That might first depend on the location of both stars during their chat.
Over the past few months, there is been lots of discussion — probably too much — over whether Kanye West got Taylor Swift’s permission to rap, “For all my Southside niggas that know me best / I feel like me and Taylor might still have sex / I made that bitch famous.”
The First Amendment protects such expression. However, West spoke to Swift before “Famous” came out to run at least some of his lyrics by her. He may have made a move that possibly did require approval in doing so: He recorded the conversation.
Now Kim Kardashian, the wife of West, has uploaded the video on her Snapchat channel. After that occurred Sunday night, Swift tweeted and instagrammed her disapproval, writing, “That moment when Kanye West covertly records your phone call, then Kim posts it on the Internet.”
Several legal issues that are possible are raised by this scenario. And unfortunately, many of them are dependent on facts that aren’t known for sure (or that are disputed). For instance, where was the call recorded?
Where was Swift? The responses could have consequences for the legality of West’s actions.
The problem of place likely would be the first one addressed in any legal case over a surreptitiously recorded phone conversation. Although national law allows such recording whenever at least one party accepts, eleven states require “two-party approval,” meaning both sides of a phone conversation must OK the recording. That includes California, where penalties for infractions include up to a year in prison.
If Swift and West both participated in the call in California, that’s the worst case scenario for West.
But the analysis doesn’t finish there.
First of all, “two party consent” has taken some judicial heat in recent years. For instance, in Illinois (West’s home state), the state’s Supreme Court ruled in 2014 a provision against record dialogues was unconstitutional as an impingement of the First Amendment. California’s own law additionally could get this kind of assessment in the future.
If West were to discover himself in court over his recording of Taylor Swift before that occurs, there would likely be some quarrelling over whether there was an expectation of confidentiality. Even if Swift did not explicitly consent to a recording, if a reasonable person would have presumed others were listening in, Swift might not have a claim against him. On the other hand, stars are afforded at least some privacy. Ask Hulk Hogan, who sued Gawker with claims of wiretapping and intrusion upon seclusion.
Both West and Swift are possibly the most public of public figures. What’s more, West has appeared on his wife’s reality TV show, Keeping Up With the Kardashians, which is filmed by a documentary-style team. Is it unreasonable to think nobody is listening if someone gets a call from an associate of the Kardashian family?