more on California Supreme court prohibits recording Californians without their consent - regardless of where you are.

[David Farber <dave () farber net>]

Begin forwarded message:

From: "James S. Tyre" <jstyre () jstyre com>
Date: July 14, 2006 1:03:59 PM EDT
To: dave () farber net, ip () v2 listbox com
Cc: Lauren Weinstein <lauren () vortex com>
Subject: Re: [IP] more on California Supreme court prohibits  
recording Californians without their consent - regardless of where  
you are.

Respectfully, I disagree with Lauren's first sentence.

In 1984, in Calder v. Jones, the U. S. Supreme Court set forth the so- 
called "effects" test of personal jurisdiction, to deal with the  
situation when someone in another state who has no other significant  
contacts with the forum state directs and causes a harmful effect in  
the forum state.  Without going into all the details of the case, the  
Court said that jurisdiction in the forum state (here, California)  
was appropriate.

_Calder_ was a libel case, but since then, courts have expanded the  
doctrine to other personal wrongs.  The wrong here is one that, by  
definition, occurs in California - the law does not apply to a  
Californian who is in say, Minnesota, at the time.

Time and subsequent court decisions will tell, but it's not hard to  
imagine that California courts will use the _Calder_ effects test to  
find that jurisdiction in California is appropriate over an out of  
state caller that does not have a physical presence in California.

-Jim

At 09:55 AM 7/14/2006 -0400, David Farber wrote:
> might work against corp who do business in Cal
>
> Begin forwarded message:
>
> From: Lauren Weinstein <lauren () vortex com>
> Date: July 14, 2006 9:52:23 AM EDT
> To: dave () farber net
> Cc: lauren () vortex com
> Subject: Re: [IP] California Supreme court prohibits recording
> Californians without their consent - regardless of where you are.
>
>
> Dave,
>
> My "I'm not a lawyer" analysis of this ruling suggests that its
> enforceability may be problematic against entities who do not have a
> physical nexus here in California.  It's this state by state
> variation in 1-party vs. multiple-party laws on recording that has
> made the interstate situation so complicated, and it's not clear
> that anything short of changes at the federal level will be able to
> harmonize these laws.  Obviously, I'd prefer to see all states
> forced to abide by the multiple-party (all-party) standard, since
> the current situation is utterly loophole-ridden.
>
>
> --Lauren--
> Lauren Weinstein
> lauren () vortex com or lauren () pfir org
> Tel: +1 (818) 225-2800
> http://www.pfir.org/lauren
> Co-Founder, PFIR
>    - People For Internet Responsibility - http://www.pfir.org
> Co-Founder, IOIC
>    - International Open Internet Coalition - http://www.ioic.net
> Moderator, PRIVACY Forum - http://www.vortex.com
> Member, ACM Committee on Computers and Public Policy
> Lauren's Blog: http://lauren.vortex.com
> DayThink: http://daythink.vortex.com
>
>  - - -
>
> > Begin forwarded message:
> >
> > From: Ethan Ackerman <eackerma () u washington edu>
> > Date: July 13, 2006 3:35:59 PM EDT
> > To: David Farber <dave () farber net>
> > Subject: California Supreme court prohibits recording Californians
> > without their consent - regardless of where you are.
> >
> > Greetings Dave,
> > Many people, especially reporters, are familiar with state laws
> > prohibiting phone conversations from being recorded without the
> > consent of one or both parties to the call.  Some states, and federal
> > law, require only 1 party to consent, other states require both or  
> > all
> > parties to consent.  California is one such 'all-party' consent  
> > state.
> > (Think Linda Tripp recording Monica Lewinsky talking about her boss,
> > or the floridian couple recording Newt Gingrich coordinating his
> > ethics probe with John Boehner, as past examples of this  
> > distinction.)
> >
> > Well today, the California Supreme Court found that Georgia-based
> > employees of the Solomon Smith Barney brokerage who were taping
> > California customers with out notice or consent violated California
> > laws, even if they might have been complying with Georgia's '1 party'
> > consernt laws.
> >
> > While the court refused to fine the brokers, finding their  
> > reliance on
> > Georgia law reasonable, it did enjoin them from taping  
> > Californians in
> > the future.
> > Case is here:
> > http://www.courtinfo.ca.gov/opinions/documents/S124739.PDF
> >
> > This decision will likely have a large impact on investigative
> > reporting, and has definite impacts on other areas of privacy and
> > consumer protection law as well.
> >
> >
> > -Ethan


--------------------------------------------------------------------
James S. Tyre                                      jstyre () jstyre com
Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA 90230-4969
Co-founder, The Censorware Project             http://censorware.net
Policy Fellow, Electronic Frontier Foundation     http://www.eff.org



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