Posted on 09/21/2009 3:08:27 PM PDT by jeffq73
A spokeswoman for Attorney General Doug Gansler said the probe will "involve everything," although she declined to say whether it includes the videos, which could constitute a violation of Maryland's two-party consent law.
The article mentions that Gansler asked permission to initiate the investigation from Governor Martin O'Malley, whose office made the announcement via a press release. Neither O'Malley's or Gansler's website has a news release or other announcement about the ACORN probe as of yet.
ACORN's spokeswoman told the Sun they "welcome" the investigation as a way to clear their name.
Previously, Gansler had said the ACORN videos made in Baltimore “are no more relevant to us…than a murder that takes place in Florida..."
Gansler also previously refused to remove an ACORN link from his office website. Local State's Attorney Patricia Jessamy refused to investigate ACORN, saying any potential evidence in the video may have been illegal obtained, and threatened to prosecute the makers of the video.
You cannot be convicted of violating the title of a statute.
How does this law not violate freedom of the press?
ALL investigative reporting does the above. And, I’d think that Acorn accepting government funds renders any privacy null and void.
No, hey - I get it. You're arguing that the Maryland Electronic and Surveillance Act doesn't in fact make it illegal to record a two-party conversation without both parties consent. Instead, you believe that the Act makes it illegal - according to the statute - to quote a conversation you had with anyone.
And, even if it does make it illegal to record a two-party conversation without both parties consent, that it's only illegal if it's only an audio recording, sans any kind of accompanying video. Good luck with that, counselor. You're going to need all the luck you can at trial.
Once again, reductio ad absurdum. But, you should make a fortune in your new criminal defense practice in the state of Maryland.
I'm not arguing anything. I don't see the prohibition in the statute, nor do i see the elements of the crime you describe.
The same way the 1st Amendment doesn't give Mike Wallace the ability to break into your home and rifle through your desk. The 1st Amendment isn't a license to break or violate other constitutional or statute rights. It only (in this context) keeps the government from persecuting you for what you say, print or otherwise publish. Big difference.
Many states don't have laws that limit the recording of two-party conversations with only one party consent. But, Maryland is one of those states that does preclude such a transaction. What these kids did was clearly against the law in the state of Maryland. Will they get prosecuted for it? Not in a thousand years. But, because what they did was illegal, it also keeps law enforcement from using the tapes in a prosecution of the ACORN employees.
This is one reason why the cops and the DAs don't like it when civilians - including the press - go poking around their crime scenes, and investigations in general. Usually, whatever they recover ends up benefiting the accused and not the state, contrary to what you've seen on T.V.
The question came up, in the thread and in the story, if the tapes can used against ACORN themselves. And, I said, "Not in the state of Maryland". And, I went on to explain the legal concept of "Fruit of the Poisoned Tree".
Clearly?
I've asked you several times to show me in the statute itself exactly what they did that is prohibited in the statute? You can say that the law was intended to prohibit recording conversations but I can't seem to find that language in the statute.
Pretend you're the prosecutor and you are going to issue an indictment. What law did they break and what are the elements of the law that they violated and what is the proof that they violated this statute?
Put it in words Mr. Prosecutor.
You have to read the whole statute...
Maryland Courts and Judicial Proceedings Section 10-402
It's quite clear. Incidentally, this isn't just my opinion. It happens to be the opinion of the Reporter's Committee for Freedom of the Press (www.rcfp.org), that doesn't like the MD statute for this very reason. This is what they say on their own website...
"Under Maryland’s Wiretapping and Electronic Surveillance Act, it is unlawful to tape record a conversation without the permission of all the parties. See Bodoy v. North Arundel Hosp., 945 F.Supp. 890 (D. Md. 1996). Additionally, recording with criminal or tortuous purpose is illegal, regardless of consent. Md. Code Ann., Cts. & Jud. Proc. § 10-402.Disclosing the contents of intercepted communications with reason to know they were obtained unlawfully is a crime as well.
Violations of the law are felonies punishable by imprisonment for not more than five years and a fine of not more than $10,000. Civil liability for violations can include the greater of actual damages, $100 a day for each day of violation or $1,000, along with punitive damages, attorney fees and litigation costs. To recover civil damages, however, a plaintiff must prove that the defendant knew it was illegal to tape the communication without consent from all participants. MD. Code Ann., Cts. & Jud. Proc. § 10-410.
State courts have interpreted the laws to protect communications only when the parties have a reasonable expectation of privacy, and thus, where a person in a private apartment was speaking so loudly that residents of an adjoining apartment could hear without any sound enhancing device, recording without the speaker’s consent did not violate the wiretapping law. Malpas v. Maryland, 695 A.2d 588 (Md. Ct. Spec. App. 1997); see also Benford v. American Broadcasting Co., 649 F. Supp. 9 (D. Md. 1986) (salesman’s presentation in stranger’s home not assumed to carry expectation of privacy).
The Court of Special Appeals of Maryland held that because states are at liberty to adopt more restrictive provisions than those contained in federal law, the secretary-treasurer of a local union who recorded conversations between himself and management representatives could still be prosecuted under the state statute, even if his conduct was arguably protected under the National Labor Relations Act. Petric v. State, 504 A.2d 1168 (Md. Ct. Spec. App. 1986).
It is a misdemeanor to use a hidden camera in a bathroom or dressing room. It is also a misdemeanor to use a hidden camera on private property “for purposes of conducting deliberate, surreptitious observation of a person inside the private residence,” or in a private place with “prurient intent.” Md. Crim. Law §§ 3-901, -902, -903. A person who is viewed in violation of these statutes has a civil cause of action. The court may award actual damages and reasonable attorney fees. A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding one year or a fine not exceeding $2,500 or both."
Asked and answered.
I guess you can’t point to the language in the statute to compose your indictment, eh?
Objection overruled.
The same thing was said about the tapes of Lewinsky admitting perjury & lascivious behavior by Clintoon. The same kind of trolls would talk about the evidentiary value and admissible evidence.
“No controlling legal authority”.
They’re shining examples of why lawyers have such a (deserved) bad name. Whether they’re actual lawyers or not. And they don’t like being called “lawyhers”, they’re “Attorneys”!
1. Does ACORN have a reasonable expectation of privacy as to oral communications made by its employees to members of the general public in an office to which the general public has free access and is invited to enter during normal business hours?
2. How exactly does one “intercept” an oral communication? That is the key term in the statute. The statute itself does not define the term, and I think it’s problematic as applied to oral communications, which are not transmitted electronically or telephonically.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.