate, or foreign commerce.

That definition pretty clearly includes a telephone call. Bereft of statutory assistance, we must rely on the ordinary meanings of the word “radio”. And try as I might, I can’t seem to get “radio communication” to mean “telephone call” — especially given the definition of a wire communication (“whole or part through wire or cable”). Rather, I think that radio broadcasts are electronic but not wire communications as contemplated in line (2) above.

Thus, at the end of the day, I have to say that I still think the taping was technically a felony; if I’m wrong about that it’s undoubtedly a misdemeanor, so in either case it was an illegal act.

NOTE: This isn’t legal advice. I am not a member of the Florida bar. Use duct tape for all your taping needs. See the general disclaimers.

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10 Responses to DeFede: Just a Misdemeanor?

  1. dsgolburgh says:

    I agree with Prof. Froomkin’s argument that we all have reasonable expectation of privacy with phone calls, but there must be some allowance for extenuating circumstances. In this case, the defendant may have been acting more by instinct then by reason. Again, the fact that he immediately turned over the tape, albeit after the tragedy occurred, should help persuade a jury that his intentions were just.

  2. dsgolburgh says:

    I agree with Prof. Froomkin’s argument that we all have reasonable expectation of privacy with phone calls, but there must be some allowance for extenuating circumstances. In this case, the defendant may have been acting more by instinct then by reason. Again, the fact that he immediately turned over the tape, albeit after the tragedy occurred, should help persuade a jury that his intentions were just.

  3. Buce says:

    Re the firing, hasn’t anyone else noticed how eager mainline media are to find someone they can fire to prove their moral bona fides? If they have a Jayson Blair on board, more power to them, but woe betide the poor part-time cooking columnist who avows that she tasted the recipe with cognac when in fact she used only brandy.

  4. paul says:

    Without knowing the precise preamble to the conversation, I don’t think we can assume an expectation of privacy in a phone call to a columnist whose known business is covering a group of people that includes the person on the other end of the phone line. Having been on both sides of that conversational state, I know that the privacy expectations have to be spelled out very clearly in order for any expectation to be reasonable.

  5. Paul Gowder says:

    I tend to agree with my namesake in the previous connent and disagree with Michael on that third element: the idea that a politician, mired in scandal, has an expectation of privacy in a telephone conversation with a journalist is a little far-fetched here.

    A bit more precision might be helpful. For an “expectation of privacy” to actually mean anything, it must have a more specific object than merely “the telephone call.” Because, of course, Teele didn’t have an expectation of privacy in the words he used as against DeFede, because he was disclosing them to DeFede, who could have perfectly permissibly hand-written them down and used them verbatim (non? First Amendment and all…). So his expectation of privacy must have been in something else. In what? In his tone of voice, as recorded? Yet again, however, DeFede could have easily written down the details of that. “His voice became very high-pitched, almost shrieking, when he discussed the allegations of…”

    In fact, on reading that statute, I wonder (without any knowledge whatsoever of Florida law) if Florida is *really* a two-party consent state, at least where one party is the recorder. The criminal provision you cite speaks of the predicate act as an “interception.” Can one “intercept” a call one is on?

    I think a more natural reading of the statute would be that a third-party has to get the consent of both parties to “intercept” and record, but one of the parties may record at will, both because it doesn’t constitute an “interception” and because one party to a phone conversation has no expectation of privacy as against the other party thereto.

    Looking over the statutes more closely, I find support for this position: 934.02(3) defines “intercept” with reference to “acquisition.” Clearly, DeFede had already “acquired” the contents of the conversation with Teele.

    That reading would also harmonize the duties of a conversation participant with the duties of an electronic connunication service provider, who, under 934.03(3)(b)(2), may divulge the contents of a connunication with only one party consent.

    Of course, I haven’t read the statute very carefully, I don’t have a Florida bar card either, and I haven’t even found the “expectation of privacy” section of the statute, so what do I know?

    But even if my read of the statute is wrong, I’d like to suggest that there might be a first amendment defense of some sort.

    (argh. this thing says my co[mm]ent has “questionable content.” Apparently, the questionable content is that sequence of three letters which is at the end of most business URLs. This is not going to be easy to remove… I’m going to coin a new spelling here: “connunication.” and “connent” ;-) )

  6. froomkin says:

    As written, the statute law holds that you “intercept” a conversation by having any device other than the receiving handset acquire the sounds. That’s why the courts had such a struggle to decide that having a human secretly listening in on an extension wasn’t a violation of the statute — because it’s so broad this was an arguable point. And in the process of twisting the statute to get that sensible and no doubt intended result, the courts then opened a hole that let Royal Health Care Services v. Jefferson-pilot Life Insurance in….

  7. thomas says:

    did teele have an expectation of privacy?

    all the accounts that i’ve read say that, according to defede,
    teele told him over and over “and this is off the record…”
    and things to that effect.

    but i agree that this could fall within the business exception to the 1-party recording rules.
    why not?

  8. Paul Gowder says:

    Yikes. I question the sanity of any law that distinguishes between a human being listening in on an extension, a reporter taking notes in pen and paper, and a reporter taking notes via a tape recorder.

  9. Paul Gowder says:

    I still think the word “acquisition” is vague enough to allow DeFede to wriggle out. Even if an “interception” involves putting the communication through any device other than a phone, it still requires an “acquisition,” and the plain meaning of “acquisition” is that a person who wouldn’t ordinarily have access to the communication gets it thereby. (It makes no sense to speak of a device “acquiring” something…) DeFede didn’t use his tape recorder to acquire the conversation, he used his ears to acquire it and used the recorder to archive what he’d already acquired.

    Now, if he’d installed the recorder on someone else’s line without both party consent, he’d actually be acquiring the conversation…

  10. paul says:

    In response to Thomas, the source saying “this is off the record” doesn’t necessarily mean diddly unless the journalist explicitly assents. (In this case, it may well have meant something either because there was a pre-existing relationship or because DeFede did explicitly assent; I’m not privy to that.) In a couple of the places where I worked it would be a running joke that you would call certain people (often from inside the beltway), identify yourself as a reporter, ask questions, get answers, and then hear at the end of the conversation, “You’re not going to print any of this, of course, are you?” It’s considered good form to explicitly decline to put material off the record or off attribution, but if you commit news in front of a reporter, what do you expect them to do?

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