The DeFede Case (Updated)

On Wednesday night, Art Teele, an important local political figure, shot himself in the lobby of the Miami Herald building, moments after asking a security guard to tell Miami Herald columnist Jim DeFede to relay a message to Teele’s wife: ”I love you.”

The shooting followed weeks (indeed months, or years) of mounting legal troubles for Teele, capped by the publication in the New Times, a local alternative weekly, of the most damning and the most salacious bits of police surveillance reports and interviews concerning Teele. (The documents were public records, not leaks, but somehow the Miami Herald hadn’t gotten around to doing much with them.) The reports detail a very convincing pattern of corruption and payoffs–all too believable given that Teele was involved with a local community redevelopment agency known for taking public money and producing little of value (except inflated land valuations for useless properties it purchased).

The New Times story also quoted from the police’s interview with an incarcerated male prostitute who made utterly uncorroborated and somewhat implausible allegations that Teele had been a repeat customer. The allegations struck me as implausible because the source seemed unable to provide a single corroborating detail, not even his own telephone number, and could list no identifying marks of his supposed bed partner, nor indeed relate anything about Teele that you wouldn’t have seen on TV. Nevertheless, coming on top of a sea of increasingly credible allegations of graft, they may have been the last straw.

In his last hours, Teele had several telephone conversations with Miami Herald columnist Jim DeFede, who incidentally is one of the very few regular Herald columnists always worth reading. DeFede and Teele went way back, ironically to when DeFede worked for the New Times. In one of those last talks, concerned that Teele was sounding unusually weird, DeFede turned on a tape recorder and recorded the call.

That recording was a serious no-no: Florida is a two-party consent state and (at least as general rule, see below) telephone calls may not be taped without the consent of both parties. After the shooting, DeFede, aware he’d broken the Miami Herald’s rules, confessed the taping to his bosses. The Miami Herald then fired DeFede immediately.

Enter the Southern District of Florida blog, with news and views:

Southern District of Florida: Journalists for DeFede: Peter Wallsten and Charlie Savage have started a blog called Journalists for DeFede. It’s an open letter now signed by a number of Herald employees and others journalists asking for the Herald to reinstate DeFede. The letter argues that the taping may not have even been a violation of law, citing to this post. Any thoughts? I’ve written a little about DeFede’s firing here.

Yes, I have a few thoughts.

Keeping in mind that I’m not a member of the Florida Bar, this it how it looks to me: Florida title XLVII, Criminal Procedure and Corrections, Chapter 934. Security of Communications makes the “interception” and recording of a telephone conversation a felony:

(3) “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.

(4) “Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, electronic, or oral communication other than:

(a) Any telephone or telegraph instrument, equipment, or facility, or any component thereof:

1. Furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or

2. Being used by a provider of wire or electronic communications service in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of her or his duties.

934.03. Interception and disclosure of wire, oral, or electronic communications prohibited

(1) Except as otherwise specifically provided in this chapter, any person who:

(a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication;

(b) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:

1. Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; …

(c) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(d) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; …

shall be punished as provided in subsection (4).

(4)(a) Except as provided in paragraph (b), whoever violates subsection (1) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 934.41.

(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, punishable as provided in s. 775.082 or s. 775.083.

As I understand it, the argument that DeFede acted legally is based entirely on one rather odd court decision, Royal Health Care Services v. Jefferson-pilot Life Insurance, 924 F.2d 215 (11th Cir. 1991). The case concerned the civil remedy provided by Chapter 934. According to the 11th Circuit, because the defendants routinely recorded all their calls via a device attached to a telephone extension, it was the extension, not the recorder, which was doing the “interception”. Furthermore, on the facts, that legitimate interception was in the ordinary course of business. As a result, the statute wasn’t violated, since the “interception” was authorized by the so-called ” business extension exception or the extension phone exception”.

I think this decision is quite likely wrong, as it almost writes the anti-wiretap rule out of the statute, at least for businesses, and does enormous violence to Florida’s strong and often-expressed public policy in favor of personal privacy. But no matter; suppose that this unusually odd decision is in fact correct. The civil and criminal parts of the statutes share the same definitions, so logically what applies in the civil context should apply in the criminal also. Does this get DeFede off the hook?

I think it does no such thing. In order for DeFede to take advantage of this very strained reading of the communications privacy law, he’d have to be able to argue that his taping Teele’s call was somehow “in the ordinary course of business.” And that, we know, is not the case: it is so far outside the bounds of his employer’s ordinary course of business that he felt a need to confess to them, and they then summarily fired him for it.

So much for the legal questions. Let me close by saying that I think the Herald acted in far too hasty a manner. DeFede ‘fessed up right away; had he kept silent no one would be the wiser. He made a mistake in a very stressful and unusual circumstance; the Herald’s precipitous action smacks to me not of a Caesar’s Wife standard, but rather of a paper that was happy to rid itself of one of perhaps two or maybe three of its writers (Fred Grimm and the increasingly infrequent Carl Hiaasen) who get under the establishment’s skin. DeFede recently angered the local Cuban establishment with a reportorial trip to Cuba; it’s widely believed that the increasingly anodyne Herald, complete with incredible shrinking news hole, lives in fear of the local Cuban power structure – - the unseemly speed of this firing will do nothing to dampen that belief.

PS. The headline at SDFL Blog Is DeFede a Criminal? makes me want to add that no prosecutor with a grain of sense should bring charges on this one. David Markus (who turns out to be a former UM Law student, one who transferred to Harvard after his first year) agreed earlier today to debate the issue; look out for his reply soon.

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4 Responses to The DeFede Case (Updated)

  1. James Wimberley says:

    Is there an analogy with the famous thought-experiment exception to medical confidentiality, the doctor who sees her patient with a nasty infectious disease about to jump into a swimming pool and can only stop him by shouting a warning? To justify the breach of medical confidence, there has to be an imminent and grave threat to third parties, and the breach of confidence has to the only way of taking effective action to block the threat. Paradoxically, the analogy suggests that DeFede’s position would be stronger if he’d broken the confidence by acting on the information, say by calling Teele’s wife.

  2. anon says:

    Why does the legality of the act matter? If DeFede has irrevocably harmed the Herald’s ability to get political insiders (and others) to be willing to speak “off the record”, then why shouldn’t they fire him as a signal to all “deepthroats” that their conversations will be kept secure?

    I think Mr. Wimberley asks a different question. There is a difference between calling the wife and saying “hey I think your husband may be losing it”, and making a recording that could potentially be used to someday embarass him (assuming he hadn’t killed himself). A tape is proof of a conversation and its contents; relaying a conversation orally is only proof in so much as one believes the speaker, and thus never absolute proof that the conversation took place.

  3. doran says:

    Anon has a good point about relaying a conversation orally. My recollection of a telephone conversation, conveyed to you from my memory or my notes, would not be nearly so persuasive as a tape or digital recording of the conversation. Still, privacy interests are compromised in both cases. A strict reading of the statute, or maybe a strict application, would have prevented DeFede from revealing the contents of the conversation to any other person. Surely that was not intended. So, if DeFede had put Teele on a speaker phone would that have been a violation? If, hearing Teele on a speaker phone, could a court reporter have made a short-hand or typed transcript of his remarks without offending? If DeFede had held the earpiece of his telephone to the ear of a court-reporter, could the court-reporter have made a transcript without committing an offense? Wasn’t there a similar case out of Virginia a few years ago, where some people driving around in their car picked-up a cell-phone conversation between a number of US Representatives, maybe including the Speaker of the House at that time (Gingrich?), recorded that conversation and turned the recording over to a newsperson? And were they not successfully prosecuted under federal law?

  4. DOM says:

    I respond to the illegality argument at http://www.sdfla.blogspot.com

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