But, it feels so much like 1984.
Let’s be clear. I’m not talking about a Romney moment where, from the back of the room, someone is recording the candidate’s speech, stealing a comment that can torpedo a campaign.
Those are public moments even if the general public is not invited. Candidates know in those situations, cameras and audio recorders might be running. The recordings, done without permission, might be offensive and might even break the rules of the event host or sponsor, but the one hurt is the candidate and the campaign.
Instead, I’m referring to gatherings--maybe a post-debate or forum, after a town hall meeting, or political rally, outside of a church outing, in a shopping mall or cafeteria--where candidates and potential supporters might engage in what they would consider to be, private chats.
I’m talking about those moments when you think nobody is paying attention but those you see involved in the conversation. But, somebody actually is. Digital eyes and even worse, electronic ears are snooping upon your conversational moments with one of the candidates. You might be alone with the candidate. Or, you might be with friends or with a group. Nobody says they are recording your words. You don’t see any recorders. You feel comfortable that you can speak your mind.
But, you are mistaken. Somebody just might be pilfering your words as easily as if they were capturing them from a hidden electronic bug, planted on the wall.
The political snoop might be hired by a Super PAC; Or a campaign; Or a political party; Someone might be watching and listening, recording and perhaps even publishing your comments, questions or responses.
Sounds outrageous? Even in the age of phones that double as cameras, sounds unconscionable?
How about, it just might be unlawful?
As the Louisiana Gubernatorial campaign proceeds, it is becoming increasingly more obvious to me that what appears to be occurring during this state election might be duplicated nationally--unless we expose and stop the practice, now.
But, first, we must be aware our conversations appear to being swiped and our privacies just might be invaded.
Here are the facts:
I recently discovered young man named Josh who has been following Senator David Vitter’s opponents now for months. He has followed them at forums. He’s been there with his camera and extension pole in hand, as they walk to their cars, when they greet potential voters, when they hob nob with private audiences. On two occasions, I personally saw him standing behind a circle of people chatting with Jon Bel Edwards. I referred to this in a prior column.
The evidence is clear that Vitter’s Super PAC, Fund for Louisiana’s Future, is paying a conservative opposition research group America Rising PAC, $8000 per month. That payment has been going in part (or perhaps in whole) to fund opposition research on Vitter’s opponents. It appears clear that it is funding Josh as he follows and shoots.
Again, to the extent messaged above, there is no problem with recording candidates’ statements in an open forum or debate. However, when you engage in a private or small discussion with a candidate, do you expect somebody working on a behalf of the candidate’s opponent to be sucking up your words? Don’t you have your boundaries as to what can be captured by someone clearly not part of the conversation? I submit nobody has invited the cameraman to tape your conversation. You are unaware of his very presence.
I have been told that Josh even tracked one of Vitter’s opponents throughout the entire spring legislative session, recording the candidate’s private conversations with lobbyists and with others. The day I saw him in action, two weeks ago, he twice stood behind a small gathering of people talking with gubernatorial candidate Jon Bel Edwards. What was he doing? Did he inform those individuals that he was prying? Did he tell anyone they were being recorded? Did anyone of them know their words could one day be posted somewhere on the Internet? Did he introduce himself to them afterwards and tell them what he was doing?
He did not.
Maybe he has the right to stand feet behind the gathering with camera hovering overhead and with the participants unaware of his presence and of his shooting video (and presumably audio).
Then, maybe he, and or anyone else involved in what could be an enterprise of opposition research, are unaware or uncaring about the actual legalities of any audio recordings?
As mentioned, the actions of willfully intercepting, disclosing or using an oral communications could very well be a violation of Louisiana law and possibly even the laws of other states.
Here, the operative law is Louisiana law RS 15:1330 et. seq.
In my opinion, if Josh is intercepting an oral communication in which the person whose speech is captured “exhibits an expectation that the communication is not subject to interception under circumstances justifying such expectation”, then, the statute could very well be violated.
Again, anyone involved in the interception, disclosure or using an oral communication, whether they be shooting the video and audio or posting it online or paying for the procurement of it, could be implicated.
The Louisiana law also states that “any person who violates the provisions of this Section shall be fined not more than ten thousand dollars and imprisoned for not less than two years nor more than ten years at hard labor.”
Here’s what we know. Let me repeat: Vitter’s SuperPac is paying America Rising $8000 per month. It appears Josh is working for America Rising. The fact that there is an arrangement with Josh, America Rising and Vitter PAC could raise state and possibly even interstate legal issues.
Is the Vitter Campaign or the Senator personally involved?
The campaign definitely knows that Josh is filming the candidates. I am uncertain if the campaign or anyone associated with it knows that oral communications might be recorded. Nor do I know if Senator Vitter has any knowledge of Josh’s activities. The fact that Vitter has participated in over 30 forums this political season does raise the possibility that he has seen Josh with camera and pole overhead filming his opponents in conversation, but this is pure speculation on my part.
Also, at this point, assuming the oral communication is being intercepted in violation of the statute, I am not certain to what extent any of it has been disclosed or used. It does appear Vitter’s campaign “used” video and audio of a surveillance video of Jay Dardenne, one of Vitter’s opponents.
In a September 2, 2015 press release from the Vitter Campaign, entitled “The Truth Behind State Cars”, the Vitter campaign attempted to out Dardenne’s use of State Police escort for his campaign purposes. Dardenne had previously slammed Louisiana Governor Bobby Jindal for the governor’s use of the State Police protection for his many Presidential campaign travels. Jindal is forcing Louisiana to foot the bill.
The Vitter September 2 press release linked to these three videos that according to the Dardenne campaigns were taken when he was being trailed:
“Link to LSP driving Dardenne; Link to LSP driving Dardenne; Link to Dardenne admitting he uses LSP for campaign events.”
The first video, “LSP driving Dardenne, reporters are questioning Dardenne. Any 3rd party recording of a cameraman and news person interviewing a candidate would seem to be permissible. In the other videos, Dardenne is captured from a distance and the oral communication is somewhat muffled due to the wind and other external sounds. It is uncertain whether any of the individuals involved in the video were being made aware that their conversations were being recorded.
The videos were uploaded by someone under very suspicious circumstances to the accounts belonging to Sarah Smith, Jane Jones and Jerry Winter.
Assuming these are bogus names and shell Youtube accounts (which, to me, they strongly appear to be), why were the videos uploaded with so mysteriously and anonymously? Why does the press release link to these Youtube videos? Who put them up online? True, the videos were done under surveillance, but, the secretiveness suggests that somebody does not want to be linked to the video recordings. Why? What might they be hiding?
In fairness, Josh and America Rising, Vitter’s SuperPAC might not be the only individual and organization involved in this type of activity of following candidates, shooting videos (and arguably capturing audios) of the opposition. Also, assuming the Vitter campaign and the Senator himself are aware of the video and audio recordings, believe the practice is just politics in the 21st century, and are reciprocating by engaging in a practice that is being done to them, questions should be raised.
Questions such as—exactly what is being recorded? Are oral communications of non-candidates being captured? Who edited and uploaded the videos to Youtube?
Yes, I know, there is the remote possibility that only the candidate is being videoed and only his audio is being recorded. To me, this would be an absurd way of taking videos that defies logic. The evidence from the above-cited Youtube videos already show that video and oral communications are taken. Also, the law, to me, seems to equally prohibit the procuring and the actual intercepting of the oral communications as well as its use and disclosure. The key question in all of these videos is the “exhibits an expectation that the communication is not subject to interception under circumstances justifying such expectation” clause.
I am not foolish to think that only Vitter’s opponents are being subjected to this type of recording scrutiny.
According to a top Vitter campaign person, there are others engaged in the “follow the candidate” practice, filming Vitter.
The campaign has informed me that the American Bridge PAC (which is an organization supported by liberal advocate George Soros), is likewise frequently following and shooting video of Vitter. Moreover, the campaign claims that they believe the same organization was trailing Dr. Bill Cassidy throughout the US Senate race in their win over Mary Landrieu.
Here is a picture the campaign has recently sent to me. The campaign states that it shows someone from American Bridge PAC trailing Vitter this week. The man in the back is shooting video of a TV news person interviewing Vitter.
Just like the first Youtube video mentioned above, filming a TV interview seems not to be an issue that could implicate the statute. In my opinion, it would not be appropriate or lawful if the same person clandestinely captured the audio of those talking with Vitter (subject to the expectation of privacy clause). By comparison, in the image below showing Josh recording a conversation involving Edwards two weeks ago, he did so under the circumstances that he stood in the back of a crowd of people talking to Jon Bel Edwards. He was not facing them. Nor did he give them any indication that their comments could be captured. Nor do we know if Edwards knows he is being recorded.
After receiving this image from the Vitter Campaign, I replied with this above image and asked the following:
“Do you know if he is shooting the Senator in an environment where the Senator is having a private conversation with private individuals other than media?
Such as this one that I took when i saw Josh in action”
The campaign’s response:
Yes. He or their other person try all the time.
I then followed up with this question:
Are you aware of any surveillance video of the type we have discussed that has been used by the American Bridge PAC or by anyone and which video(s) might be online such as Youtube or some other service?
If so, could you point out any of these videos to me?
So far, the response has been “I’ll check”.
Should I receive a further response, I will update this column.
Let me emphasize, the purpose of this writing is not to engage in any “gotcha” against the Vitter team or any other candidate’s team, but to educate the public and the campaigns.
If anybody has broken any law, that is for others to determine. I am not aware of any other public posting of any questionable video other than the three videos of Dardenne. I also believe that there very well could be similar type of recordings as mentioned by the Vitter campaign.
Still, at least, in the case of the activity conducted by Josh, taking place, perhaps daily, which appears to be coordinated by the Super PAC and America Rising, and of which $8,000 per month seems to be transacted, one must wonder how the mountains off video are being used.
Hopefully as a product of this column, all political organizations (and perhaps campaigns) engaging in capturing of video will think twice about this type of activity. Also, hopefully, any campaign or organization associated with the interception, disclosure or use of these communications will investigate into whether laws have been violated.
Privacy is important, perhaps even more so in the realm of politics.
There are limits to political “investigation” of candidates as it relates to innocent and private individuals who want to be part of the civic process.
If anybody would understand the importance of privacy, it is Senator David Vitter. He and his wife have been very explicit about the sanctity of their private personal lives after the unfortunate scandal broke in 2007. His wife pleaded that they be left alone, not followed, not videoed as they traveled to church. They felt the media, some who reportedly camped out in front of their homes, were intruding upon their rights to be private citizens and to grieve as a family.
Also, privacy has been a “hot button” issue particularly within the conservative community as scandals surrounding NSA and the IRS have erupted.
Hopefully, if any one of his opponents or party organizations or Super PACS are party to trailing Vitter or any other candidate running for public office, they should likewise respect the privacies of the innocent. Likewise, just as investigations could be warranted as it relates to the surveillance of Vitter’s opponents, the same equally goes for anybody that might be engaged in the same or similar behavior when the Senator is engaged in discussions.
Last, hopefully, all candidates (here in Louisiana, running for governor, or running for any office anywhere in this country) realize they might have a duty to those who are unaware that their comments are being recorded by someone for surreptitious political purposes. Surely, if a candidate knows he or she is being wrongfully recorded, shouldn’t they take immediate action to warn the videographer of the rights of others? Likewise, shouldn’t they, at the very minimum, to inform those involved in the conversation that their statements might be recorded by someone engaged in opposition research?
Winning elections are extremely important. The days of secret cameras and audios is upon us now and will forever be part of our social and political fabrics. If a candidate puts himself or herself out for public service, they can expect their every public step will be made even more public due to technologies and the new political culture.
However, the same does not apply to the “average Joes and Janes” who still believe and who have reason to believe their communications fall within the ambit of reasonable zones of privacy.
Political opposition research can be done, but I believe, must be done within limits. Saying or believing that all is appropriate because the other side is engaging in a certain practice, does not give anybody the right to trespass over the same line.
It might be the way the high-stakes political games are being played. But, when innocent by-standers privacies are being invaded, it’s no longer a game.
With Louisiana’s election season now in full swing, we can help stem the tide on the privacy invasions coming soon to every hamlet, village and city in time for Elections 2016.
As things are stacking up, next year could indeed be the “1984 of Politics”. Our Louisiana political activists and candidates, our donors and our Super PACs, campaign employees and others can help ensure that the rights of the unwary individual bystanders should prevail over those who want to win at all costs.
Our political and some of our participating community leaders do not also need to contribute in becoming our Big Brothers.
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