Amid all the discussion about the political impact of the Mitt Romney secret taping story this week is one unanswered question: Did the person who made the tape commit a crime?
Florida is what is known as a two party state — meaning you have to have the consent of both parties to record conversations. And according to Florida Attorney Marc Nurik, that means whoever made the tape may well have committed a third degree felony under Florida law, which is theoretically punishable by up to five years in prison.
“It would be my initial opinion that if you’re in a private home, in a private gathering with no media present, you have the expectation that your communications are not going to be intercepted,” Nurik said. “Somebody secretly taping it without Romney’s consent would be in violation of Florida statute, in my opinion.”
But Nurik also said there have been very few such prosecutions in Florida and he could not remember any case in which an illicit taper had served jail time.
The Romney recordings, first widely disseminated by Mother Jones magazine, were apparently made at a private fundraising event at the Boca Raton home of donor Mark Leder on May 17.
On the tapes, the camera appears to have been placed surreptitiously behind several drinking glasses at the back of the room. (Watch:Donald Trump to Romney: No More Apologizing!)
Campaign donors can be seen seated in chairs listening to Romney as waiters mill about the event.
Nurik said whoever made the recordings would have to argue that the gathering amounted to a public event under Florida law in order to make the recording legitimate.
However, another Florida attorney said Tuesday that Romney’s own comments after the tapes emerged could damage any legal case against the taper, whose identity is unknown.
In a hastily arranged press conference Monday evening, Romney said that the message he delivered to the donors on the tape is essentially the same he delivers publicly. “It's a message which I'm going to carry and continue to carry, which is: Look, the president's approach is attractive to people who are not paying taxes, because frankly, my discussion about lowering taxes isn't as attractive to them,” Romney said. “And therefore, I'm not likely to draw them into my campaign as effectively as those who are in the middle.”
That, said Florida attorney Edward Birk, may be enough to inoculate the taper, based on previous Florida cases that hinged upon whether or not the communications recorded were essentially the same as the person would say anywhere. “If I’m a court, I’m going to go out on a limb and say, no, it’s not a violation because he would say that anywhere,” Birk said. “But it’s really on the fringe.”
Birk also pointed out that the homeowner, Leder, might have a case — particularly if the taper was a member of the catering staff at the event. “I’d want to see if there was anything in the contract with the caterer,” Birk said. “I think the homeowner could have a civil action.”
Florida attorney Daniel Santaniello said that the secret taper could also run afoul of a federal statute, 18 USC 2511, which also prevents such illicit recordings. “Because it was a private fundraiser, it would appear the speaker has a subjective expectation of privacy,” Santaniello said. “It would appear that this recording arguably violates both Florida statute 934.03 and its federal counterpart.” Romney, Santaniello said, “enjoys the same constitutional rights as anybody under the statute.”