1:48pm PT by Eriq Gardner
Did Kanye West Break the Law by Recording His Taylor Swift Phone Conversation?
Over the past few months, there's been a lot of discussion — probably too much — over whether Kanye West obtained Taylor Swift's permission to rap, "For all my Southside niggas that know me best / I feel like me and Taylor might still have sex / I made that bitch famous."
West probably didn't need consent for mentioning Swift (or calling her a "bitch") in his song, as best illustrated by a 2013 court ruling favoring Pitbull against Lindsay Lohan. The First Amendment protects such expression. Nevertheless, West spoke to Swift before "Famous" came out to run at least some of his lyrics by her. In doing so, he may have made a move that possibly did require consent: He recorded the conversation.
Now Kim Kardashian, West's wife, has uploaded the video on her Snapchat channel. After that happened Sunday night, Swift tweeted and instagrammed her disapproval, writing, "That moment when Kanye West secretly records your phone call, then Kim posts it on the Internet."
This situation raises several potential legal issues. And unfortunately, many of them are dependent on facts that aren't known for sure (or that are disputed). For instance, where was West during this phone call? Where was Swift? The answers could have implications for the legality of West's actions.
The issue of location probably would be the first one addressed in any legal case over a surreptitiously recorded phone conversation. Although federal law permits such recording whenever at least one party consents, 11 states require "two-party consent," meaning both sides of a phone conversation must OK the recording. That includes California, where penalties for violations include up to a year in prison.
If Swift and West both participated in the call in California, that's the worst-case scenario for West. But even if only West was in California and Swift was elsewhere, that's still bad for him because the state, unlike some others where "two-party consent" is required, doesn't provide him any breaks if Swift herself wasn't in the state during the time of the phone call, according to legal experts consulted by The Hollywood Reporter.
But the analysis doesn't end there.
First of all, "two-party consent" has taken some judicial heat in recent years. For example, in Illinois (West's home state), the state's Supreme Court ruled in 2014 that a provision against recording conversations was unconstitutional as an impingement of the First Amendment. California's own law also could undergo such an examination in the future.
Before that happens, though, if West were to find himself in court over his recording of Swift, there would likely be some quarrelling over whether there was an expectation of confidentiality. Even if Swift didn't explicitly consent to a recording, if a reasonable person would have assumed others were listening in, Swift might not have a claim against him. On the other hand, celebrities are afforded at least some privacy. Ask Hulk Hogan, who successfully sued Gawker with claims of wiretapping and intrusion upon seclusion.
Both West and Swift are perhaps the most public of public figures. What's more, West has appeared on his wife's reality TV show, Keeping Up With the Kardashians, which is filmed by a documentary-style crew. If someone gets a call from a member of the Kardashian family, is it unreasonable to think nobody else is listening?