By Dan Kennedy • The press, politics, technology, culture and other passions

Oklahoma sheriff’s office responds by blaming the messenger

Old analog stereo tape recorder

Photo (cc) 2012 by Nenad Stojkovic

The sheriff’s office in McCurtain County, Oklahoma, has responded with the alacrity you’d hope for when wrongdoing is exposed. Oh, wait. They’re going to charge the journalist who recorded their nausea-inducing tirade of racism and violence with a felony for taping county officials without their knowledge. The Associated Press passes along a statement made by the sheriff:

There is and has been an ongoing investigation into multiple, significant violation(s) of the Oklahoma Security of Communications Act … which states that it is illegal to secretly record a conversation in which you are not involved and do not have the consent of at least one of the involved parties.

The AP also quotes a local journalism professor who says that the recording would be illegal only if the officials had a reasonable expectation of privacy.

Now, I have to say that I’m confused. Laws regarding audio recordings generally define “one party” as “either party.” The journalist, Bruce Willingham of the McCurtain Gazette-News, obviously gave his consent, and that would normally be regarded as sufficient. Let me return to the guide published by the Reporters Committee for Freedom of the Press, which I referred to in my earlier item.

In Oklahoma, “An individual who is a party to an in-person, telephone or electronic conversation, or who has the consent of one of the parties to the conversation, can lawfully record it or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act.” And: “The consent of at least one party to a conversation is required to record any oral communication.”

Obviously there’s more to it than that, and it’s possible that Willingham ran afoul of the law by leaving the room rather than participating in a “conversation.” (Then again, he was kicked out.) But contrast that with what the guide says about our state: “Massachusetts prohibits the recording, interception, use or disclosure of any conversation, whether in person or over the telephone, without the permission of all the parties.” If you are old enough and obsessive enough, you may recall that Linda Tripp was in the clear when she secretly recorded Monica Lewinsky while they were in Virginia, which, like Oklahoma, is a one-party state — but she broke the law when she recorded Lewinsky in Maryland, a two-party state.

Anyway, it’s good to see that McCurtain county officials have their priorities straight by going after the press rather than dealing with their own hateful dysfunction.

One more thing: The Washington Post story I referenced earlier described Willingham as a reporter for the Gazette-News. And so he is. But it turns out that he’s also the publisher. Probably the delivery guy and custodian as well. Anyway, he’s performed a tremendous public service, and he ought to be considered a candidate for a 2024 Pulitzer Prize.

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  1. Rich Carreiro

    “An individual who is a party to an in-person, telephone or electronic conversation, or who has the consent of one of the parties to the conversation,”

    Well, it sure seems like Willingham wasn’t a party to the recorded conversation. He wasn’t talking or otherwise participating in it. And none of the people who actually participated in it gave consent.

    Of course, as you noted, it’s pretty pathetic (though par for the course) for the sheriff’s office to go on about that and utterly fail to address the horrific behavior of its employees.

    • Dan Kennedy

      Seems like a technicality. There were two parties to the recording, and one of them consented. How is this any different from wearing a bug, which is legal in Oklahoma?

      • Rich Carreiro

        FWIW, from a lawyer (though not a OK one):

        • Dan Kennedy

          Yeah, that’s pretty interesting. I’m a little puzzled, though, by his claim that the officials had no expectation of privacy because they were holding a secret meeting in violation of the open meeting law. They didn’t deserve privacy, but why wouldn’t they have expected it?

    • The FBI needs to open an investigation into violations by the sheriff of 18 USC 241 and/or 18 USC 242. I have had it with this crap, and I’m sure Willingham has, too.

  2. Ian Caldwell

    This is an interesting situation where the reporter may have been in the wrong for continuing to record the meeting even after being kicked out, and yet, by being in the wrong, he has done a great public service to people of his community by exposing their government officials’ abhorent racism and approval of violence. A small monetary fine might be an approriate penalty for the reporter, but anything more than that would be too much given what the recording has revealed.

    • Yes, too many prosecutions of actual crime go awry due to process violations. In some cases that’s fair, such as with harsh interrogation. But illegally obtained true evidence should not derail a prosecution; the matter should be investigated separately. And leniency for doing illegal things for the right reasons should be formalized where it is not. A gray area is where someone is caught illegally recording and their suspicion proves to be wrong. Doing the right thing usually involves having skin in the game though.

      • Dan Kennedy

        But I want to emphasize that secretly recording someone you’re having a conversation with (legal in Oklahoma) versus secretly recording someone with a device you left behind after getting kicked out of a meeting is really a distinction with very little difference. Especially since county officials broke the law by kicking him out of the meeting and then conducting business.

        • Aha, the detail I missed was that the recorded discussion was in the very room where the public meeting was held, which I could not imagine. Wow, incredibly brazen for them to have that discussion right there!

          So no consent would be required where there is no expectation of privacy, But about that rule “The consent of at least one party to a conversation is required to record any oral communication.”, I’m surprised it doesn’t specify “… one party that is not involved in making the recording …”.

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