Steve Robinson, a blogger for the conservative “The Maine Wire” might be in trouble. He secretly recorded a conference call between liberal groups planning a reaction to anti-Mike Michaud adds. The Attorney General is now investigating the situation for possible criminal prosecution.
Though Robinson initially claimed that he got the recording from a source, he has since admitted that he made the recording himself. Obviously, Robinson was not invited to participate in the call, but he somehow got the access code and dialed in. Once on the call, he remained silent but recorded the other participants. Here is his blog post about the call including the audio he recorded.
Maine’s communication recording law
When it comes to recording conversations, Maine is a so called “one party consent” state. That means that only one party to a conversation needs to consent to the recording for it to be legal. Also the recording party does not need to notify the other participant. Some seem to think that this makes prosecuting Robinson impossible, but I’m not so sure.
Maine’s law makes “Interception of wire and oral communications” a class C felony punishable by up to 5 years in prison. The law provides that:
Any person…who intentionally or knowingly intercepts, attempts to intercept or procures any other person to intercept or attempt to intercept any wire or oral communication is guilty of a Class C crime.
One party consent state
Here’s the one party consent part: The definitions section of the law defines “Intercept” as follows:
“Intercept” means to hear, record or aid another to hear or record the contents of any wire or oral communication through the use of any intercepting device by any person other than:
A. The sender or receiver of that communication;
B. A person within the range of normal unaided hearing or subnormal hearing corrected to not better than normal; or
C. A person given prior authority by the sender or receiver.
If the sender or receiver consent to the recording, it’s not an “intercept” and does not violate the law. Of course the terms “sender” and “receiver” are not further defined by statute or by case law and that may be the crux of Robinson’s case.
Was Robinson’s recording illegal?
Robinson would probably argue that, since he was on the conference call, he was a “receiver” of the communication. But the prosecution could easily argue that he only received the information because he intercepted it: Robinson was not the intended recipient of the communication, he likely obtained access to the call through some improper means, and he did not have permission to record from any authorized participant. Allowing such a person to consent to a recording, they could argue, would destroy any protection under the intercept law.
If Robinson is charged, the case will likely come down to how he got the access code and whether he had some apparent authority to participate in the call. If he did, he is probably authorized to consent to the recording. If not, he is no better than someone who hides a listening device in a conference room, and that’s still a crime in Maine.