The tape of Mitt Romney speaking at a private fund raising event, revealed to us by Mother Jones magazine last month, was in a word: AWESOME! The person who pulled this off without getting caught did a remarkably good job and we are grateful for this huge bit of insight. After all didn’t we suspect this is how Romney really felt about us? Aren’t we glad we have the opportunity to smite him with his own words and watch him recoil in shame for being dumb enough to get caught? Well, yes we did and yes we are. After all the man is running for president and seems to think he doesn’t need our votes.
The power of the smart phone is seductive. In this protracted downturn of the economy where many of us are either looking for work or hoping to keep our job it’s easy to develop feelings of irrelevancy. The opportunity to uncover a truth or expose someone publicly in order to alleviate our own sense of worthlessness and shame with righteous noble cause, can appear to be a great reward, especially when the investment is a mere $1 APP.
Audio Memos for iPhone reportedly gives you fabulous recordings of unlimited time with lots of options for adding images, sharing, Cloud storage, etc. etc. Newer iPhones come with a built in voice recording application, too. But if these don’t work for you, there’s a gazillion other similar apps free, cheap and otherwise, to get the job done and put the power of control back into your hands. Consider CopRecorder, the app designed for the lead footed imbiber, the Occupy activist, and anyone remotely resembling Rodney King. VR+Lite for Blackberry gives you the ability to record that politician you wait on who’s always inviting you to ‘join him in congress’ AND post this recording to Facebook or Twitter before he signs his credit card receipt. From blundering, lying candidates, greedy co-workers, cheating spouses, abusive partners, criminal neighbors, lusting landlords, disrespectful employees, corrupt bosses, or environmental polluters…there’s an app to help you expose and crush them- Oh yes!
But should you? Probably, you should not.
Lawyers are increasingly encouraging corporate clients to establish strict “no-recording” policy even in the 38 states that have single-party consent laws. Leave it to corporations to understand quickly how this bit of “super sleuth power” can put a dent in their profits with lawsuits and penalties, regardless of who is doing the recording and who did the deed that prompted it. Even if immediate costs are not high, long-term damage to corporate or personal image can result from illegal surveillance when recordings are shared or made public.
“So what?!” you say, “If corporations aren’t on the up and up they should be publicly disgraced." "A cheater ought to be exposed!" "A politician that votes for abortion restrictions while twisting his mistress’s arm to terminate the evidence of their relationship, deserves public humiliation." "That person who dared to question my authority should be squashed with my indignation and my Android!” Well then, consider how indignant you’d be if some one was recording you, say, in a restroom stall or from under your work desk, perhaps while blowing steam about the boss or sharing your uncouth weekend antics at lunch time with co-workers. How cooly collected might you be when set up by the likes of Live Action, in your work place, in a way that is intended to be so absurd, you’ll flounder and make an ass of yourself- unknowingly on camera- the recording readily edited to enhance the rapidly hardening cellulite pockmarks of your new public image? Consider at length how wire-tapping laws govern FBI monitoring of phone calls, but not your "private" email or internet use. Not so amusing, now, is it? Everyone has a right to a fair trial. When you record and "publish," without consent, one can argue that you have appointed yourself to be plaintiff, judge and jury. The sentence you've handed down: a public humiliation for the one you've deemed guilty. So what, exactly is legal and not?
First, let me say that I am not a lawyer- Not a lawyer, Not lawyer, Not!
Second, laws regarding digital surveillance vary among states. You must do your own research on this matter. Some legislative tidbits to gnaw on while you’re downloading CopRecorder:
The Omnibus Crime Control and Street Safety Act of 1968 set guidelines for intercepting conversations, which was otherwise considered to be an illegal violation of privacy.Did you get that?
An updated version of OCC&SSA, in 1986, the Electronic Communications Privacy Act (ECPA) sought to include computer technology and 2001 ushered in the Store Communications Act- for all those emails you haven’t deleted!
These laws pertain to communications via electronic devices, wire (telephone), and in-person, oral conversations.
The Federal Wiretap Act, 18 U.S.C. §§2510 to 2521 states that NO person can intercept and contain oral, wire, or electronic communications, NOR use or NOR endeavor to use such illegally obtained information, NOR disclose to any person the contents of the illegally captured conversation.
Exceptions to the Wiretap law can get complicated. One court may conclude that using extensions of home phones to monitor the extra-marital affairs of your spouse is NOT a normal use of the phone and therefore not an exception, but a recording device attached to the extension has persuaded allowance from courts in other cases. Phone messages left on answering machines are not protected as there are limitations to expecting these to remain private. However, an oral conversation does NOT need to be behind closed doors to be lawfully covered.
“….a conversation held in a secluded restaurant, apart from the presence of strangers, and with efforts to keep the conversation confidential is protected.”Even in an office or place of business, if the person being recorded has a reasonable expectation that she or he is speaking in private, the content of that conversation is protected. Spouses are pretty much NOT included in any exceptions, no matter what she said about your mother. Recording child visitation with an estranged spouse can be an exception, but only, only if there is a very good reason to suspect such visits are harmful to the child’s safety.
You’ve heard that so long as one person knows a conversation is being taped it’s legal? (Eep! Wrong). There are Single-Party Consent laws, yes, but it remains that erring on the side of caution is best here. Detailed exceptions are made specifically for law enforcement and you should remember that the need for such detail comes out of the desire to make the exceptions stand up to scrutiny in a criminal court. Additionally, the intent behind making the recording is important. There are no exceptions for tapes made with criminal purposes, such as extortion. There are no exceptions for tortious intent. What is tort? It is the intentional interference in the business relations of two parties by a third who seeks to cause one to breach a contract or decline to enter a contract with the second, which without such interference would have predictably happened. Tortious interference works on a large scale in corporation land but also in business relationships between people. So about that b!t@h in the office you can’t stand, who’s vocally irked with the management and having a bad moment? Think twice about recording her and sharing it with your associates & co-workers. You may find yourself, and rightfully so, in the unemployment line. In contrast the neighbor you can hear through the walls as he engages in a crime or school bus driver that’s hurling nasties at the kids can’t expect that their behavior will be protected under privacy laws.
All this and more falls under the federal Wiretapping Act, but states have their own takes on privacy. Two-Party Consent laws exist in California, Conneticut, Florida, Illinois, Maryland, Massachusetts, Missouri, Montana, Nevada, New Hampshire, Pennsylvania, and my own home state, Washington. In these states, the consent of all effected parties must be had before recording can take place. Criminal as well as civil charges can be brought against a person for unlawful containment of a conversation. In California, for example the fine is $2,500 and up to a year in jail for a one time offense. Damages to the individual can be sought as well, for psychological stress, loss of work/business or reputation. In fact, all of the States have criminal penalties for unlawful taping of conversations- all except Vermont. So don’t expect to get away with your spy game just because YOU know you are doing it. Lawyers are reluctant to use such evidence even in places where it is technically legal. Surreptitious recordings are generally obtained through deceitful activity and can provoke scrutiny of lawyers and clients if obtained by fraud or other misconduct. If you really have a Silent Spring sort of whistle blowing data mining adventure underway, seek legal advice before tapping the record icon!
Once you’ve made the recording, it is no doubt tempting to share your “heroic” efforts to expose ‘evil’ and re-establish decency in the world. Instead ask yourself- “Do I want to make hostile witnesses of my friends, family or associates?” Should criminal charges be brought against you it is possible you will make such inconveniences for yourself. In some cases just making the recording is enough to land you in legal trouble without sharing it with anyone, even in the same states that would make exception for the capturing of criminal behavior. You may think your friends, your employer and associates will keep mum about your noble spy work, but when your unlawful acquisition makes the rounds, chances are someone will rat you out rather than be party to the crime. Finally, what you do with someone else’s unlawfully obtained content is worth some long and careful thought as to what your liability for damages might be. Possession and publishing may be criminal even if the material was created by someone else. One lawyer reports that clients increasingly arrive in her office with recorded evidence as everyone, it seems, has a cell phone. They have the means so they don’t think twice about it- it’s becoming a norm. Another lawyer says he makes a point of physically jumping back several steps- with emphasis- whenever a potential client pulls out a recording device they want to play for him. Should someone present such evidence to you, possibly it is best to do the same. Normal or common does not equal law abiding. If your purpose is truly noble take the time to cover legalities.
So what about the recording of Romney at a ‘private fundraiser?’ My non-existent law degree aside, I’d opine that when you stand on a podium in a room full of contributors and hired help, for the purpose of becoming president, you are NOT in a private conversation. So kudos to the event’s catering staff. As for the rest of us wannabe detectives, investigative journalists and bullshit stoppers: Proceed with Caution!
Sat Oct 13, 2012 at 12:20 PM PT: On Oct 10, 2012 DNA reports that Hulk Hogan has filed charges against his BFF after tapes of Hogan doing the naughty dance with BFF's estranged wife were posted online.. If that doesn't put things in perspective, what can I tell you! http://www.dnaindia.com/...