Privacy

Highlights from the Legal Guide: Liability for the Use of Recording Devices

CMLP Staff — Tue, 25 Mar 2008 09:17:46 -0400

This is the seventh in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on Recording Phone Calls, Conversations, Meetings and Hearings, which discusses federal and state laws relating to the use of recording equipment in specific private and semi-public settings. We also provide some practical tips for using recording devices, which should help you steer clear of legal trouble.

Recording Phone Calls, Conversations, Meetings and Hearings

Using a recording device, such as a microphone, video recorder, or camera, is often a helpful way to capture and preserve information about conversations, interviews, and phone calls in which you participate. It is also a good way to document what takes place in a court hearing or public meeting, whether for personal reference or later broadcast over the Internet.

Where you do your recording, and what you record, will largely dictate what legal limitations apply to your recording activities. It may also be the case (in fact, it is quite likely) that more than one set of laws or limitations might apply to your use of recording equipment. Before concluding that your activities are in the clear, you should read all of the sections listed below that might apply, as well as the section on Gathering Private Information elsewhere in this guide.

If you plan to record the conversations of others, whether they occur in person or over the telephone, you should review the section on Recording Phone Calls and Conversations. This section discusses federal and state wiretapping statutes that make it a crime to record telephone calls and private conversations in many circumstances. Keep in mind that conduct that could lead to criminal and civil liability under federal and state wiretapping statutes could also lead to possible liability for intrusion. Please refer to the state-specific sections of this guide to get a more in-depth overview of the wiretapping laws in the fifteen most populous U.S. states and the District of Columbia.

If you plan to use a recording device at a public meeting or court hearing, you should review the section on Recording Public Meetings and Court Hearings, which looks at the laws affecting your ability to make sound and video recordings and to take photographs in these quasi-public settings. Because laws vary greatly state-by-state, be sure to consult the state-specific sections of this guide for detailed information on the laws regarding use of recording devices at court hearings and public meetings. For more information on your general right to be present at court hearings and public meetings, please see the Access to Government Information section of this guide (forthcoming).

If you plan to take photographs, video, or audio of people engaged in private activities in places where they reasonably expect to be private, you should also read the section on Gathering Private Information in this guide. Various privacy laws could subject you to liability in this context, so you should proceed with caution if you will be recording private activities.

Once you've reviewed the other sections and are prepared to proceed, you should carefully review the section on Practical Tips for Recording Phone Calls, Conversations, Meetings, and Hearings. This section provides some practical guidelines for using recording devices, which should help you steer clear of legal trouble.

Browse any of the sections below to get started:

Recording Phone Calls and Conversations

Recording Public Meetings and Court Hearings

Practical Tips for Recording Phone Calls, Conversations, Meetings, and Hearings

State Law: Recording

Practical Tips for Avoiding Liability

A number of laws affect your ability to use recording devices in various contexts. Here are some practical tips to help you avoid legal trouble when recording conversations, phone calls, meetings, and hearings.

Practical Tips for Recording Phone Calls and Conversations

Check the law of your state before you record a phone call or conversation. Recording phone calls and conversations without consent may expose you to criminal and civil liability, so you will want to be aware of what is permissible before taking action. When you do your research, pay attention to your state's consent requirement -- i.e., whether one party's consent is sufficient to make recording lawful, or whether you need to get all parties' consent. For state-specific information for the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recording section in this guide. For states not yet covered in this guide, see The Reporters Committee for Freedom of the Press' Can We Tape?

Play if safe and get consent to record from all the parties. In many states, the consent of one party is sufficient to make recording lawful. But the legal situation becomes more uncertain when parties to a phone call are located in different states. To avoid legal problems, it is best to get consent from all parties to this kind of multi-state conversation before recording. Even when all parties to a conversation are in the same place, it cannot hurt (and it may help) to get consent from everyone.

Get consent on tape. The best way to document that you have obtained consent is to record the consent along with the phone call or conversation. As a practical matter, this will require (1) notifying the person you intend to record of your intent to record; (2) getting consent off-the-record; (3) starting the recording; and then (4) asking the person to confirm on-the-record that he or she consents to the recording.

Don't be secretive. In some states, you can violate the law by recording secretly, even in a public place. Whenever possible, make it clear to those around you that you are recording. Don't hide your camera or tape recorder. Being upfront puts people on notice that they are being recorded, affords them an opportunity to object, and undercuts any argument that you are acting secretly.

Practical Tips for Recording Public Meetings and Court Hearings

Check the law of your state before you show up. State law varies greatly, especially when it comes to recording in the courtroom. Looking into the law ahead of time can help you understand what's possible and alert you to requirements you need to meet ahead of time. For state-specific information for the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recording section in this guide. For states not yet covered in this guide, see The Reporters Committee for Freedom of the Press' Open Government Guide (for public meetings) and the Radio-Television News Directors Association's Cameras in the Court: A State-By-State Guide (for court hearings).

Notify the clerk of the court or the governmental body holding the meeting well ahead of time that you plan to record. Many state laws require that you request permission in advance in order to record in a courtroom. This requirement is less common with respect to public meetings, but it may still be useful to advise the governmental body in question that you plan to record. In both cases, you get the opportunity to ask questions and find out more about any restrictions that may apply.

Don't be secretive. In some states, you can violate the law by recording secretly, even in a public place like a meeting or courtroom. Whenever possible, make it clear to those around you that you are recording. Don't hide your camera or tape recorder. Being upfront puts people on notice that they are being recorded, affords them an opportunity to object, and undercuts any argument that you are acting secretly.

The Net Remembers, for Good and Bad

Dan Gillmor — Wed, 27 Feb 2008 22:03:44 -0500

I have a column running on the Guardian’s website. It’s entitled “Freedom of information” — and is reprinted below:

What does a Swiss bank that does business in the Cayman Islands have in common with a Hong Kong actor who jets around the globe? They are object lessons this month in a reality that anyone handling information needs to understand. Like toothpaste squeezed from a tube, information, once out in the wild, is all but uncontainable.

The Julius Baer Bank is a protagonist in the now-famous Wikileaks case. The bank’s lawyers managed to persuade a US federal judge, Jeffrey White, that the first amendment of the US Constitution had no meaning, obtaining an injunction and follow-up order that, among other things, required blocking the visibility of the domain wikileaks.org in the internet’s Domain Name System (DNS). A former bank employee had posted documents on the anonymous whistle-blowing website, allegedly describing shady dealings - hmmm, Cayman Islands, Swiss banks - on behalf of clients.

“The orders don’t just direct the take down of existing content, they also enjoin any future publication of the material,” says David Ardia, director of the Citizen Media Law Project at Harvard University Law School’s Berkman Center for Internet & Society (of which I’m a co-founder). “Even more significantly, the second order requires anyone who receives notice of the order to refrain from publishing, distributing or linking to the documents.”

In a blog post on the project’s site, Ardia called the judge’s action “unthinkable”:

“He issued an order that is so broad I haven’t been able to find a single example in the US that comes close: he ordered the complete shutdown of the Wikileaks website. He did this not by ordering that the parties shut off access to the offending documents (that came in a second order), but by ordering that [Wikileaks’s domain registrar] erase the ‘navigation information’ that directs people to the site … . That is like telling a newspaper it can continue to print its paper, but the delivery drivers all have to go home.”

The judge blatantly abused his power. Luckily, due to the nature of the internet and the anger of the online community, it had precisely the opposite effect of what was intended.

First, Wikileaks’s proprietors are not stupid. They have several “mirror” sites with other domain names (such as wikileaks.be) where the bank documents, among 1.2 million other documents contributed by whistle-blowers around the world, can also be found. Meanwhile, people sympathetic to Wikileaks immediately began putting up their own mirrors and distributing the documents in question. And due to the judge’s (and bank’s) utter cluelessness about how the internet actually works, the injunction (essentially a rubber-stamp of something the bank’s lawyers wrote) didn’t prevent the Wikileaks site from being visible via its more direct URL - http://88.80.13.160/ - which the DNS translates into words we recognise.

If I were a customer of that bank, I’d quickly withdraw my business on several grounds, not least the institution’s inability to keep records secure in the first instance but also the way it flailed about once the records were public. (If I were a member of the US Congress I’d be launching an official inquiry into judge White’s fitness for office as well, though Congress is not noted these days for its understanding of, much less appreciation for, the Constitution.)

But the bank’s dilemma does elicit some sympathy, and suggests a larger issue that proponents of whistle-blowing and transparency - count me loudly among them - should acknowledge. The dissemination of information may be all but unstoppable, barring an absolute crackdown on and censorship of all online data (which could never be fully effective in any event). But there are troubling implications.

Consider, in that context, the sad case of Edison Chen, a Vancouver-born actor who now makes his base in Hong Kong. He famously took photographs of himself and at least five women (sequentially, not all together) in sexual situations and stored them on his laptop computer. After he took the machine for repairs, the photos made their way to the internet, apparently copied by a technician at the shop and then put online. It is trivially easy to find the images online now.

This was not about blowing whistles on possible corruption. Chen doesn’t deserve this, however foolish he was to leave the pictures, unencrypted, on a disk that he put in someone else’s hands. The women especially don’t deserve it, however foolish they were to participate in the photo sessions. These pictures were never meant to be public, and the people who participated in their distribution - including, in my view, anyone who continues to send them around - are morally and legally wrong. (Disclosure: I did obtain them to verify how easily this could be done, and then immediately deleted them from my computer.)

Chen, the women and the authorities can and probably should pursue various legal remedies to punish whoever put the photos on the internet. Apart from asking the rest of us to be decent and honourable, however, they have few further options.

The situations of Julius Baer Bank, Edison Chen and a host of others are fodder for the control freaks of our age. Governments and big business fear their power will dissolve. Moral crusaders fear almost everything. They all quake at the consequences of what they consider liberty run amuck.

So there are powerful forces at work to clamp down on this infinitely valuable medium. It can never be a 100% solution, of course, because digital information can be encrypted, disguised and otherwise manipulated to make porous even the most seemingly impenetrable barriers. But the rich and powerful interests that want to control our lives can make it vastly more difficult to have any measure of free speech.

I tend toward the absolutist side of the argument. Yes, there are negative consequences to freedom. Liberty brings risk. We take those risks because they are essential to progress, and to fundamental human rights. Abuses by the wielders of great power are much more dangerous than those by the rest of us.

But that doesn’t absolve us from doing the right thing. Let’s keep the control freaks at bay, but exercise some self-control, too.

(Cross-posted from the Center for Citizen Media Blog.)

CNET Offers Suggestions on How to Avoid Being Sued Over Your Site

CMLP Staff — Fri, 21 Sep 2007 14:50:36 -0400

CNET collaborated with Fred von Lohmann of the Electronic Frontier Foundation to come up with the helpful list 9 Fun Ways Web 2.o Startups Can Commit Legal Suicide. It includes some important pointers about managing users' private data, a reminder to startups to designate a copyright agent for DMCA takedown notices, and a word of caution for websites about expanding into print:

Thanks to Section 230 of the Communications Decency Act, you're protected from libel suits filed against you if your users write disparaging comments about other people or services on your site. That's how ZocDoc, a new Yelp-like service for finding doctors, can exist without being sued into the ground. But if you print out your user reviews, this no longer applies. So be careful if your customers or users ask for it.

We will be addressing many of the issues covered in the CNET piece in our forthcoming Legal Guide, and in the future we hope to take on cases involving some of these novel legal issues.

Revealing Undercover Police Officer's Identity Not Privacy Violation in New Mexico

David Ardia — Fri, 20 Jul 2007 10:16:39 -0400

To keep the police misconduct theme going here at the CMLP, I'll expand on a short post I read by Eugene Volokh on the Volokh Conspiracy. Volokh notes:

Revealing an undercover police officer's identity is not tortious in New Mexico, even when the speaker is aware that publicizing these identities may help others commit crimes against police officers; so the Tenth Circuit held last Friday in Alvarado v. KOB-TV.

In the lawsuit, Alvarado v. KOB-TV, 06-2001 (10th Cir. Jul. 13, 2007), the police officers claimed, among other things, that KOB-TV invaded their privacy when it broadcast a story about their alleged involvement in a sexual assault.

What makes this case interesting and unique is that the officers based their privacy claims on the public disclosure of their status as undercover officers.

Under New Mexico law, the privacy tort at issue in Alvarado, which is generally called "public disclosure of private facts," requires the disclosure of intimate or private facts that would be objectionable to a reasonable person. In addition, there must be a lack of legitimate public interest in the information for a privacy claim to succeed.

Noting that courts have generally treated allegations of police misconduct as worthy of public interest, the 10th Circuit rejected creating a broad rule that would shield the identities of undercover police officers:

Alvarado and Flores's privacy claim hinges on a proposed exception for undercover officers, i.e., that disclosure of their identities "lacks legitimate public interest" as a matter of law. We can find no precedent for such an exception, and we are not inclined to create one here merely on policy grounds . . . . Because allegations of police misconduct are in the public interest, and because there is no exception in the law for undercover officers, Alvarado's and Flores's claim cannot survive . . . .
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Can Public Records Be Too Public?

David Ardia — Thu, 28 Jun 2007 00:16:49 -0400

That is the question that Jason Fry raises in a provocative column in the Wall Street Journal Online. Fry writes that:

Property deeds, marriage and divorce records, court files, motor-vehicle information and tax documents are increasingly being digitized, and contain a wealth of information that few of us would want online: Social Security numbers, birth dates, maiden names and images of our signatures. Local governments have rushed to put those documents online for a decade or so, often without scrubbing them of such information. And that's made them potentially fertile ground for busybodies, stalkers and identity thieves.

I have no doubt that this comes as a shock to many people. But it shouldn't. The records being put online are public. They are available to anyone willing to schlep to the courthouse or county clerk. As Fry notes, "[o]pen records are a longstanding American tradition."

This is not to say that there isn't a real concern here. The easy availability of highly sensitive personal information such as social security numbers is a serious problem. Fry, however, repeatedly denigrates the users of these records, writing that the "Web [is] enabling drive-by voyeurism for the bored or petty -- or identity thieves in the cybercafes of, say, Nigeria or Romania."

But "busybodies, stalkers and identity thieves," aren't the only ones who use this information. All those Google map mashups that use local property and crime data to reveal street by street disparities between property valuations and crime rely on the digitization -- and public availability -- of these records.

Let's also not ignore the existing reality for most citizen journalists who don't have the financial resources to pay for access to the expensive commercial databases large media organizations have been using for years. For them, the digitization and online availability of public records has been a real boon. However we balance the competing interests involved, it's important to keep in mind the need to keep public records open and accessible.

Teen Arrested for Videotaping Police

Matt Lovell — Tue, 12 Jun 2007 20:02:39 -0400

An 18 year-old from Carlisle, Pennsylvania has been charged with a felony under Pennsylvania's wiretap statute -- for videotaping a police officer during a traffic stop.

Brian D. Kelly didn't think he was doing anything illegal when he used his videocamera to record a Carlisle police officer during a traffic stop. Making movies is one of his hobbies, he said, and the stop was just another interesting event to film. [...] Kelly, 18, of Carlisle, was arrested on a felony wiretapping charge, with a penalty of up to 7 years in state prison. [...] Kelly is charged under a state law that bars the intentional interception or recording of anyone's oral conversation without their consent.

One might think that the statute wouldn't apply to taping of public officials discharging their official duties in public places, but apparently that is not the case. Putting aside issues of whether civil liberties interests are best vindicated when there is rigorous oversight of those in power, this situation should provide a cautionary tale to video bloggers, podcasters and others who gather news by recording video and audio or just audio in Pennsylvania.

Whosarat.com

David Ardia — Tue, 22 May 2007 17:37:23 -0400

Interesting article in today's New York Times about Whosarat.com, which says it has identified 4,300 informers and 400 undercover agents, many of them from electronic court records. According to a Justice Department official quoted in the piece:

We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as www.whosarat.com for the clear purpose of witness intimidation, retaliation and harassment.

Well worth a read as it touches on many interesting -- and difficult -- issues concerning privacy, access to court records, and free speech.