The suit alleges that Andrew Breitbart, working in concert with O'Keefe and Giles, intercepted an "oral communication" using an electronic device, which would indeed be a violation of the act. The problem, however, is that the statute specifically defines "oral communication" in section 10-401(2)(i) as: "any conversation or words spoken to or by any person in private conversation."In other words, ACORN will be laughed out of court, even here in the People's Republic of Maryland. How much concern is this nuisance suit causing? James O'Keefe Twittered last night:
What this means . . . is that at least one of the parties to the conversation must have had a reasonable expectation of privacy in the conversation. In other words, if someone stands up in the town square and shouts out loud and someone else records it, that is not a violation of the act.
The problem for ACORN is that, as a matter of law, the employees at ACORN had no reasonable expectation of privacy in what they said to members of the public who entered their offices. As made clear by Katz v. United States and its progeny . . . "What a person exposes knowingly to the public, even in his own home or office, is not a subject of Fourth Amendment protection."
Celebrating ACORN lawsuit with a candlelight dinner on the Pacific Ocean.ACORN: Our Legal Advisors Are Incompetent, Too!