FREE PRESS — If the San Bernardino ACORN employee secretly video-recorded by a purported pimp and prostitute she was interviewing sues for violation of her privacy rights, the state Supreme Court's interpretation of the relevant California statute could give her a strong case. Or might  have—had she not already admitted she knew the interview was a set-up.

The employee, who says she stung back the transparently phony sting team by casually confessing to being a former call girl madame and spouse-killer, would not be arguing that the breathless Fox broadcasts of the video revealed any private facts about her, since her contention is she stated none.

Instead, she would probably be claiming a violation of her privacy rights under Penal Code Section 632, which bans the use of covert technology for eavesdropping on, or recording, a “confidential” conversation. Violators may be criminally prosecuted or held civilly liable for damages.  Violation occurs with the unannounced use of any audio or video taping mechanism concealed well enough to prevent the speaker from suspecting that he or she is being recorded.

The crucial test under the Supreme Court's decision in Flanagan v. Flanagan, 27 Cal. 4th 766 (2002), is thus whether the plaintiff speaker had reason to suspect he or she was being overheard or mechanically recorded—not whether the speaker expected the conversation to be repeated or reported. 

For example, in a case decided by the California Court of Appeal in the year following Flanagan, two undercover journalists posing as patients made covert audio and video tapes of their visits to a doctor in his office. The resulting broadcast story about his improper prescription practices ended the doctor’s career.

The appellate court, ruling on his Section 632 claim, cited Flanagan, concluding that the doctor’s “evidence demonstrates that he expected his communications to be private and did not expect them to be recorded.” It rejected the defendant TV station’s argument for a constitutional news gathering privilege, stating that the defendant “has not shown that the California Constitution or the United States Constitution requires the creation of a broad affirmative defense based solely upon a legitimate newsgathering motive, and we decline appellant's invitation to do so.” Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156 (2003).

But the employee's contention that she made up the jaw-dropping admissions of a criminal past because she knew the visitors were themselves bogus may have made it difficult credibly to claim in court that she did not suspect the interview was being recorded.