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Did Kanye West break California law by secretly recording Taylor Swift?

This issue mostly comes up in civil cases, such as divorce, Gottlieb says.

Kanye West might have broken California law by secretly recording Taylor Swift, even though the recording helped him show Swift knew some of what he planned to say about her in his song Famous.

"Might have" because it's not clear where Swift was when she took the call: California? Nashville? New York? For that matter, it's not clear where West was when he made the call.

Swift's representatives did not return an email seeking clarification. West's representatives did not return an email seeking the same.

The distinction is important because laws banning or permitting secret recordings differ from state to state. California is a two-party consent state, meaning any recording must have the consent of both parties, the recorder and the recordee.

But New York is a one-party consent state (as are a majority of the states and the federal government), in which only one party need know the call is being recorded.

When different states' laws are in conflict, the process of deciding which law applies is complicated, even messy, says Michael J. Gottlieb, a partner in the Washington law firm of Boies, Schiller & Flexner who specializes in data-privacy cases.

"If (Swift) was in California (during the call), then this would be an easier question — California law would apply," Gottlieb says. "It's harder if she’s in another state that is a one-party consent state."

Any district attorney can decide whether to prosecute an alleged violation of his or her state's laws, but a first step is that the injured party (in this case, Swift) has to file a complaint or a police report. So far, there's no word that's happened.

The California Supreme Court held in 2006 that the state’s law applied to recordings of interstate telephone calls in a civil case in which a brokerage directed calls to a branch office in Georgia, a one-party consent state, and recorded them without notice to the callers. The court held that the California law applies "when a confidential communication takes place in part in California and in part in another state.”

Gottlieb says violations of consent laws are rarely enforced and thus there are few precedents. Plus, most of these laws were written in the telephone Stone Age, when most people had only land lines.

This issue mostly comes up in civil cases, such as divorce, Gottlieb says. He cites one New York case in which a resident of California recorded a conversation involving someone in New York.

"New York courts have held that when you have conflicting statutes, the location of the injury (meaning the person who is recorded without his or her knowledge) is what controls which law applies," Gottlieb says.

Thus, if West was in California and secretly recorded Swift when she was in New York, that most likely would not be illegal in New York, he says.

None of this answers other questions about the recording: Why did West feel the need to record Swift to begin with? When did Swift learn she had been recorded and what did she do about it? Why did West and wife Kim Kardashian wait until Sunday to discuss this on her reality show and release on Snapchat the video of West calling Swift? Has any state prosecutor reviewed this matter and decided not to charge West?

Contributing: Brad Heath 

Source: USA Today:

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