Was "Junk" Protester's Taping of TSA Agents Legal?

FREE PRESS

By Anne Lowe

An Oceanside man who refused to undergo an intimate airport security pat-down made national headlines after discreetly recording the incident and posting the videos on Youtube. His videotaping the encounter raises the same risk issues faced by journalists.

John Tyner will not be subject to a $10,000 fine from the Transportation Security Administration (TSA), the Voice of San Diego reports, asking whether it's possible for the security officers to claim their privacy rights were violated when Tyner secretly recorded them.

California has some of the nation's toughest regulations regarding the recording of private conversations whether they're in person or over the phone. With rare exceptions, people can't record the conversations unless both parties give permission, as a spokesman for Governor-elect Jerry Brown learned after secretly taping calls with reporters last year.

However, not every conversation is considered private under the law, said Michael Niborski, a Los Angeles media attorney.

"The key question is whether the person who's being recorded has an expectation of privacy," he said.

In a 1999 case, a state appeals court ruled that undercover journalists from Dateline NBC had a right to videotape a conversation at an outdoor restaurant patio without consent. The court ruled that two people who took part in the conversation had no right to a private conversation in a public restaurant. Nor, it ruled, was the taping "highly offensive to a reasonable person."

In another case, a court said a reporter had the right to secretly tape record conversations in a busy dial-a-psychic call center, Niborski said.

What about a security checkpoint at Lindbergh Field? Is it private?

"Given the fact that there are cameras and recording devices in airports and TSA officials are probably used to having their actions be recorded, the officials probably do not have an expectation that what they say and do is confidential," Niborski said.

However, he said, "if they were in a back room having a private discussion and the guy had his phone turned on in his briefcase, it would be a slightly different analysis."

The fact that the security officers work for the government is another point in Tyner's favor, said Kimberley Isbell, a staff attorney with the Citizen Media Law Project. Recently, a judge in Maryland — where Bill Clinton sex scandal figure Linda Tripp got in trouble for secretly taping phone conversations — ruled that police officers could be recorded during traffic stops, she said.

There's yet another reason that Tyner may be in the clear, said Terry Francke, head of the Californians Aware watchdog organization. "It would be particularly cheeky, if you'll pardon the expression, for TSA officials to assert their privacy rights to talk about groping airline passengers' privates."