Was It Illegal For Kim Kardashian To Record Taylor Swift's Phone Call With Kanye?
By releasing the phone call, which appeared to show Taylor giving her blessing to Kanye for his not-so-choice lyrics about the 1989 singer, did Kim do anything illegal?
Kim exposing Taylor on Snapchat! pic.twitter.com/NFxKKNc8pv — ㅤ (@v_aginal) July 18, 2016
Without knowing all the crucial information to give a definitive answer, the short answer is no one has a damn clue.
So, to try and get a clue, I spoke with media lawyer Cameron Stracher, and he gave Elite Daily the long answer.
This case has a million legal wrinkles, "it's very complicated" and it's impossible to say definitively Kim did something illegal until there's more information -- but we can make educated guesses about a few of these legal elements.
Let's explore some of the issues that could come up if Taylor brought this case to court.
Be prepared, though, because this is a legal mindfuck.
1. The act of recording and the act of publishing
Kim actually did two potentially illegal things here.
First, she recorded the conversation, which might have been illegal depending on where Taylor was when she took the phone call and where Kim and Kanye were when Kanye made the phone call.
Second, she published the footage on Snapchat for the world to see.
Almost every state, except for four states, have criminal penalties regarding the publication or disclosure of illegally recorded conversations.
But, the Supreme Court ruled in Bartnicki v. Vopper illegally recorded conversations obtained and published by a separate third party can be protected under the First Amendment.
However, in this situation, Kim was both the recorder and the publisher, so the SCOTUS case doesn't apply super neatly.
You can see how every level of this case is just living in the gray.
2. The reasonable expectation of privacy in the phone call
In another wrinkle, Stracher explained even in states with two-party consent laws, if there's no reasonable expectation of privacy, it doesn't matter if a person was being recorded without his or her knowledge.
Most of the rules that are about two-party or one-party only apply in the context where a person has a reasonable expectation of privacy... If I'm talking to you... at a store, and there's dozens of people around me and we're in a two-party state, but I'm secretly recording you, that may not be a violation of two-party rules because you're talking to me in a public place, everybody can hear you, you don't have a reasonable expectation of privacy. So it doesn't really matter in that case... You don't have a reasonable expectation of privacy.
An example less obvious than recording someone's conversation in a public place, like a store, as Stracher mentioned, would be someone talking on speakerphone.
In the phone call, Taylor was on speakerphone, so her words could be heard by anyone in the room, meaning she couldn't have had a reasonable expectation of privacy.
Stracher told Elite Daily,
Because Taylor was on speakerphone, I'd say Kim has a pretty good case of no reasonable expectation of privacy, unless Taylor didn't know she was on speaker.
So, the issue becomes, did Taylor know she was on speakerphone? Most people can tell when they are on speaker, so it'd be surprising to learn she didn't know.
If Taylor was aware, she, basically, would lose any legal grounds to argue her privacy was violated by the recording, something Stracher noted he had successfully argued in the past. But, like with every other legal wrinkle in this case, we're all still missing the answers to questions like this one.
Later, however, Kim told GQ Taylor's legal team sent a letter warning her and Kanye about releasing any footage of the phone call, so it would appear Taylor or her team knew something about being recorded.
3. The difference between criminal and civil lawsuits
Does your brain hurt yet? Yes? I'm sorry, but I promise we're almost through the legal issues.
Let's say what Kim did was illegal. Not only could a state bring criminal charges on behalf of Taylor against Kim, but Taylor could also file a civil lawsuit against Kim for Kim's actions or for any other reasons her legal team can drum up -- such as defamation of character and emotional distress.
Furthermore, even if Kim never goes to trial for criminal charges, Taylor could still file a civil lawsuit if the state in which she files allows it.
So, Kim may not face any charges, but she could still be liable for releasing the footage, and she could still face a hefty bill to pay from a civil lawsuit.
4. The hypotheticals
Without knowing where each party was located for the phone call, it's impossible to discuss any other possible outcomes.
But HYPOTHETICALLY, if either Taylor or Kim and Kanye were in a state at the time of the phone call where the law says all people being recorded must consent, things would get extremely complicated.
If that's the case, all kinds of questions arise, like which state's laws would be applied, where the case would take place and what it would mean if any one of the people involved lived in one state, but took the phone call in another state and used a phone number from yet a different state.
So, there you have it. You now know way too much about the extremely gray legality of recording phone calls, and I'll bet you feel really unresolved about whether or not Kim Kardashian did anything illegal.
I'm sure Taylor has a dozen lawyers weighing her options, so if she does file some kind of lawsuit and we get to see all the facts, you'll at least have some clue about what's going on and whether or not Taylor's lawsuit actually has a shot.
In my own non-expert legal opinion, this shit is way too complicated for any charges or lawsuits to be filed against anyone, but that doesn't mean this battle can't play out on social media.
Yup, it's one big beautiful train wreck of "he said, she said."
Citations: Tape-recording laws at a glance (Reporters Committee for Freedom of the Press), Did Kim and Kanye Break the Law in Releasing Taylor Swift's Audio? (Vulture), Bartnicki v. Vopper (Oyez), Kim Kardashian West on Kanye and Taylor Swift, What's in O.J.'s Bag, and Understanding Caitlyn (GQ)