BUNNELL — Two-party consent is the critical component when considering whether a recorded conversation is deemed legal or illegal, but the argument at trial — if it gets that far — could rest on an individual’s expectation of privacy.
She is accused of illegally recording conversations involving various state and local officials and sharing at least some of those recordings. Among the names of subjects listed in the three-page indictment are Florida Secretary of State Ken Detzner; Flagler County Judge Melissa Moore Stens; Flagler County Attorney Al Hadeed; Flagler County Commissioner Charlie Ericksen and others.
Edward L. Birk, a Jacksonville attorney who chairs the Media and Communications Law Committee of The Florida Bar, said there can be a reasonable expectation of privacy during a public meeting. For instance, two people in the audience having a quiet conversation while council members were conducting business would have an expectation of privacy from an audio recording. Adding to the perceived contradictions in the law, the whispering audience members could still be recorded by video without consequence.
The rule would be different for a board member sitting at a table who speaks to someone halfway across the room, Birk said. That conversation would be fair game for anyone holding a recording device.
“It all comes down to expectation of privacy, even in a public meeting,” Birk said. “Generally speaking, these cases are always fact-intensive on the key question: Was there an expectation of privacy?”
ARRAIGNMENT TO COME
Weeks’ arraignment has been scheduled for June 1, according to the Flagler County Clerk of the Circuit Court’s website. As of late Friday, no one from the State Attorney’s Office or the Flagler County clerk’s office knew whether Weeks had hired an attorney.
Weeks, 54, did not respond to media requests for interviews last week and no one answered when a News-Journal reporter knocked on the front door of her west Flagler County home Wednesday afternoon. Efforts to contact her Friday also were unsuccessful.
Weeks, a Democrat who won election in 2008 and re-election in 2012, resigned her position four months ago. She said she did so for family health reasons, but in an email to various media outlets she accused county commissioners and other local government officials of attacking her. She stated she was forced to endure six years of “obstruction and manipulation” that amounted to “voter fraud.”
Weeks also served on the Flagler County Canvassing Board.
The Florida Department of Law Enforcement, the agency that led the investigation, executed a search warrant at Weeks’ office in October 2014. Weeks is accused of recording conversations illegally between April 3 and Sept. 20, 2014.
Shannon Peters, a managing assistant state attorney for the 7th Judicial Circuit, said the exception to the two-party consent rule is when the recorder is working in conjunction with law enforcement. She said she couldn’t discuss in greater detail the statute or her office’s reasoning behind pursuing criminal charges against Weeks because it is an open case.
SUBJECT TO INTERPRETATION
The section of Florida Statutes dealing with the interception and disclosure of wire, oral or electronic communications contains more than 50 sections and subsections, which gives legal experts considerable room to conjure their own interpretations.
Weeks played a recording of a private conversation between Hadeed and Ericksen during a canvassing board meeting in August. She played a portion of the conversation during a subsequent public meeting attended by more than 20 people, a robust crowd for a canvassing board meeting. Several were there to support Weeks, who had made allegations that Palm Coast city officials were subverting early voting at the city’s Community Center.
On the recording, Hadeed could be heard telling Ericksen he once had to caution a former county commissioner not to read absentee ballots. Weeks used that recording against both Hadeed and Ericksen when she filed complaints through The Florida Bar and the Florida Elections Commission. Her allegations against them were dismissed in April.
Daytona Beach defense attorney Mike Lambert wrote a letter to the canvassing board on Weeks’ behalf last October urging Hadeed to step down because of the palpable rift between the county attorney and Weeks.
Calls to Lambert seeking to determine whether he is still offering legal representation to Weeks were not returned.
Other attorneys and at least one First Amendment advocate gave their opinions even months before the indictment came down.
During an interview with The News-Journal in September, Richard A. Harrison, an adjunct professor at Stetson University College of Law in Gulfport, said Weeks had every right to record the conversation between Hadeed and Ericksen even without their consent because it took place during a public meeting.
He said any expectation of privacy during a public meeting is “fundamentally inconsistent.”
Barbara Petersen, president of the First Amendment Foundation, had the same opinion.
Adding to the complexities of the law about illegal recordings and rights to privacy is the evolution of technology, said Birk. Smartphones with audio and video capabilities make it easier to commit a crime. Weeks, for instance, used her cellphone to record the conversation between Hadeed and Ericksen.
Each of the charges against her is a third-degree felony punishable by up to five years in prison.
“The technology we have today makes it very easy to violate the statute,” Birk said. “This is a very serious statute and people may not be as aware of it and its consequences as they should.”
Original article here.