At a recent hearing of the state Senate’s Public Affairs Committee, David Olson stood up from the audience and played a phone conversation he had secretly taped. The eight-member committee fell silent, straining to hear an angry voice saying he was the father of Olson’s biological child and telling Olson, “Fuck you, motherfucker.”
Olson told the committee that the man he taped, his children’s stepfather, had threatened his life during a custody dispute. Olson is on the Secretary of State’s Confidential Address Program, he testified, due to interactions with the stepfather—who he claims “attempted to kill me.”
At issue was SB 127, a bill—introduced by state Sen. Bill O’Neill, D-Bernalillo—that would outlaw recording a confidential conversation without the consent of everyone involved. Currently, New Mexico is one of 38 states that allow conversations to be recorded as long as just one person knows about it—even if it’s the person with the recorder.
A self-proclaimed victim of domestic violence, Olson, 48, argued that secret recordings have “saved my behind.”
“You allow people to open-carry and concealed-carry a weapon,” he told the committee. “But you won’t allow them to open- or concealed-carry a recorder for their protection? That’s ridiculous.”
State Sen. Craig Brandt, R-Sandoval, said Olson may have “actually changed my mind on this bill.” Brandt explained that his sister is from California—which requires all parties to consent to be recorded—and after Brandt encouraged her to secretly record an abusive spouse, a judge had to grant her immunity from prosecution.
Yet O’Neill got the most flak not from anti-domestic violence activists, but from the media.
“This bill is a great example…of introducing a bill and not having any idea of what the consequences will be,” he told the committee. He passed out an Albuquerque Journal editorial labeling the bill a “bad piece of legislation,” in part because it could impede journalists’ ability to gather information.
The editorial mentioned one of O’Neill’s reasons for introducing the bill: a leaked recording of Gov. Susana Martinez’ chief of staff, Keith Gardner—who, in an expletive-laden conversation, offered a friend state jobs and insulted former state Sen. Tim Jennings, D-Chaves [news, Sept. 12: “Giant in the Dark”].
The room erupted in laughter when O’Neill said the bill was not “just some crazy thing that I sponsored to protect Keith Gardner.”
“It’s not like I have this strange bipartisan affection for Keith Gardner,” he said. Instead, he said the bill stemmed from an incident in the ’90s in which a nonprofit board member secretly recorded a colleague, then used the recording to publicly humiliate and fire her.
“At that point,” he told the committee, “I thought to myself, ‘That is really lame. That’s creepy. It’s unsettling. Is that even legal?’”
Twelve other states have similar laws, he said, and this bill would only prohibit recording conversations where “there is an expectation of privacy.” O’Neill says people recording a perceived threat would be exempt from criminal charges.
Still, the opposition was fierce.
“The fact is, most states don’t do this, and there’s a lot of good reasons for that,” testified Gwyneth Doland, executive director for the Foundation for Open Government. “The unfortunate consequence of this bill is that it would severely limit the ability of the public and media to ensure the accountability, accuracy and transparency of the government.”
“One of the roles of newspapers is to act as a public watchdog,” added Philip Lucey, executive director of the New Mexico Press Association, “and the nature of that subject doesn’t always allow for the consent of recordings.”
The committee tabled the bill, effectively postponing it indefinitely. O’Neill’s was the only vote against the motion.
The issue hits particularly close to home for SFR.
Last summer, before publishing leaked emails from the account of Modrall Sperling lawyer, lobbyist and Republican National Committee member Pat Rogers, SFR recorded off-the-record conversations with Rogers without his consent to ensure the accuracy of its reporting [news, July 18: “A Higher Power”].
Rogers later admonished SFR for not adhering to Society of Professional Journalists’ ethics guidelines, which instruct journalists to “Avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public.”
In a recent on-the-record interview, Rogers, who specializes in media law, didn’t say whether he supports SB 127. He says SPJ guidelines offer reporters a “good ethical and moral compass.”
“If it’s being recorded, I think the SPJ makes it clear—you know, this isn’t as if this is an investigative thing…” he says. “You’re not in a grocery store looking for tainted meat or something, you know? The single thing you’re doing is recording in the event you get in some sort of dispute with me. What is it harm to say…‘Can I record it?’”