In California, if you record someone without obtaining that person’s permission, it’s an invasion of privacy, and it’s always against the law. Or is it? Are there legal exceptions to the state’s invasion of privacy law? That’s the question that will be answered when the State of California prosecutes two antiabortion activists on felony invasion of privacy charges.

On March 28, California Attorney General Xavier Becerra revealed the charges against David Robert Daleiden and Sandra Merritt, who are accused of video-recording fourteen people connected to Planned Parenthood without their consent in Pasadena, San Francisco, El Dorado, and Los Angeles.

An anti-abortion group based in Irvine posted some of the video online and claimed that Planned Parenthood is involved in selling fetal tissue. The video and the accusation incited threats of violence against Planned Parenthood facilities in several locations. Now, legal observers across the state are divided regarding the strength of the prosecution’s case against Daleiden and Merritt.

WILL THE STATE BE ABLE TO CONVICT DALEIDEN AND MERRITT?

Robert Weisberg, a law professor at Stanford, told the Los Angeles Times that the state should be able to convict the two defendants. He said the state appears to have the evidence it needs to win the convictions. Claiming that the videos were made “in the public interest to expose some very bad activity imputed to the victims here — well sorry, you can’t do that” in the state of California, according to Weisberg.

But former federal prosecutor Rory Little, now a UC Hastings law professor, believes the case is somewhat more complex. Little told the Times, “This one is really interesting because of the political tilt to it. We generally feel like there is a privilege for journalists. If this were the Washington Post having infiltrated the Aryan Brotherhood gang, we might be cheering and saying, ‘Good work.'” Little added, “the interesting question is not so much is this a hard criminal case to prove, but that there is going to be a First Amendment challenge to the use of the statute.”

A right to privacy is part of the California’s state constitution. For decades, California has provided extensive privacy protections beyond those offered by most other states. While many have successfully sued for invasion of privacy in California’s civil courts, invasion of privacy has rarely been prosecuted in the criminal courts. In 1998, the California Supreme Court determined that even the news media could be held liable – in civil cases – for recording anyone who is not a public figure without that person’s consent.

Horatio Mihet is the chief litigation lawyer for the Liberty Counsel, which is representing Sandra Merritt. He confirmed to the Los Angeles Times that the defense will contend Merritt and Daleiden were exercising their First Amendment rights as journalists. The defense will also argue that the prosecution of Merritt and Daleiden is motivated by politics rather than by a desire for justice.

However, “Even citizen journalists have to comply with criminal statutes,” according to Loyola law professor Laurie Levenson, a former federal prosecutor. “That is the bottom line,” she told the Times. Professor Levenson added, however, that the case is “not a slam dunk” for prosecutors. “This is really an important case in that it will help to define the boundaries for the confidentiality of organizations and the tactics that can be used in contentious issues like abortion,” she said.

WHAT MAKES THIS PROSECUTION PARTICULARLY COMPLICATED?

Motive is going to play a big role in the case. Merritt and Daleiden were not trying to blackmail anyone or obtain a profit from making the recordings. Because their goal was political – an effort to move public opinion regarding the abortion issue – the case is far more complicated than a straightforward criminal act motivated by profit.

But according to California Attorney General Xavier Becerra, motive won’t matter in this case. “The right to privacy is a cornerstone of California’s constitution and a right that is foundational in a free democratic society,” Becerra said. “We will not tolerate the criminal recording of confidential conversations.”

“Invasion of privacy” is a general category in California law that covers a number of illegal activities that include “peeping,” eavesdropping, using a concealed device to record another person’s body or undergarments, or using a hidden camera to record someone in a private area such as a dressing room, changing room, or bathroom.

In California, in most cases, a criminal invasion of privacy charge is a misdemeanor, punishable upon conviction by up to six months in jail and a fine of up to $1,000 for first-time offenders. For a second or subsequent violation, an offender can be sentenced to up to a year in jail and a fine of up to $2,000.

WHY ARE THE ALLEGED CRIMES BEING CHARGED AS FELONIES?

Daleiden and Merritt are being prosecuted for felonies, however, because they used phony driver’s licenses and fake identities to gain access to the Planned Parenthood officials they recorded. Anyone who is charged in Southern California with criminal invasion of privacy will need to discuss his or her legal rights and options with an experienced Long Beach criminal defense attorney.

In an editorial published on March 30th, the Los Angeles Times – no friend of the antiabortion movement – argued that charging Daleiden and Merritt with felonies is a “disturbingly aggressive” move by the state. The editorial recommended that “the state law forbidding recording of conversations should be applied narrowly, and to clear and egregious violations of privacy where the motive is personal gain.”

What’s clear is that Daleiden and Merritt were not seeking personal gain. Whether you agree with them or not, they’ve sacrificed rather than profited from their actions, and they now face the possibility of years in prison. An experienced Long Beach criminal defense attorney can help anyone in Southern California who is charged with peeping, eavesdropping, or illegally recording another person or persons – without regard to any ostensible motive.

The outcome of the case against Daleiden and Merritt will be closely watched by legal observers across the nation. The case could establish legal precedents, and a conviction is almost certain to be appealed. For now, if you are recording or taping anyone in the state of California for any reason whatsoever – and if you are not a law enforcement officer with a warrant – the best strategy is to obtain a signed consent form from everyone involved. Otherwise, you could find yourself on the wrong end of a civil lawsuit or even a criminal prosecution for the invasion of privacy.