The San Francisco Chronicle reported a month ago that
State Attorney General Jerry Brown's office said Thursday that he is investigating the community activist group ACORN at Gov. Arnold Schwarzenegger's request, after undercover videos at two California offices appeared to show staffers offering to help two purported clients break the law.
Spokesman Scott Gerber said Brown sent a letter to Schwarzenegger last week agreeing to look into whether the group's employees did anything illegal. Brown said he would also investigate whether the surreptitious recording of the meetings in ACORN's San Diego and San Bernardino offices violated California privacy laws, a subject the governor did not raise.
Gerber is the press official who the Chronicle now says has admitted routinely taping his phone calls from reporters. Penal Code Section 832 allows for prosecution as a crime, as well as civil lawsuits for damages, of the recording of "confidential communications" without the consent of all parties. That ban, says the statute,
includes 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 in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
Some attorneys have been quoted as opining that the Brown press spokesman's recording of the reporters' phone inquiries may have been ethically wrong and deplorable, but was not a criminal violation of Section 832. But reporters interviewing sources probably seldom if ever want the content of their questions known—at least until they break their story. And they probably don't expect their interviews to be recorded, particularly by a government agency, and a law enforcement agency at that.
The California Supreme Court has interpreted Section 832 as meaning that a communication is confidential if at least one party to a conversation has “an objectively reasonable expectation that the conversation is not being overheard or recorded.” Flanagan v. Flanagan, 27. Cal. 4th 766 (2002).
If Brown's office does not even investigate the possibility that his own agent had a continuing practice of violating the law, his probe of those who recorded the ACORN interviews will strike many as hypocritical and, even worse, strictly political.