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As most readers of Spectrum are now well aware, recent events occurring at La Sierra University (LSU) resulted in the forced resignations of four individuals for employment policy violations. It was the rather unusual circumstances under which these policy violations came to light that created most of the controversy and drove much of the discussion. The intent of this article is to examine some potential legal implications emanating from this set of circumstances that arise from California’s strict privacy laws.
While many of the details are still unknown, we now know enough to be able to analyze some of the issues. This article is not a legal brief, and should not be understood to be a definitive or comprehensive statement on the issues, facts or related law, but, rather, has as its objective to convey a sense of some of the legalities in play, and how this matter could unfold.
California privacy law is quite broad with possible implications for the current case. A number of the California Codes cover various aspects of privacy considerations, but the most important of these provisions is found in the California Penal Code in a chapter entitled “Invasion of Privacy.” The fact that this provision is found in the Penal Code is, in itself, instructive and conveys the level of importance that the Legislature gave it, with possible sanctions ranging from fines up to $10,000 or imprisonment for up to one year, or both. In short, it is clear that California takes privacy issues very seriously and violations of this code should be taken seriously.
The portion of the code that will most likely have some application to the current LSU situation is § 632. This particular section is sufficiently lengthy that rather than cite the whole thing here, I will cull out some of its more pertinent provisions for your consideration.
California Penal Code § 632 opens with the following:
Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device…shall be punished…” with the range of sanctions spelled out above
This provision goes on to identify the term “confidential communication” to include:
…Any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering…or any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded
The process of legal analysis attempts to compare and contrast the facts to the law, with the law itself being interpreted, in part, through subsequent court cases. The elements that are sought for in such research are case decisions with favorable statutory interpretations, and cases with fact-patterns that are on point. When such cases do not exist, then we are left in uncharted waters that if appealed would likely be the basis for brand new case law. Such case law often finds its way into the casebooks to stand as precedence and an authoritative source for future cases.
I mention all of this because the factual elements that have given rise to the controversy at LSU appears to be unprecedented, with no similar factual scenarios evident from the case law. In general, the line of cases that correlate with this code section involve invasion of privacy with intent going to a primary rather than a secondary recorder as occurs in the LSU case. If a litigation/prosecution phase develops, these unique factual details will create greater legal uncertainty in the application of law to facts that what might normally be expected because of the lacking of precedence. At this stage we don’t know if this will become a legal case, but we can speculate it to be a possibility. In what follows I would like to go through some of the language elements of this statute that could become objects of legal significance.
1. Every person—the term employed in the Code is a very inclusive term, and while I didn’t cite the Code in total, it does go on to define what is meant by this term, having application to corporations or other legal entities—entities other than people. This is therefore talking about you and me, and all manner of legally configured organizations, yes even universities and churches.
2. Who intentionally and without the consent of all parties to a confidential communication—this particular phraseology has three parts to it. First, it must involve an intentional act, second, it must be done without consent of all parties, and third, it must involve a confidential communication.
From what is currently understood, the first part of the recording from the primary recorder was intentional, while the second part of the tape involved inadvertence and therefore was unintentional. And while some have speculated about the legality of the initial recording, the code specifically excludes from this provision communications made “in a public gathering or…any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” At least one attendee of the LSU meeting in question has stated on this forum that this meeting included at least some individuals other than faculty. These individuals were not barred from entry to this meeting, were not asked to leave and no indications were made that this was an off-the-record discussion—not to be recorded. It therefore seems unlikely that presenters at this meeting would have had any expectation of privacy, and so if these facts bear out, this recording appears to have been made legally.
But what about the recording of the secondary meeting that that has been the main center of controversy? As reported, this secondary meeting was the product of inadvertence on the part of the primary recorder and therefore was not intentional. Even though the other elements would arguably come within factual scope of the statute, it would appear to fail with respect to the primary recorder, and that due to its unintentional nature. But what about the long list of secondary recorders—(a) the General Conference/ North American Division transcriber? (b) Those posting the audio or transcripts? (c) Those posting web links to the recordings in blog comments? Do they meet the definition of “intentionality?” While the statutory language does not contemplate a scenario involving a chain of secondary recorders as has unfolded with this story, courts often consider the Legislative intent and likely would have no problem applying it to some the secondary recorders since the stated purpose of this section is to protect private communications from invasion through the help of modern technology. In the case of a private communication going viral, where a long chain of intention involving very remote and large numbers of people, the legal implications become a little murky. I will say more about this momentarily.
3. By means of any electronic amplification or recording device, or eavesdrops upon or records the confidential communication by means of a telegraph, telephone, or other device—note that it covers both recorders and eavesdroppers of a confidential communication. How far is its reach? Is a written transcript considered a recording within the meaning of the law when the law refers to “other device?” Is the posting of a web link to such conversation the equivalent of recording it? The statute doesn’t tell us, but a line of cases has extended the reach of the law to third parties. In view of the overriding legislative intent of protecting against invasion of privacy, it is at least arguable that some of the above conduct could be problematic.
That is why a few days ago I posted comments recommending that the wise course of action for all participants on this blog is to steer clear of these recordings. We can guess that those most likely to get the closest scrutiny from attorneys will be actions taken by those, including Church officials, who transcribe (1) this confidential communication (2) and then use the transcript against those involved.
The End Game
Ironically, the LSU four may now have the upper hand. The key to understanding this reality has to do with the possible criminality of what took place, which required the consent of all the parties—consent that was never proffered. If the factual lay of the land is found to be within the intent of the statutory scheme, this will represent a major trump card for the LSU four. Furthermore, if the four file a legal complaint, it could impact the fate of a number of players in this on-going Adventist drama.
—Jan M. Long, J.D., M.H.A., works for the County of Riverside, California.
1. The courts could well interpret transcribing a confidential communication as an act of “recording,” which is one of the elements of this code section.
2. We are forced to conclude that this communication was confidential from the facts as currently known, as well as on the basis of common sense reason that people don’t usually incriminate themselves intentionally such as the voluntary distribution of an incriminating recording.