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:
(1) [First offense] AND [Not for tortious or illegal purpose] AND [Not for purposes of direct or indirect commercial advantage or private commercial gain]
(2) the wire or electronic communication … is a radio communication that is not scrambled or encrypted etc
(3) IF communication is not
(3a) the radio portion of a cellular telephone communication,
(3b) a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit,
(3c) a public land mobile radio service communication, or a paging service communication,
(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.