NBC's Dateline Search Was Government Action Where Dateline Cooperated with State

Brokers' Choice of America v. NBC Universal, Inc., 2014 WL 3307834 (7/9/14) (Col.) (Published) - The search by NBC's Dateline constituted state action where: both Alabama and NBC were interested investigating fraudulent sales of annuities to seniors; knowing the producers would use hidden cameras to record a training seminar for insurance brokers, Alabama officials supplied the producers with insurance licenses they could not otherwise obtain; the trainers restricted the seminar to those with such licenses; NBC agreed to share with Alabama the information and recordings it acquired during its investigation and did so after the seminar.

Nonetheless, no Fourth Amendment violation occurred. The trickery and deception used was not so extreme that it deprived the trainers of the ability to make a fair assessment of the need to surrender their privacy. Generally misrepresentation of official capacity is not beyond the Fourth Amendment's limits. What happened here was akin to undercover officers pretending to be drug dealers. There was no coercion involved. It didn't matter that the trainers specifically prohibited recording the seminars. While perhaps a breach of contract, the recording passed constitutional muster. Surreptitious recording is not violative of the Fourth Amendment if statements are made in the presence of outsiders. The 10th distinguished Alabama's conduct from that of the officers in Hanlon v. Berger, 526 U.S. 808 (1999) and Wilson v. Layne, 526 U.S. 603 (1999) where officers invited media along to observe the execution of warrants. In those cases the government used its coercive powers to gain access and the media did not serve any investigative purpose.