In some states, only one side of a telephone conversation needs to consent to a call being taped for it to be legal. In others, both parties must give their permission for a call to be recorded above board.
What no one has been able to confirm as of yet is whether Kim Kardashian and Kanye West call Taylor Swift from a state in which one-party consent is all that’s needed when they discussed the now legendary reference to the singer in West’s song “Famous.”
Rumors and allegations have been swirling for quite some time as to whether Swift gave any kind of permission, or had any previous knowledge, of a line in the song in which the always humble and gracious West says “I feel like me and Taylor Swift might still have sex, I made that bitch famous.”
The conversation in question was released, at least in part, on Snapchat Sunday evening. According to a reportedly full transcript of the conversation, obtained and released by E! Online, West and Swift discussed his lyric suggesting they might have sex, to which Swift replies, “I’m like this close to overexposure.” After saying it’s “like a compliment, kind of,” West says “All I give a f—k about is you as a person and as a friend, I want things that make you feel good,” to which she replies, “That’s sweet.”
The transcript of the call, a recording of which Kardashian posted Sunday night, does not include a reference to the other half of the lyric.
In February, Swift’s lawyers reportedly contacted West’s, demanding any evidence of the conversation be destroyed, TMZ and other outlets report.
If the Kardashian/West portion of the conversation took place in California, the couple is in violation of California Penal Code 632, Anthony Varona, a media law professor from American University, tells Think Progress.
But there’s a potential loophole there too, Varona says. Yes, California is a two-party consent state, and Swift didn’t know at the time she was being recorded, but the law applies to “confidential communications,” or “conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation.” And that’s where Swift might have some trouble.
“Taylor Swift realized that she was talking to Kanye West. From the recording itself, it sounds like Taylor may have had an understanding—at least, an inkling, that (she was) on speaker. You can always hear when you’re on speakerphone…If she really expected the conversation to have been kept private and confidential, she should have asked him to take her off of speaker.”
Further, given West’s spouse and that family’s notoriety for filming every moment of their lives, “the question would be, really, whether Taylor Swift has the reasonable expectation that her conversation isn’t being recorded in any way, even without any specific disclosure by Kanye about the status of the phone call.”
To that argument, in an interview with GQ, Kardashian says her husband records everything, paying videographers “to film everything when he’s recording an album, for posterity (and possibly, one day, a documentary),” Vanity Fair states. In the interview, Kardashian says that Swift “[T]otally gave the okay. Rick Rubin was there,” name dropping the producer as a witness to the conversation.
Other legal professionals, however, are saying Kardashian and West could be in serious trouble and looking at jail time should Swift decide to press charges.
Ari Ezra Waldman, an associate professor and privacy law expert at New York Law School, tells Time not only is the recording potentially against the law, so is the release of the recording on Snapchat. “Publicizing (the call) on social media is an invasion of privacy, so therefore, Taylor could claim that publicizing it on social media was an invasion. Swift’s attorney would argue that she has a reasonable expectation of privacy on a private phone call.”
Varona also points out to Think Progress that Kardashian and West could be looking at defamation charges, should Swift decide to take action.
The couple has repeatedly affirmed that Swift gave her blessing to the “bitch” lyrics, something the recorded conversation does not contain. “I think that having Taylor Swift, a celebrity who has cultivated a very innocent, family-friendly image, saying that she assented expressly to being demeaned in that lyric with the bitch term in that very demeaning way, itself may be reputationally damaging to the extent that she might have a case under defamation laws.”
He adds that the whole situation “makes for the perfect media law case study.”
On the other hand, if Swift, at any point and in any way, consented to the recording, there’s no crime here, Waldman asserts.
Shortly after the Snapchat was posted, Swift took to Instagram, as one does, to dispute everything. She mostly addresses the missing discussion of the “that bitch” lyric, saying that portion of the video doesn’t exist because he never mentioned it to her.
“You don’t get to control someone’s emotional response to being called ‘that bitch’ in front of the entire world,” she wrote. “Of course I wanted to like the song. I wanted to believe Kanye when he told me that I would love the song. I wanted us to have a friendly relationship. He promised to play the song for me, but he never did.” The whole thing is part of a “character assassination,” she adds, concluding by saying she’d like to be done with this drama, “one that I have never asked to be a part of, since 2009.”