Attention Rush Limbaugh Fans

The story out of Houston about a grand jury reportedly returning grounds for indictment of two people involved in the “undercover recording” of a video of Planned Parenthood officials has been getting a lot of traction.

Despite speculation of a “runaway prosecutor” or other less than honorable motivations, there is clear reason in Texas state law which all well-schooled reporters should be aware of:  Most states prohibit the undercover recording or video of a person without their specific consent, if they are not public figures and if they are in a place not accessible to the general public (as in a private office). 

I sent is a note to Mr. Limbaugh to point out the Texas laws: which may be read at http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.21.htm#21.15.  See the yellow highlight: Prohibits unauthorized recording…

Sec. 21.15.  INVASIVE VISUAL RECORDING.  (a)  In this section:

(1)  “Female breast” means any portion of the female breast below the top of the areola.

(2)  “Intimate area” means the naked or clothed genitals, pubic area, anus, buttocks, or female breast of a person.

(3)  “Changing room” means a room or portioned area provided for or primarily used for the changing of clothing and includes dressing rooms, locker rooms, and swimwear changing areas.

(4)  “Promote” has the meaning assigned by Section 43.21.

(b)  A person commits an offense if, without the other person’s consent and with intent to invade the privacy of the other person, the person:

(1)  photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not subject to public view;

Were the people who were videoed under the impression that they had a reasonable expectation of privacy; e.g. not subject to public view?

This is a Class A misdemeanor.

In another section  (Title 4) of the Texas Penal code is a felony and covers recording without permission:  (from http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.16.htm#16.02)

Sec. 16.02. UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS. (a) In this section, “computer trespasser,” “covert entry,” “communication common carrier,” “contents,” “electronic communication,” “electronic, mechanical, or other device,” “immediate life-threatening situation,” “intercept,” “investigative or law enforcement officer,” “member of a law enforcement unit specially trained to respond to and deal with life-threatening situations,” “oral communication,” “protected computer,” “readily accessible to the general public,” and “wire communication” have the meanings given those terms in Article 18.20, Code of Criminal Procedure.

(b) A person commits an offense if the person:

(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;

(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(4) knowingly or intentionally effects a covert entry for the purpose of intercepting wire, oral, or electronic communications without court order or authorization; or

(5) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when the device:

(A) is affixed to, or otherwise transmits a signal through a wire, cable, or other connection used in wire communications; or

(B) transmits communications by radio or interferes with the transmission of communications by radio.

(c) It is an affirmative defense to prosecution under Subsection (b) that:

(1) an operator of a switchboard or an officer, employee, or agent of a communication common carrier whose facilities are used in the transmission of a wire or electronic communication intercepts a communication or discloses or uses an intercepted communication in the normal course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of the communication, unless the interception results from the communication common carrier’s use of service observing or random monitoring for purposes other than mechanical or service quality control checks;

(2) an officer, employee, or agent of a communication common carrier provides information, facilities, or technical assistance to an investigative or law enforcement officer who is authorized as provided by this section to intercept a wire, oral, or electronic communication;

It’s a delicate area of right to privacy, as everyone is presumed to have some right to privacy and the Courts are, themselves, not sure where the line between politics and journalism is drawn.

A good bit of discussion hinges on your sense of “Who is a Public figure?”  above and beyond the hidden camera approach.  A good discussion of this over at the Digital Media Law Project here.

Most states do not have explicit press exceptions to these unilateral recording laws.  The major networks, with big checkbooks *(and staff counsel) can make it one, and win.  But for small groups using the broad prohibitions on unilateral reporting without consent can trump the free press.

Just to be clear, it is likely to be a contentious case for a long while…even when the criminal matters are decided, there could well be civil action to follow.