Some Hot Air commenters are confused about my analsyis of the ACORN Maryland Wiretap Act case. Although I am certainly not an expert on the Maryland Wiretap Act, I have litigated federal Wiretap Act cases, which makes me more informed than the average person (or even lawyer) to comment, especially since the Maryland Act is pretty clearly modeled after its Federal counterpart.

The main point of contention seems to concern my citation to the Maryland case Malpas v. State. Many commenters are eager to point out that Malpas is distinguishable on the facts. Of course it is; I didn’t cite Malpas for the proposition that it was controlling on the facts, I cited it for the proposition that the Katz “reasonable expectation of privacy” Fourth Amendment framework is incorporated into the “oral communication” portion of the Maryland Wiretap Act by Maryland caselaw. Specifically, the oft-quoted passage from Katz itself that “What a person exposes knowingly to the public, even in his own home or office, is not a subject of Fourth Amendment protection” is made directly applicable to whether a conversation is a “private conversation” under the Maryland Wiretap Act by Malpas.

The bottom line is that O’Keefe and Giles walked into a public place of business, represented themselves as members of the public, and recorded what they heard an employee who was serving the public say to two people who walked in off the street. The notion that there is a reasonable expectation of privacy on the part of the ACORN employees in this situation is laughable, the facts of the Malpas case aside.