Summary
The court denied the defendants' motion in limine to exclude a surreptitiously recorded videotape containing audio of sexual activity. It held that the audio portion constitutes an oral communication under Rhode Island's Wiretap Law, the video camera with audio recorder is an intercepting device, and the victim's expectation of privacy establishes an improper purpose. The matter was set for trial.
Topics
Practice areas
Questions Presented
- Whether a videotape containing both visual images and audio sound of oral communication falls within the scope of the Rhode Island Wiretap Law.
- Whether the video camera recorder that captures audio is an 'intercepting device' under the statute.
- Whether the interception was made for an improper purpose (tortious act) as required by §11-35-21(c) where it invaded the victim's privacy.
Holdings
- Yes. The soundtrack of a videotape is within the scope of the Wiretap Law because it contains oral communication; the visual images alone would not suffice, but the presence of audio brings it under the statute.
- Yes. When a video camera records audio, the audio recorder is the acquiring mechanism and therefore an intercepting device under the statute.
- Yes. A violation of the victim's right to privacy under G.L. §9-1-28.1 can constitute the improper purpose or tortious act required by §11-35-21(c).
Key quotations
“The soundtrack of a videotape, no less than a free-standing tape recording is within the scope [of Title III].”
“Statutory definitions are themselves an indication of legislative intent and the Court will ordinarily give strict meaning to those definitions.”
“It is the means whereby the contents of the conversation are acquired that is crucial.”
“Intercepting the audio portion [of a closed circuit television picture of a meeting] would be an interception of an oral communication and the statute would apply to that portion.”
“. . . [I]t is also unarguable that television surveillance is exceedingly intrusive, especially in combination (as here) with audio surveillance.”
Factual background
Defendant Smith surreptitiously videotaped defendant O'Brien and a woman engaged in sexual activity without the woman's consent. The videotape included both video and audio. Defendants were charged with violating the Rhode Island Wiretap Law, G.L. §11-35-21(a)(1) and (c)(3), and O'Brien was also charged with conspiracy.
Procedural history
Defendants O'Brien and Smith moved in limine to exclude a surreptitiously recorded videotape, arguing it was not covered by the Rhode Island Wiretap Law. The court denied the motion.