Pranksters who recorded Buddy Nix-Mark Dominik phone call may have committed a felony

You probably have heard that a couple of kids, with a little luck and a lot of chutzpah, were able to merge two separate phone calls involving Buffalo Bills GM Buddy Nix and Tampa Bay Buccaneers GM Mark Dominik. They then recorded the conversation between Nix and Dominik, which was later revealed on Deadspin. Sounds like some pretty complicated and hi-tech stuff right?

Actually, it’s pretty easy to do:

Now, you might be thinking that you could have a lot of fun with this feature alongside a recording device, but beware: there’s a fair possibility that the kids who pulled off this prank could be in a lot of trouble. Why? What they did is illegal in New York and in Florida.

Having litigated this issue in California, I can tell you that one needs to be cautious about recording confidential communications. In New York, under N.Y. Penal Law §§ 250.00, 250.05, “A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication. Eavesdropping is a class E felony.” … “Intercepting or accessing of an electronic communication” … mean[s] the intentional acquiring, receiving, collecting, overhearing, or recording of an electronic communication, without the consent of the sender or intended receiver thereof …” (emphasis mine).

Since the eavesdroppers weren’t the intended receivers of the communication between Nix and Dominik, it appears that they have committed a felony. Florida’s laws on this issue are even stricter than New York’s; Florida is one of 12 states that require all parties of a telephone conversation to consent to recording, regardless of whether or not they were an intended receiver of a communication.

Even if New York or Florida don’t press charges, this breach of privacy is probably actionable in a civil court. Nix could sue the perpetrators in New York, and Dominik could do the same in Florida.

I wouldn’t be surprised if the NFL made an example out of the perpetrators. We may be hearing more about this in the weeks and months to come.

Andrew J. Botros is an attorney with the Law Office of James D. Scott, a San Diego law firm. The Law Office of James D. Scott specializes in high-asset and high-income family law matters, with a niche representing professional athletes in divorce and paternity cases.