Recording of Romney Comments Could Be Illegal

The clandestine recording of Republican presidential candidate Mitt Romney saying that 47 percent of Americans believe they are victims may have broken Florida’s laws against eavesdropping, legal experts say.

Romney made the comments at a private fundraiser in Boca Raton, Fla., on May 17. Florida is a two-party consent state, meaning the state’s rules  require consent from a person being recorded when that person has a reasonable expectation of maintaining his/her privacy, experts tell Politico.

Florida makes it a crime to intercept or record a "wire, oral, or electronic communication" in Florida, unless all parties to the communication consent.

So the question is whether Romney can legitimately claim that expectation, given that fundraising events are designed to influence his supporters and make others aware of his candidacy.

No one has filed a complaint yet, so there is no investigation, Paul Zacks, the chief assistant state attorney for Palm Beach County told the Wall Street Journal.

Zacks warned that although it's clear the person making the Romney video did not seek the candidate's consent, Florida courts have ruled that taping without consent is legal if the subject being recorded doesn't have a “reasonable" expectation of privacy.

According to the Florida Bar, "taking photographs of a person or his property in a private place may be an invasion of privacy. Tape recording a person without his consent may invite damage awards, and, in Florida, also constitutes a crime."

The Romney fundraiser was held with some 100 people in attendance, according to news reports at the time. It was held at the home of private-equity executive Marc Leder and, in the video, it appears to be a small, intimate gathering.

Zacks told the Journal that there would have to be an "extensive legal" investigation before any charges would be brought and that won't happen unlesss a victim -- Romney -- comes forward.

That investigation would have to sort whether Leder, the host, invited his guests with the expectation that cameras were off-limits. Even so, Romney would have to show he had a reasonable expectation that his comments were private in such a public venue.

That may be hard to prove, first-amendment attorney Alison Steele told The Tampa Bay Times.

"The question I think the law would ask is, is it reasonable for a candidate for president to stand at a podium in front of a roomful of people and expect that no one would record anything he said?" Steele said. "I would think that an unreasonable expectation."

Thee U.S. Supreme Court has in the past supported the media's right to publish secretly recorded comments "of public concern," she said.

"I would deem a presidential candidate's remarks revealing how he views his fellow Americans to be of the highest public importance,'' she said.