The latest news report on the surreptitious recording of a strategy session in the Kentucky campaign headquarters of Senator Mitch McConnell (R) indicates that federal and state law may indeed have been violated.
The local NPR station in Louisville claims that two members of Progress Kentucky recorded the meeting from the hallway outside of the meeting room. The meeting was held after an open house ended that had been attended by select media outlets. The two activists did not attend the open house but apparently arrived after it was over.
Campaign manager Jesse Benton “has told multiple media outlets the door was shut and locked…But the door has a vent at the bottom and a large gap underneath.” The meeting room is next to the elevators on that floor. According to a member of the local county Democratic Executive Committee (who said party officials had no involvement in the incident), the two Progress Kentucky activists “overhead the conversation and decided to record it with a phone or recording device they had in their pocket.”
As previously explained, the key to whether these activists broke federal law is whether Sen. McConnell and his staff had “an expectation” that their conversation was “not subject to interception under circumstances justifying such expectation” (18 U.S.C. §2510(2)). The NPR report claims that “if the conversation was audible from a hallway, it’s disputable whether recording qualifies as eavesdropping.”
But courts have examined this very issue. As the Ninth Circuit Court of Appeals outlined in U.S. v. McIntyre (1978), any court looking at these facts would examine whether McConnell and his staff had “a subjective expectation of privacy” and that “expectation was objectively reasonable.” It seems obvious that a group of individuals having a conversation in a room with a closed, locked door would certainly have a “subjective expectation of privacy.” One would also think that a court would similarly determine that such an “expectation was objectively reasonable” under the circumstances: No reasonable person would expect someone standing in the hallway outside of the room to record the conversation through a vent or a large gap underneath the door.
If the reports turn out to be correct, there is a very good chance that prosecutors and ultimately a jury will conclude that these activists committed a felony violation of the federal wiretapping statute.