Did Don't-Touch-My-Junk Guy Have the Right to Record?

Did Don't-Touch-My-Junk Guy Have the Right to Record?
November 19, 2010
by Randy Dotinga
Voice of San Diego

By now, much of the nation has heard about how an Oceanside man took a stand against intimate airport security checks last weekend at Lindbergh Field. As his cell phone surreptitiously recorded his conversation with a security officer, he entered a new phrase into the American lexicon: Don't touch my junk.

"If you touch my junk, I'm going to have you arrested," declared 31-year-old John Tyner when told he was about to undergo a "groin check." Tyner's iPhone captured his conversations with security officers, apparently without their knowledge, and the undercover video became an internet sensation.

It looks like Tyner won't face a $10,000 fine from the Transportation Security Administration for failing to finish the airport screening process. But did he violate the state's privacy laws?

California has some of the nation's toughest regulations regarding the recording of private conversations whether they're in person or over the phone. With rare exceptions, people can't record the conversations unless both parties give permission, as a spokesman for Governor-elect Jerry Brown learned after secretly taping calls with reporters last year.

However, not every conversation is considered private under the law, said Michael Niborski, a Los Angeles media attorney.

"The key question is whether the person who's being recorded has an expectation of privacy," he said.

In a 1999 case, a state appeals court ruled that undercover journalists from Dateline NBC had a right to videotape a conversation at an outdoor restaurant patio without consent. The court ruled that two people who took part in the conversation had no right to a private conversation in a public restaurant. Nor, it ruled, was the taping "highly offensive to a reasonable person."

In another case, a court said a reporter had the right to secretly tape record conversations in a busy dial-a-psychic call center, Niborski said.

What about a security checkpoint at Lindbergh Field? Is it private?

"Given the fact that there are cameras and recording devices in airports and TSA officials are probably used to having their actions be recorded, the officials probably do not have an expectation that what they say and do is confidential," Niborski said.

However, he said, "if they were in a back room having a private discussion and the guy had his phone turned on in his briefcase, it would be a slightly different analysis."

The fact that the security officers work for the government is another point in Tyner's favor, said Kimberley Isbell, a staff attorney with the Citizen Media Law Project. Recently, a judge in Maryland — where Bill Clinton sex scandal figure Linda Tripp got in trouble for secretly taping phone conversations — ruled that police officers could be recorded during traffic stops, she said.

There's yet another reason that Tyner may be in the clear, said Terry Francke, head of the Californians Aware watchdog organization. "It would be particularly cheeky, if you'll pardon the expression, for TSA officials to assert their privacy rights to talk about groping airline passengers' privates."

Conservatives back away from James O'Keefe now that he's trying to do his illegal recording on federal property

Patrick Semansky/Associated Press. The New Orleans federal building where four were arrested in Senator Mary Landrieu's office.

See all all James O'Keefe/Hannah Giles and ACORN stories in CVESD Reporter blog.

ACORN foe tweeted about planned sting of Sen. Landrieu's office
By Carol D. Leonnig
Washington Post Staff Writer
Thursday, January 28, 2010

...Michelle Malkin, a conservative pundit and syndicated columnist, wrote late Tuesday that exposing wrongdoing is not an excuse to break the law and that O'Keefe's alleged actions should be taken seriously.

"Let it be a lesson to aspiring young conservatives interested in investigative journalism: Know your limits. Know the law," she wrote. "Don't get carried away. And don't become what you are targeting."

Rick Moran, a blog talk-radio host, called O'Keefe "a glory hound." ...

Transcript shows what ACORN worker Juan Carlos Vera really said to Hannah Giles and James O'Keefe

See all ACORN posts in this blog.
See all ACORN posts in CVESD Reporter blog.

[From the transcript:

Juan Carlos: "...[Th]is is you say private... because we work before with the lawyers."...

O'Keefe: You're working with the prosecutors?

Juan Carlos: Yeah.

O'Keefe: Well then that's not good.

In the dozen pages at the beginning of the transcript of the Giles-O'Keefe-Vera conversation at the National City ACORN office, the fake pimp-prostitute pair did all the talking about prostitution, and ACORN employee Juan Carlos Vera responded with "yeah" and "okay," as if he were taking it all in. But Juan Carlos' English isn't so great, and when he finally seemed to understand what was going on, he said he would consult with lawyers and contact the visitors by email. He even mentioned that he worked with prosecutors.

Throughout most of the conversation, Juan Carlos spoke at cross-purposes to the visitors, giving information about ACORN seminars.

On page 12 O'Keefe prompts Juan Carlos with suggestions about tax fraud. Juan Carlos continues to say "yeah", but his understanding of the questions is in doubt because he clarifies the issue by saying, "Because you need a house."

O'Keefe tries again to get Juan Carlos to agree that O'Keefe's tax fraud ideas are good, and Hannah also tries to get Juan Carlos to repeat what James has said. Juan Carlos responds, "I think it's good, too, because we have two lawyers working for our program--and if you're interested come to our seminar" (pages 12-13) Clearly, Juan Carlos is not on the same page as James O'Keefe and Hannah Giles.

On page 13 Juan Carlos goes on, "If you have your own business you need to prove your income."

On page 13 O'Keefe to Hannah, "...and the tax form is something so I'm explaining to him [Juan Carlos] is something you can classify not as prostitution but as performing arts. That way we can clear that first hurdle. We can declare all income."

Juan Carlos, as is his habit, responds with "yeah." But did he understand? Did he agree? Or was the "yeah" actually a reflex response to acknowledge that O'Keefe had said something and Juan Carlos was trying to keep up with the conversation? Fortunately, Juan Carlos explains his position clearly in the next exchange.

O'Keefe: Do you think that's something we can do?

Juan Carlos: The problem first time buyers is good because you never have a house before.

Clearly, we now know what Juan Carlos is trying to tell O'Keefe. He's trying to tell him how to buy a house.

Page 14

O'Keefe: Can this be a legitimate business? This prostitution?

Juan Carlos: You need to check...You need to check. You need to check. Because the program for first time buyers is for the people that never have a house.

O'Keefe says there will be 12 underage girls. [I doubt that a limited speaker is going to understand the word "underage." It's not usually found in your beginning English instruction. The word was probably Greek to Juan Carlos. Also, I don't remember seeing the word "prostitution" in beginning English instruction.]

Juan Carlos says: they gonna be probably 4 or 5 persons. [Juan Carlos is clearly not in sync with the idea of twelve girls.]

Hannah asks, "Could they be like my sisters or something like that?" [Of course your sisters can live with you, Hannah!]

O'Keefe: Could we get a child tax credit for them? Claim them as dependents?

Juan Carlos: Yeah. [My guess is that Juan Carlos thought they were talking about actual siblings.]

For the next few pages Hannah and O'Keefe do all the talking again, and Juan Carlos responds with his usual rote response of "okay."

Page 19

Juan Carlos understands that El Salvadoran girls are coming: "What day are they coming?" He is told they'll come on Saturday.

But Juan Carlos has a feeling that these people have wandered into the wrong office.

Juan Carlos: So you never heard for this organization? ACORN?...Okay, let's do this. Let me see, let me see anything about it. See and let me contact to you. Because this program is, this Saturday happen?

But O'Keefe doesn't want to be contacted later, he wants to talk about it now. Juan Carlos tries to get an email address, but doesn't succeed until page 23.

On page 21 the talk turns to where each of them comes from. O'Keefe is from back east, which, Juan Carlos notes, is too cold. Juan Carlos is from Mexico City, and he is a lawyer in Mexico.

On page 24 Juan Carlos says, "...I want to call you tomorrow." [I think that's what I'd say, too, in an effort to get rid of these bizarre people.]


Pages 25-26

Juan Carlos wants to explain that lawyers will be involved: "...dis is you say private...I ah because we work before with the lawyers."...

O'Keefe: You're working with the prosecutors?

Juan Carlos: Yeah.

O'Keefe: Well then that's not good.

Juan Carlos:...I think we want to send an email to you.

Hannah: Honestly I don't feel very comfortable right now. I just gave you a bunch of information and I don't know if we trust you like...

Juan Carlos: No, we help people. [Juan Carlos is trying to get information about Hannah and O'Keefe, not scare them away.]

Page 27

Juan Carlos tries to get a location for where the girls will be on Saturday. He recommends that the girls go to Tijuana where Juan Carlos has a lot of contacts. [My guess is that he wants to help the girls, to prevent them from falling under the control of unscrupulous people like Hannah and O'Keefe.]

Page 28

[Now we find out how much Juan Carlos understood of the earlier conversation.]

O'Keefe: There's twelve girls but they're like there's like thirteen to fifteen years old.

Juan Carlos: Oh, yeah?...I want to contact you now only for email.

Hannah and O'Keefe keep talking, but Juan Carlos no longer responds with his reflexive "yeah". Instead he repeats, "I going to contact you by email."

O'Keefe apples pressure: Just give me your cell phone number.

Juan Carlos complies, but says, "Well it's better I can send you an email."

Couple illegally records conversation and is charged with a crime--but it's NOT Hannah Giles and James O'Keefe

Hannah Giles and James O'Keefe aren't the first to secretly and illegally record a conversation involving someone they disliked politically (ACORN workers). The big difference between this couple and Alice and John Martin is that the Martins didn't set up the conversation. They just happened upon it accidentally.

See all ACORN posts.


Florida Couple Are Charged In Taping of Gingrich Call
By JERRY GRAY
April 24, 1997

The Justice Department today filed charges against a Florida couple who said they had intercepted and recorded a conference call last December among Speaker Newt Gingrich and other Republican leaders.

The Federal authorities in Jacksonville, Fla., announced this afternoon that the couple, John and Alice Martin, had been charged with an infraction, violating the Communications Privacy Act by using a radio scanner to intercept the radio portion of the conversation. It is the mildest criminal charge the couple could face in the case and carries a maximum penalty of a $5,000 fine.

The Government said the Martins had agreed to plead guilty to the charges, and said the couple would cooperate with a continuing investigation into how a recording of the conversation wound up in the hands of a New York Times reporter.

The conversation the Martins taped took place on the same day Mr. Gingrich admitted he had violated House ethics rules by failing to get adequate legal advice on the use of tax-exempt money and then giving the House ethics committee inaccurate information in its investigation. During the call, the Speaker and several colleagues discussed how best to handle the political fallout of the ethics charges.

After it was made public, Democrats complained that the call had violated a plea bargain of sorts that Mr. Gingrich made with the committee, in which he had agreed not to rally opposition to the committee's decision to reprimand him. Republicans said a transcript of the call shows just the opposite, that the Speaker was keeping the agreement.

A Republican leader at the center of the case said he was pleased with today's action, but called Mr. and Mrs. Martin ''patsies.'' Republicans have said they believed that the Martins, who are Democrats, had been used by their party's leaders for partisan purposes. ''I won't be satisfied until every guilty party is brought to justice regardless of their political affiliations or position of influence,'' said Representative John A. Boehner, the chairman of the Republican Conference. ''Anyone who knowingly accepted the tape and passed it along to the press is also guilty.''

Mr. Boehner was driving in Florida on Dec. 21 when the Martins' police scanner picked up signals from the cellular telephone he was using in a call with Mr. Gingrich and other Republicans, including the House majority leader, Dick Armey of Texas, and Representative Bill Paxon of New York.

Charles R. Wilson, the United States Attorney for the Middle District of Florida, said there was no evidence that the Martins intended to use the conversation for illegal purposes or financial gain.

Mr. and Mrs. Martin said at a news conference on Jan. 13 that they had taped the call when they recognized Mr. Gingrich's voice because they had a feeling it was historic. The couple said their Congresswoman, Representative Karen L. Thurman, a Democrat, suggested they give the recording to the senior Democrat on the House ethics committee, Representative Jim McDermott, and that they did so.

The tape caused an uproar on Capitol Hill after The New York Times reported on Jan. 10 that a couple had intercepted the conversation and that a Democratic House member who was hostile to Mr. Gingrich had made the tape available to the newspaper.

Newt Gingrich, like ACORN workers, was secretly recorded in 1997; the result was charges against couple who made recording

If you illegally record Newt Gingrich talking about his deal with the House ethics committee, you get charged with a crime. Alice and John Martin found this out in 1997.

But what happens when you illegally record ACORN workers? We'll have to wait and see.

See all ACORN posts.


At the New Frontier of Eavesdropping
The New York Times
January 19, 1997
By John Markoff

If only Representative John A. Boehner of Ohio had
prevailed upon his wife to buy a digital cellular phone
instead of a conventional analog model. Then, while
cruising past the waffle shop in Lake City, Fla., John and
Alice Martin would have merely heard static on their Radio
Shack scanner instead of House Speaker Newt Gingrich.

The Florida janitor and his wife, whose recording of the
Speaker's conversation with Mr. Boehner and some other
Republican colleagues set off a fight in the House ethics
committee last week, inadvertently drew national attention
to the ease with which it is possible to eavesdrop in the
information age. They also wrote a new chapter in the
high-tech spy-vs.-spy war that is as old as American
communications technology itself...







Alice and John Martin were charged with illegal recording of a conversation they overheard of Newt Gingrich discussing a deal he made with the House ethics committee. McDermott was on the ethics committee that investigated Newt Gingrich.



Speaker Phone
Jim Lehrer News Hour
January 14, 1997
PBS

...ALICE MARTINE: ...Mr. McDermott... we told him we had something to turn--we told him we had something to turn over to the Ethics Committee, and he asked us who we were. He took the envelope in his hand and he felt where the tape was, and he said he would listen to it. And then he asked if there was any way to get in touch with us. And so my husband gave him one of his STPNEA cards, and he said, thank you, and we said, thank you, and we left.

KWAME HOLMAN: Two days later the contents of the tape were on the front page of the "New York Times." The tape potentially could cause problems for Newt Gingrich, who had made a deal with the Ethics Committee not to orchestrate a response to its charges. But the tape might cause problems for McDermott as well because federal law prohibits intentionally intercepting telephone calls or intentionally disclosing their contents. Late this afternoon McDermott announced he will recuse himself from any further work on the Gingrich ethics matter. As for the Martins, they too could be prosecuted for their actions...



NEWS REPORT ABOUT THE TAPE

...DAVID BANISAR: It's not only illegal to intercept the conversation but it's also illegal under a different provision of it to disclose that conversation once you listen to it.

CHARLAYNE HUNTER-GAULT: You mean to turn it over to somebody else?

DAVID BANISAR: Right. To make a recording and to give it to somebody, or to even repeat what was said on that conversation is a violation.

CHARLAYNE HUNTER-GAULT: And to record it--

DAVID BANISAR: Yes.

CHARLAYNE HUNTER-GAULT: --also?

DAVID BANISAR: That's also a violation.

CHARLAYNE HUNTER-GAULT: And what about the people who receive the contents of it, are they covered under this law as well?

DAVID BANISAR: There's not a specific provision that prohibits you from receiving an illegally recorded phone call, but if you disclose it again, you're then also covered under the law.

CHARLAYNE HUNTER-GAULT: In effect, the person who receives it, if he then or she then discloses it, that's also illegal?

DAVID BANISAR: Right. If you throw it in the garbage, it's probably not a violation, but if you were to say give a transcript of it to the "New York Times," it would probably be a violation...

Verizon internal affairs investigation re Obama snooping leads to firings

It turns out that Verizon is tough on employees who break the law. Compare this story to the Sheriff of Santa Barbara, who is protecting a deputy who criminally abused his snooping privileges, and a commander who covered up for the deputy.


Verizon fires workers who snooped on Obama cell records
ZD Net Government
by Richard Koman
November 23, 2008
Red-faced Verizon Wireless has fired an undisclosed number of employees who couldn’t resist the chance to peek into Barack Obama’s cellphone records, CNN reports.

It was an old, flip-top phone, not his famous BlackBerry, and the account had been inactive for months. No text messages or voicemail contents could have been accessed. The employees were satisfying “idle curiosity,” a source told CNN, and the employees were not authorized to access customer records.

Verizon said, in an internal memo, that it has launched an internal investigation into whether the records “of our customer had in any way been compromised outside our company, and this investigation continues.”

The company has also notified federal law enforcement agencies.

While this appears to be little more than a case of bad behavior, it does highlight again the issue of telecom spying –and sharing with the NSA – on customer data. Obama supported legislation giving telecom companies immunity from lawsuits for such transfers.

Sheriff Bill Brown, won't you please ask Commander Sam Gross to cough up these records?

Photo Sheriff Bill Brown of Santa Barbara

Eleven days ago, I talked to Commander Sam Gross of the Santa Barbara Sheriff's Department, on November 3, 2008. He said he would accept mail service of
my subpoena for documents, but added "that doesn't mean that we'll honor the subpoena."

No, apparently not.

And it turns out that the Santa Barbara sheriff is also pretending that it didn't receive the subpoena. Today I was told that Sam Gross is not available, and the records supervisor is not available, and nobody knows when the records supervisor will be available, and the supervisor does not have an assistant who could answer the simple question: "Did you receive the subpoena?"

I was told to fax the subpoena, but the fax wouldn't go through.

I'm starting to get the feeling that the Sheriff of Santa Barbara doesn't want me to have these documents. Hmmm. Is it possible that this is the reason he wants to keep those documents hidden?