The Council on American Islamic Relations, or CAIR, is no stranger to controversy or litigation, though one can be forgiven for not recognizing its name or if one hasn’t heard of it since the George W. Bush administration. One of its lawsuits, CAIR v. Gaubatz, lasted just over 15 years before its quiet settlement and stipulation of dismissal this past Christmas Eve. The case began in October 2009, just a few days before I was first sworn into the bar, and it loomed over some of my legal work for several years. Recently, it has mostly lingered in the background, but its resolution—whatever it was—leaves unresolved a chilling provision of federal law: the criminal or tortious purpose exception to one-party consent for audio recording under federal law and the laws of several states and the District of Columbia.

That’s a mouthful, even for attorneys, so I’ll try to break it down. In the 1960s and 1970s, following Katz v. United States, federal law and the laws of most states were amended to require warrant procedures before law enforcement engaged in wiretapping. Although Katz found that the Fourth Amendment prohibits the government from electronically eavesdropping on one end of a suspect’s phone conversation in a telephone booth without a warrant, legislators and the public wanted to rein in the practice statutorily. Some of the resulting laws also prohibited a citizen from recording his own conversations on the phone or in person. Massachusetts, for instance, still prohibits secret audio recording by John or Jane Public under any circumstances, except for secretly recording law enforcement undertaking their duties in public following an as applied First Circuit ruling in 2020. (The court, to my enduring bewilderment, upheld the law against an overbreadth challenge in the same case.)

Most states and federal law, however, distinguished and continue to distinguish between eavesdropping upon private conversations and recording one’s own conversations. Under the U.S. Code, one may not “intentionally intercept[], endeavor[] to intercept, or procure[] any other person to intercept or endeavor to intercept, any wire [or] oral . . . communication.” An “oral communication” is “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation,” which is like the Fourth Amendment analysis following Katz. But here’s the peculiar exception (emphasis added):

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire [or] oral . . . communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

So one may secretly record as a party to a communication or with one party’s consent, so long as it is not done for the purpose of committing a tort or crime. Easy enough, one might think.

This provision was nearly moribund for about 40 years until the CAIR case. According to CAIR, in April 2008, David Gaubatz, his son Chris, and a few others conspired to infiltrate CAIR’s headquarters in D.C. Chris Gaubatz did this by posing as a college student and practicing Muslim and acquiring an internship. Among other things, CAIR alleged that Gaubatz violated a confidentiality agreement, stole confidential documents, and secretly recorded conversations with a button camera during the internship.

In 2014, more than five years into the litigation, Judge Kollar-Kotelly ruled over the criminal/tortious purpose exception in summary judgment. CAIR, having claimed the undercover intern had a fiduciary duty to the organization, posited that Gaubatz’s recordings were made for the purpose of breaching that duty, negating his ability to record oral communications as a party and subjecting him to civil liability under federal and D.C. law for the in-office recordings. The claim survived summary judgment.

The rulings revealed several First Amendment problems with the law. Nearly every court to address audio recording has acknowledged that the activity, even when done secretly, implicates the First Amendment. But even under rational basis—a standard below the intermediate scrutiny applied to content-neutral laws—what is the governmental interest behind the tortious or criminal purpose exception? It cannot be privacy, because having a tortious or criminal purpose does not alter the definition of “oral communication” in any way. The flip side of this negates a governmental interest in preventing crimes or torts, for one may secretly record for any purpose at all in situations with no expectation of privacy. Stepping up into the standard of intermediate scrutiny (which actually applies), the law is not narrowly tailored: torts and crimes may be punished civilly or criminally, and there is no reason to separately punish a speech activity even if it is part and parcel of the crime or tort. But therein lies the biggest problem: one need not actually commit a crime or tort but merely have that purpose to be punished under the law! As Judge Kollar-Kotelly wrote when denying a motion to reconsider summary judgment: “Nowhere did the Court suggest that one-party consent exception required being able to actually prevail on a breach of a fiduciary duty claim.” This suggests that applying the exception is no more constitutional than punishing a peaceable assembly allegedly undertaken for the purpose of causing a riot.

The CAIR precedent provides a potent cause of action—or, at least, fact-intensive attrition—against any long-term undercover journalism that utilizes secret recording. The consulting firm Democracy Partners sued my client, Project Veritas, for an undercover investigation leading up to the 2016 election under the same federal and D.C. laws. They claimed Veritas’s journalist, posing as an unpaid intern, had a fiduciary duty and secretly recorded for the purpose of breaching it. Not only did this claim survive summary judgment, but a jury found for Democracy Partners and the other plaintiffs on the claim in the fall of 2022. A post-trial motion for judgment as a matter of law is pending in the case. Meanwhile, a suit by the American Federation of Teachers Michigan union has claimed a Veritas journalist, also posing as an unpaid intern, secretly recorded in their Detroit office for the purpose of breaching a duty of loyalty. The case is now in its eighth year.

As for CAIR? Following the filing of a supplemental brief regarding motions in limine in September of 2018, the court did not rule over the issue until December of 2022, making for quite a pause on the docket. I have no knowledge of what caused this delay. Though the case was inching towards trial, it would not surprise me if the long wait took the wind out of everyone’s sails. At some point, the First Amendment issues of the tortious or criminal purpose exception will get a serious appellate vetting, but it won’t be from the case that made it such a pressing problem.

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