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Secret one-party recording legal in Mascia episode, experts say

Paul Christopher secretly recorded Joseph A. Mascia repeatedly using the N-word during a tirade about Buffalo Mayor Byron W. Brown, Common Council President Darius G. Pridgen and other black politicians.

Many people – including Mascia – think Christopher’s actions were illegal.

But in New York State, there is nothing illegal about what Christopher did, two top legal experts told The Buffalo News.

That is because New York is one of 38 states that do not bar “one-party taping.”

“If you and I have a conversation in New York State, and I record it without your knowledge, it is legal in this state,” said Joseph M. LaTona, a Buffalo defense attorney.

“Some people may think it’s sleazy, but it’s legal,” said Paul J. Cambria Jr., a defense attorney and First Amendment law expert. “Personally, I think it was sleazy on both ends – for Mascia to say such things and for the other guy to keep baiting him. But making the tape is legal.”

LaTona said that some people are surprised when he explains the state’s law to them.

“They’re surprised because they think you need a court order to tape someone, even if you are party to the conversation,” LaTona said. “As long as you are party to the conversation, you don’t need a court order.”

Mascia, a commissioner of the Buffalo Municipal Housing Authority and a candidate for the Council’s Fillmore District seat, has been in local headlines since Wednesday of last week, when The Buffalo News obtained a copy of a tape that Christopher made of a conversation between him and Mascia.

On the tape, Mascia is clearly heard spouting the N-word – at least eight times – when Christopher asks for his opinions of Brown, Pridgen, Assemblywoman Crystal D. Peoples-Stokes, D-Buffalo, and other prominent African-Americans in government. Mascia also was heard to complain that black politicians are trying to take total control of Buffalo.

Mascia has admitted making the remarks and has apologized for them, but he said Christopher illegally recorded the conversation.

“I’m not making excuses for the harm that’s been done, and not trying to deflect what I did,” Mascia said in an interview.

But he added that he believes that the tape recording is part of “a conspiracy” designed to “shut me up.”

From his understanding of the law, Mascia said, Christopher’s actions were “illegal.” He said he plans to ask the state Attorney General’s Office for a legal opinion on the matter.

Mascia said he believes that all parties involved in a conversation must consent before the conversation can be legally recorded.

That is not true, according to Cambria and LaTona, two attorneys who have worked for decades on legal issues involving one-party taping.

“In Pennsylvania or California, it’s a crime, but in New York State, you can do it legally,” Cambria said.

New York is one of the states in which an individual can secretly record other people – either on the telephone or in person – as long as the person who makes the recording is aware of it, according to the Digital Media Law Project, which is sponsored by Harvard University’s Berkman Center for Internet & Society. Federal laws on eavesdropping are essentially the same as New York’s statute, the two attorneys said.

While it was legal for Christopher to record his conversation with Mascia, it would be illegal – under both state and federal eavesdropping laws – for a third person to record the two men without their knowledge, the attorneys said.

With the ever-expanding use of social media and with cellphones used as recording devices, there are more opportunities than ever for people to make tapes of one another, both Cambria and LaTona said.

“I have told clients for many years, ‘Never say anything to anyone, either in public or private conversation, that you don’t want to hear played back in a courtroom someday,’ ” LaTona said.

“And now, I can add to that, never say anything that you wouldn’t want published in the newspaper or broadcast in the media.”

email: dherbeck@buffnews.com