Kanye West and Kim Kardashian are not law professors, but in their latest public feud with pop-star extraordinaire Taylor Swift, they are providing an interesting example of the legality of recorded conversations as well as their admissibility in civil court.
The Feud
Putting aside the inception of the feud (“Imma let you finish…”) and the back and forth since then, the most recent chapter began when Kanye West released his song “Famous” earlier this year with lyrics referencing Taylor Swift: “I feel like me and Taylor might still have sex / I made that bitch famous.” West claims that he obtained Swift’s consent for the lyrics during a phone conversation between the two of them. Swift denied giving such consent which resulted in Kim Kardashian – West’s wife – posting the recorded conversation on her Snapchat account.[1] Swift then took to Twitter and Instagram claiming that she did not give consent to someone else calling her “’that bitch’ in front of the entire world.”[2]
Is it a Crime or a Tort?
In short, it depends on where the parties were located at the time of the conversation. In some states – twelve to be exact – it is illegal to record a phone conversation unless both sides consent. One of these so-called “two-party consent” states is California, which carries a penalty of up to a $2,500 fine and/or a year in county jail.[3] If the prosecutor were to charge the crime as a felony, then the penalties are stricter.[4] In all but two of these states,[5] the consent statutes provide civil penalties for merely recording the conversation and additional civil penalties for publishing the recorded conversation.[6]
It is not yet unequivocally established which state(s) the parties were in, but their locations will likely determine criminal culpability and/or civil liability. Both TMZ and People claim West was in Los Angeles, though another source claims he could have been in New York (a one-party consent state). It is possible that Swift was in either California where she frequently visits or Tennessee, her state of residence and a one-party consent state.
If West, Kardashian, and Swift were, in fact, all in California at the time of the recording of the phone call, then it would be a clear violation of California state law and both West and Kardashian could be on the hook both criminally and civilly for recording the conversation as well as publishing it on Snapchat. However, if West and Kardashian were in a state that only required one party’s consent, then the issue would be trickier, as the court would have to decide which state’s laws to apply. In a prior California case, employees at a company in Georgia (a one-party consent state) recorded conversations with clients in California (a two-party consent state) without their consent or knowledge. The case turned on choice-of-law and the California court looked at both states’ interests and whether California’s interest in privacy would be more severely impaired if Georgia’s law was applied than if Georgia’s interests would be more severely impaired if California’s law were applied. Ultimately, the court decided to apply Georgia’s one-party consent law and the recording was deemed legal.[7] If Swift sued and the parties were in two different states with differing consent laws, the court would balance the interests of both states in an effort to resolve the choice of law conflict.
Alternatively, if they were in two different states, the Federal Wiretap Act may also be applicable. This law regulates the interception of communications, including phone calls and only requires the consent of one party for the taping of the conversation to be legal. [8] If federal law were determinative, then West and Kardashian would be in the clear as West would certainly claim he consented to Kardashian’s recording of the conversation. However, “the federal statute is only preemptive in those situations where there is no state law on the subject of conversation interception, or the state law is less strict”[9] and there are currently no judicial precedents for whether state or federal law controls in the context of phone conversations between participants in different states.[10]
Civil Liability for Invasion of Privacy
Not only does California law provide for civil penalties for the recording of a conversation without the consent of all parties, Swift also has the option to sue in civil court on the basis of an invasion of privacy. At that point, the analysis would likely shift to whether Swift had a reasonable expectation of privacy in her
conversation with Kanye West. They have two of the most recognizable names and faces of the decade, but even extremely public figures have some expectation of privacy, especially behind closed doors. West’s attorneys could certainly make the argument that, by virtue of West’s marriage to Kim Kardashian, who appears on multiple reality television shows, including Keeping Up with the Kardashians, Swift should have known it was a possibility the telephone conversation was being recorded as part of the television show. However, even if that were true, the production company would likely be under an obligation, under the very same two-party consent law, to inform Swift that they were recording. Ultimately, the court would have to determine whether Swift had a reasonable expectation of privacy in her phone call with Kanye West in order to decide whether her privacy was, in fact, violated.
Admissibility in Court
Generally, in criminal cases, there is a doctrine that prohibits evidence in court that is “fruit of the poisonous tree.”[11] This means that if a person, including a member of law enforcement, obtains evidence illegally, then that evidence is inadmissible in court. An analogous rule does not apply in most civil courts, but many state statutes, including California’s Penal Code, provide that an illegally obtained recording is not admissible in any judicial proceeding unless in an action or prosecution regarding the violation of the section itself.[12]
Thus, if Taylor Swift sued Kanye West over his use of her name in his lyrics, her attorneys would likely try to disallow the phone call as evidence because she did not consent to the recording, and as such, it should be inadmissible in a court of law according to California Penal Code. However, if Swift sued regarding the invasion of privacy, which by its very nature concerns the recording, then the recording would be admissible in California court.
Conclusion
Outside of the realm of celebrity feuds, it is important to know whether you reside in a one or two party consent state especially if you or your business is engaged in the practice of recoding phone calls or conversations, for example, in the context of customer service. For more information, click here. Similarly, it is important to know the nuances of your state’s consent laws and whether the recorded conversations will be admissible in court before attempting to record conversations with others as part of an effort to bolster your civil case. Speaking with an experienced attorney can help you understand these laws.
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[1] A transcript of the conversation can be found at http://www.eonline.com/news/780656/kanye-west-and-taylor-swift-s-famous-conversation-read-the-full-transcript-from-kim-kardashian-s-snapchat.
[2] https://twitter.com/taylorswift13/status/754894689900359680
[3] California Penal Code 632(a).
[4] “Eavesdropping” Laws in California Penal Code 632 PC, Shouse California Law Group, http://www.shouselaw.com/eavesdropping.html.
[5] Washington does not allow for civil penalties for publishing the recording and Montana does not allow for civil penalties for the recording or publishing the recording.
[6] Reporters Committee for Freedom of the Press, Tape-Recording Laws at a Glance, http://www.rcfp.org/reporters-recording-guide/tape-recording-laws-glance (Aug. 1, 2012).
[7] Kelly Kearney et al. v. Salomon Smith Barney, Inc., 45 Cal.Rptr.3d 730, 39, Cal.4th 95, 137 P.3d 914 (2006).
[8] 18 U.S.C. § 2511(2)(d).
[9] Roberts v. Americable International, Inc. 883 F.Supp. 499, 503 n.6 (E.D.Cal 1995).
[10] Kelly Kearney et al. v. Salomon Smith Barney, Inc., 45 Cal.Rptr.3d 730, 39, Cal.4th 95, 137 P.3d 914 (2006).
[11] Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).
[12] California Penal Code § 632(d).
