LA Clippers owner Donald Sterling is in a lot of hot water over remarks he made to his ex-girlfriend, V. Stiviano (aka María Vanessa Perez, aka Monica Gallegos, aka Maria Monica Perez Gallegos, aka Maria Valdez), which Stiviano apparently recorded and intends to use as leverage in connection with a multimillion dollar lawsuit filed by Sterling’s wife (yes, he apparently has both a wife and a girlfriend – but this is LA, so who knows.)
So someone is in a lot of legal hot water. And in a lesson for companies that seek to monitor the e-mail and other communications of their employees, the person in legal hot water (as opposed to PR hot water) is not Don Sterling, but rather is Stiviano.
You see, like many other States, California law makes it a crime to record the audio portion of a conversation without the consent of ALL parties to the conversation – and I seriously doubt that Don Sterling knew he was being recorded. Cal. Penal Code 631 provides:
(a) Any person who … willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit … or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do…
Is guilty of a crime.
So the California law prohibits a bunch of different things. “Intercepting” (wiretapping) calls without consent of all parties; “reading or listening to the contents” of the conversation without consent; recording the communication without consent; using the information received from such unlawful “interception” in any way; or assisting someone else to do this.
California is one of several states that make interception, recording or use of recorded communications illegal. These include Massachusetts (Mass. Ann. Laws ch. 272), Michigan (§99 Michigan, Mich. Comp. Laws §750.539c), Nevada (Nev. Rev. Stat. Ann. §200.620 – by court decision); New Hampshire (N. H. Rev. Stat. Ann. §570-A:2) South Carolina (S.C. Code Ann. §16-17-470), and Washington State (Wash. Rev. Code § 9.73.030). It is these laws that are sometimes used by cops to arrest and prosecute individuals for recording their conversations or interactions.
So if Stiviano recorded Sterling’s conversations without his actual or implied consent, then not only may the recording be illegal, but the disclosure and/or use of the recording (even by TMZ) may also constitute a crime. Look out glassholes!
But here’s where it gets tricky for Internet security companies.
Some states expressly extend this “all party consent” philosophy to “electronic” communications as well as telephonic ones. This includes Connecticut (Conn. Gen. Stat. §52-570d:), Delaware (Del. Code Ann. tit. 11, §2402(c)(4)), Florida, (Fla. Stat. ch. 934.03), Hawaii, (Haw. Rev. Stat. §803-42), Illinois (720 ILCS 5/), Louisiana (La. Rev. Stat. §15:1303), Maryland (Md. Code Ann., Courts and Judicial Proceedings §10-402), Montana ( Mont. Code Ann. §45-8-213) and Pennsylvania (18 Pa. Cons. Stat. §5703).
Think about that. It is unlawful in those states for anyone to “record” the contents of an electronic communication without the consent of all parties to that communication.
Think about that again. It is unlawful in those states for anyone to “record” the contents of an electronic communication without the consent of all parties to that communication.
Consider the situation where Alice sends an e-mail to Bob at work. Bob’s office has a “no expectation of privacy” warning banner, and Bob has clearly consented to his employer’s reading of his e-mail. (Oh, let’s assume that both Alice and Bob are in Maryland…) Alice has not “consented” to having HER email (to Bob) read by Bob’s bosses? That’s particularly true if Bob decides to read Alice’s personal e-mail while at work. Clearly you can’t say that, by sending a personal e-mail to Bob’s personal email account, Alice has consented to allowing Bob’s employer read it?
So how do we handle this problem?
Simple. We ignore it. Just like Don Sterling ignored the fact that his girlfriend was possibly recording his conversations. So what could go wrong with that?