Return to My Blog

Monday, May 5, 2014

Donald Sterling, Owner Los Angeles Clippers / Recording of Private Conversations (Part 2)



Not a lot is known, at least to me, about the actual manner in which Vanessa Stiviano recorded her private conversation (the now infamous conversation) with her ‘mentor,’ Donald Sterling.  Was the recording legal?

I’ve read that others, besides Stiviano and Sterling, were in the room when the recording was made.

I’ve read that Stiviano customarily recorded Sterling statements with his knowledge.

I’ve read that the recorded conversation was a very private conversation between Stiviano and Sterling and that Sterling did not know he was being recorded.

The facts regarding how the recording was made are relevant.  And, there could be repercussions, both civil and criminal, for Stiviano.  However, the facts regarding how the recording was made may have no bearing on the punitive actions directed at Sterling by the NBA, once the recording became public.

The recording of conversations, as well as the videotaping of individuals, without their awareness, is a confusing area of law.  I will attempt to summarize.

Just as an aside, this is an investigative technique (recording conversations or making a videotape) that is a continual preoccupation with private investigators, as well as a controversial topic of discussion.  There is, of course, both Federal and State laws that describe what is illegal or legal, presented in a somewhat complex and often not very helpful manner.  In addition, to the laws, with all their intricate nuances, there is a legal principal that applies to recordings and videotaping referred to as:  ‘an expectation of privacy.’  When an investigator violates this ‘expectation’ without an appropriate court order, he or she is treading on thin ice.

Initially, Federal Law seems rather straightforward.  Regarding a recorded, two-person conversation, either in person or on the telephone; it is generally legal if one of the individuals knows a recording is being made.  However…  If you are really interested, or think it might apply to something you plan to do, you must plow through Title 18, U.S. Code 2511, Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited.  It is lengthy, but here is the section that might apply to what Stiviano did:

“It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.”

Additionally, there are other elements of said statute that apply to the publication or dissemination of the recorded conversation, which it appears that Stiviano might have violated; as well as the media outlet that took the recording and broadcast it.

California (where it is believed that the recording took place) is a ‘two-party’ state.  In other words, to record a private conversation, California state law dictates that both parties to the conversation must be aware that a recording is being made – which puts you in a position, consequently, of also being in violation of Federal Law.

As I said initially, it’s complicated.  However, as I also said, this complexity may not matter to the NBA.  The recording was made available to the public.  The NBA had no involvement in the making of the recording or in its subsequent release to the public.  Therefore, they probably are clear to take any action they deem appropriate.

Now, Ms. Stiviano is a horse of another color.


True Nelson