Surreptitious videotaping found not to violate federal wiretap laws

Surreptitious videotaping found not to violate federal wiretap laws

• An ABC producer who secretly recorded conversations with psychic hotline employees was not shown to have acted with an “illegal or tortious purpose”

When ABC reporter Stacy Lescht posed as a psychic advisor and secretly videotaped conversations with coworkers as part of an investigation of a telephone psychic hotline, she did not violate federal wiretapping laws, according to a mid-August ruling from the U.S. Court of Appeals in Pasadena, Calif. (9th Cir.).

The federal wiretapping statute states that it is unlawful for a person “to intercept a wire, oral, or electronic communication … for the purpose of committing any criminal or tortious act.” The appellate court concluded that the psychic hotline employees who were secretly recorded “produced no probative evidence that ABC had an illegal or tortious purpose when it made the tape ” and affirmed a federal trial court’s ruling that Lescht did not violate the federal statute.

Soon after the recordings were aired on the ABC news program “PrimeTime Live,” two of the psychic hotline employees who had been videotaped filed suit in a California state court for invasion of privacy by photography and violation of the federal wiretapping statute. The California Supreme Court in San Francisco ultimately held in late June that the taping of office conversations could be actionable as an invasion of privacy, and ABC subsequently removed the case to federal court. The federal district court in Los Angeles granted ABC’s request that the wiretapping claim be dismissed. The federal appellate court in Pasadena affirmed the trial court’s dismissal.

The psychic hotline employees did not argue that ABC’s airing of the tape was an invasion of privacy or a violation of wiretapping laws. Rather, the employees argued that the taping itself was illegal.

The federal appellate court disagreed. According to the court, “Where the taping is legal, but is done for the purpose of facilitating some further impropriety, such as blackmail, [the federal wiretapping statute] applies. Where the purpose is not illegal or tortious, but the means are, the victims must seek redress elsewhere.”

Also in late June, the California Supreme Court in San Francisco allowed the invasion of privacy claim of psychic Mark Sanders to proceed against Lescht and ABC. Sanders asserts that even though he did not expect that his conversations with Lescht would be kept private from coworkers, he did not expect that a six-second excerpt from one of those conversations would be recorded by a reporter and would subsequently appear on network television.

(Sussman v. American Broadcasting Cos., Inc.; Media Counsel: Steven M. Perry, Los Angeles)

© 1999 The Reporters Committee for Freedom of the Press

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