As Planned Parenthood defends itself against charges that it illegally profited from the donation of fetal tissue for medical research after an executive was secretly recorded by an anti-abortion group, another question has been largely overlooked: Whether the creation of the video was illegal under California's strict recording laws.
Deborah Nucatola, Planned Parenthood's senior director of medical services, was recorded in January 2014 in what she apparently believed to be a lunch with representatives of a fetal tissue collection company that was looking to work with abortion providers. The Center for Medical Progress, an anti-abortion group set up in 2013, charges that their video shows Nucatola naming prices for fetal specimens (or as they put it, "baby parts") and describing violating federal law on abortion procedures. A transcript of the video makes clear she was discussing reimbursement for clinic space and staff time. Profiting from such donations would violate federal law.
One of the members of the Center for Medical Progress, the group behind the video, told The Washington Post they used “police-quality undercover cameras.” A spokeswoman for the group told msnbc, "The recording was done in full compliance with the California recording statute."
But experts aren't as sure it's so black and white.
"California is an all party consent state -- meaning a person can be liable for invasion of privacy if they record without the consent of all the parties to a confidential communication," Dave Heller, deputy director of the Media Law Resource Center, wrote in an email. "So, to have a claim, the target of a hidden camera sting must have had a reasonable expectation that their conversation would be private and not, for example, be overheard or recorded in a public setting." But, he added, "In California, claims over hidden camera filming typically involve disputed issues of fact between both sides. In that case, the matter could go to a jury to decide."
Such a jury would have to determine whether the restaurant counts as a public place or not, and whether this was a conversation the Planned Parenthood official expected would be disclosed to others. "The anti-abortion group may claim that they were filming in a public place, where others could hear the conversation, and perhaps also told the Planned Parenthood official that the conversation would be disclosed to others. In that sense, the group can argue that they complied with the law," Heller said.
Chris Jay Hoofnagle, director of Information Privacy Programs at the Berkeley Center for Law & Technology, wrote in an email, "On wiretapping, 'consent' has to be actual (as in, may I record this) or implied from the circumstances (as in situations where the speaker can clearly see the recording device). Thus, if the doctor claims no knowledge of the recording, there probably is a problem."
According to the Digital Media Law Project, "In addition to subjecting you to criminal prosecution, violating the California wiretapping law can expose you to a civil lawsuit for damages by an injured party."
A spokeswoman for Planned Parenthood would only confirm that the video was recorded in California.
At a press conference Thursday, House Speaker John Boehner was asked about Planned Parenthood's defense that it facilitates voluntary donations for the purpose of medical research. “If you saw the video, it certainly didn’t strike me that way,” Boehner said. “I could talk about the video, but I think I’d vomit trying to talk about it. It’s disgusting.”
CQ Roll Call reported that some Republican lawmakers were shown the video weeks in advance of its release. When the newspaper's reporter asked why members of Congress hadn't acted immediately if they believed the video showed illegal activity, Rep. Tim Murphy, a member of the Pro-Life Caucus, "struggled for an answer before abruptly ending the interview with CQ Roll Call, saying he should not be quoted and remarking, 'This interview didn’t happen.'”