Two-Party Consent, Taylor Swift And Kanye West
The most recent flareup of the Taylor Swift/Kanye West/Kim Kardashian West feud has, surprisingly enough, an angle that should delight legal nerds: two-party consent laws.
At issue: whether the recording Kanye made (and Kim released on Snapchat Sunday night) of his call with Swift about his reference to her in his song "Famous" was made illegally.
Recording Consent Laws
Whether or not a call can legally be recorded is governed by both federal law and individual state laws. In order to prevent improper wiretapping and surveillance by a third party, federal law and every state requires that at least one person on the call consents to the recording. But twelve states — including California, where Swift was when the call with Kanye took place — have stricter "two-party consent" laws.
'Two-Party Consent,' In Brief
In states with two-party consent laws, you must get permission from every party on the call — in this case, Kanye and Swift — before you can (legally) make a recording. Since all two-party consent laws are state laws, things can get dicey if a call was placed from a state without a two-party law to one with a two-party law.
Unfortunately, it is not always easy to tell which law applies to a communication, especially a phone call. For example, if you and the person you are recording are in different states, then it is difficult to say in advance whether federal or state law applies, and if state law applies which of the two (or more) relevant state laws will control the situation.
Is Kanye In Trouble?
It's unclear where Kanye was calling from, but if it was from one of the 38 states without a two-party consent law, he might be in the clear. But there's a good chance he could still be on the hook, since the courts will often side with the stricter (ie. two-party) law in interstate cases.
In addition, make sure you know in which state the other party resides, because you'll probably be subject to the stricter state's laws—so if you live in New York, which only requires one party's consent, but you're talking to someone in California, which requires two—you will likely need to get the other party's consent.
For example, a reporter located in the District of Columbia who records a telephone conversation without the consent of a party located in Maryland would not violate District of Columbia law, but could be liable under Maryland law. A court located in the District of Columbia may apply Maryland law, depending on its "conflict of laws" rules. Therefore, an aggrieved party may choose to file suit in either jurisdiction, depending on which law is more favorable to the party's claim.
[Reporters Committee For Freedom Of The Press]
So even if West was calling from a one-party state, he could likely be held liable, at least in California court.
Swift's Team Has Already Threatened Legal Action
Taylor Swift threatened Kanye West with criminal prosecution months ago for secretly recording her phone conversation with him … TMZ has learned. TMZ has a copy of a letter Taylor's lawyer sent to Kanye's attorney back in February…. Finally, Taylor also has the right to file a lawsuit against Kim and Kanye for violating the law.
[TMZ]
But Team Kardashian West Seems To Think There Was Two-Party Consent
In GQ's lengthy profile of Kardashian West, the conversation naturally turned towards the Swift/Kanye feud. She had this to say about the recording and Swift's knowledge of it:
Were they in touch after that?
"No. Maybe an attorney's letter she sent saying, 'Don't ever let that footage come out of me saying that. Destroy it.' "
She sent one?
"Yeah."
[GQ]
In summary, if Kanye didn't get Swift's consent to record the call, he might easily find himself in legal trouble. On the other hand, Kanye and Kim seem to believe that they have a letter proving Swift knew the call was recorded, so there's that.
Or maybe this is just a choreographed publicity stunt by all three of them and we're all just suckers.
