WASHINGTON, September 17, 2016 – Taylor Swift threatened Kanye West with a lawsuit because he recorded a telephone conversation without her consent.
Wells Fargo Bank agreed to pay $8.5 million this past March, and agreed to better inform customers when they were being recorded. Customers sued alleging they were not informed quickly enough that their calls were being recorded.
A man calling a major Texas healthcare organization from his cell phone, while he was in California, sued the healthcare group after learning that his call was recorded without his knowledge, and that the group doesn’t always tell its callers they are being recorded.
The law regarding recording telephone conversations, and that of video-and-audio taping, is relatively simple to understand, but like most things in the law, sometimes there are wrinkles and grey areas. The law regarding taking pictures is also not absolute.
These are Federal and state wiretapping laws.
Voice recording has a single focus: “do you need the consent of only one, or all of the parties to the call or conversation before recording it?”
Federal law and most states allow recording if one party consents. This means that if the caller consents, he or she can record. It also means if the individual receiving the call consents, her or she can record. Neither of those individuals in these cases is required to get the consent of the other, nor to tell them the conversation is being recorded.
Twelve states have “two party,” or more specifically, “all party” consent laws.” This means that a recording without all individual participant’s consent is illegal, and doing so can land the person recording the exchange in jail charged with a criminal offense.
The recorder can also be sued in civil court for money damages.
The two-party consent states are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.
Of note, Illinois’ law was held unconstitutional in 2014.
When telephone calls cross state lines and involve different laws, it is not always clear which law will apply. For example, if the participants are in different states, then it is a grey area to assert which law, federal or state, applies, and if state law applies which of the two (or more) relevant state laws will control the situation.
The easy answer, therefore, is to opt in favor of the more restrictive two party consent law that requires all participants’ agreement.
A bigger discussion involves recording others who are in public, and then, even a bigger one, recording police or other government officials in public.
First, generally, people in public places must assume they might be photographed or even recorded. Their “expectation of privacy” is significantly less than if they were on a private telephone call. The law thus allows recordings of what can easily be seen or heard in public places, even if those people being recorded have not given their prior consent.
There are limits of course. Recordings may not be harassing, and trespassing is still a crime. Overzealous surveillance could be problematic, and using a long telephoto lens to record intimate activities inside a bedroom or bathroom of a private residence could subject the recorder to potential criminal sanctions and civil claims of violation of privacy rights.
Recording police is another one of the law’s grey areas. It would seem that there is a right to record them if they are performing their public duties. Courts are divided. Some have held that the police have authority to arrest anyone recording them who are in violation of the state’s wiretapping laws (the two party consent laws in the twelve states).
Regardless of which law, and regardless of whether the subject to be recorded is a private citizen or a public figure, laws prohibit bugging a room, secretly monitoring telephone conversations or intercepting computer communications.
But, if someone tapes a conversation illegally and then gives it to another (the press, a blogger, etc.) to “publish to the world,” such has been held acceptable, if the subject matter is of great public interest.
What is “great public interest” are the key words that will determine guilt or liability.
Hacking into telephone systems to obtain previously recorded conversations is illegal.
Photography is generally protected as a form of freedom of expression, but constitutional protections have limits. The protection focuses on a key word – reasonable – such that expressing yourself and exercising your rights must be reasonable as to time, place and manner.
The Department of Homeland Security has outlawed taking photographs or videos of facilities, buildings or infrastructure in a manner that would arouse suspicion in a reasonable person. Examples might be taking pictures of infrequently used access points, personnel performing security functions, or security related equipment.
Some states have laws barring photography and recording of farm activities.
Recording work activities rounds out this discussion. Recording co-workers and bosses, as might be gleaned from the above discussion about “grey” areas of the laws in other recording situations, is also not always legal. Recording a sexual harasser is great evidence. Getting recordings or proof of discrimination is also a plus to prove what occurred. The laws in this area pretty much follow the one-party or two-party wiretapping laws. The trouble area is when a non-participant to a conversation records a conversation of others.
Workplace tapings are often very fact specific and resolve around the expectation of privacy of the individual being recorded. A court could find the individual being recorded did have such a reasonable expectation, and the recorder could end up in jail.
In general, taping a conversation at work is probably okay as long as it is done in one of the 38 one-party consent states. It should be okay if it is done in a public area such as a lobby, or a doors-open office or conference room.
Food for thought here: work taping could get the recorder fired (retaliation), and there is often little the recorder can then do, even if the recording is to prove or document illegal discrimination or harassment. Note that illegal here means those categories of constitutionally protected discrimination: race, age, sex, religion, national origin, disability, pregnancy or other protected category.
It does not mean bullying.
The Golden State Warriors have a new app that allows fans to view live scores and share posts on social media, and asks for permission to access fans’ smartphone microphones. The app does not disclose the extent that it listens in, according to a recent lawsuit. The suit claims the app is secretly taping people, even after the fan navigates away from the app by pressing the phone’s “home” button.
The suit alleges the fan must “hard close” the app, or it continues to listen and record.
Ah, technology. And what about the former Verizon guy who quit and now hawks for Sprint? Should he pipe in here and ask if you can hear me now?
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at www.thebusinessanswer.com.