This Conversation is Being Recorded



Patrick is a mid-40 year old geek with an undergraduate degree in mathematics and a master's degree in Information Systems. Nothing he says here has anything to do with the official position of his employer or any other institution.

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20 Responses

  1. Avatar Burt Likko says:

    …But don’t violate the law. For instance if you live in California, the applicable law would be Penal Code section 632:

    (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
    (b) The term “person” includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.
    (c) The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
    (d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.
    (e) This section does not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.
    (f) This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.

    And then there’s the Federal wiretapping law, 18 U.S.C. § 2510 et seq., which is generally interpreted to apply to the use of electronic devices recording both telephonic and in-person conversations; however, for Federal law the critical purpose is the reason a recording was made. Payne v. Norwest Corp., 911 F.Supp. 1299, 1304 (D.Mont. 1995). Note also that surreptitious recordings of conversations or interactions with other people can also be classified as an invasion of privacy, e.g., Sanders v. American Broadcasting Co., Inc., 20 Cal.4th 907, 915, 923 (1999).

    And you know, no one writes letters any more. We forget that they can be powerful things. If you are concerned (as you should be in most situations) that the circumstances of your surreptitious recording might come back to harm you would be to document what happened in the form of written correspondence to the other party to the conversation, which you will conclude with a phrase like “Please contact me if anything written above is incorrect.” And of course you’re going to keep a copy of that correspondence in case you need it later. You go through the exercise of sending the letter to the other party so as to a) weaken a subsequent hearsay objection when you try to admit the letter in court, and b) put the other party on notice that this is your version of events and afford them a fair opportunity to get their version of events out there in return correspondence to you, and c) use their all-but-certain failure to do so as evidence that what you said in your letter was the truth. The longer you wait to create such a letter, the less evidentiary impact it will have. Now, nothing like that is going to be quite so dramatic as what you capture on a video. And maybe this sort of thing isn’t appropriate to every transaction. But it could be helpful when dealing with a contractor or some other sort of oral agreement.Report

    • Avatar Patrick Cahalan says:


      Burt, my understanding of the case law in California is that the main driver in CA is expectation of privacy.

      That is, if both parties would expect that the communication is private, you need to announce you’re recording if you are doing so. However, if the expectation is *not* that the communication is private, you’re under no obligation to inform the other party.

      Certain types of interactions are regarded as public by nature; hiring a contractor, for example, is a public transaction and thus the conversation involved cannot be regarded as reasonably expected to be private. Public officials, generally, have no expectation of privacy when they are engaged in their official capacity; therefore customs officials, cops, district attorneys, etc., can be recorded if they’re acting in their official capacity.

      More here, in regards to interactions with public officials and here with California, specifically.Report

      • Avatar trumwill mobile says:

        Which brings forth the question: in the age of Google Glasses, what privacy will we be able to expect in our interactions with others?Report

        • Avatar Patrick Cahalan says:

          I’m one of those weird ducks that thinks legislators ought to get out in front of this one instead of leaving it to the courts.Report

      • Avatar Burt Likko says:

        This is all correct. California takes a relatively liberal view of what circumstances give rise to a reasonable expectation of privacy.

        I am of the opinion (as it seems are you) that any public official, including a police officer, who is engaged in public business is acting in public, not in private, and therefore ought to have no expectation of privacy whatsoever. When you do the public’s business, the public gets to watch you do it. There are some exceptions to that rule, but not many.

        Cops in all states fear, whether rightly or wrongly, that the righteous use of force in executing their jobs will be misconstrued afterwards and thus that they must change the way they do their jobs when they are being recorded. That’s why they say video “interferes” with the discharge of their duties. What they don’t tell you and may not really understand themselves is how much juries like cops and want to give the cops the benefit of the doubt.Report

      • Avatar Will H. says:

        I saw where a county Sheriff was prosecuted in NH for wiretapping employee calls.
        It held up; which, frankly, made me a bit surprised.Report

    • Avatar Will H. says:

      Illinois has a law that makes it a felony to record someone without their consent.
      The ACLU has been fighting it for years.
      Oddly enough, it’s typically only enforced when people record the police.
      And of course, the police can record you, because this falls within their ordinary course of business.Report

  2. Avatar Mad Rocket Scientist says:

    Is there a legitimate reason behind laws that prohibit one party from recording an interaction with another party without their knowledge?

    I’m not talking stalking or paparazzi or gotcha moments, I’m specifically thinking about two people willingly having a conversation, & one makes a recording on the sly.Report

    • Avatar Patrick Cahalan says:

      If the conversation isn’t a matter of public business, both parties have a reasonable expectation of privacy.

      If I’m talking to my mother about how my brother is a bastard, I have a reasonable expectation that my brother’s political opponent isn’t recording my conversation with a directional mic and is going to put up an advertisement about how “not even his brother likes him!”Report

      • Avatar Burt Likko says:

        What did your brother ever do to you, Pat?Report

      • Avatar Mad Rocket Scientist says:

        Well, seeing as how your brother’s political opponent is not a willing party to the conversation (i.e. you are not talking to him, or aware he is listening), then he is eavesdropping/wire tapping/etc.

        I’m talking about MRS & Patrick Cahalan willingly having a conversation (I offered you a beer, you decided that I am worth talking to for a moment) and I’ve got my cell phone set to record audio, or I’m wearing a button cam.Report

        • Avatar greginak says:

          I’ve had people give me recordings of private conversations that they wish to use as evidence. Aside from the reasonable expectation of privacy i still have a big concern about using secretly recorded conversations. The side that is doing the recording may be manipulating the conversation or conflict to get incriminating material on the other side. Also i have seen people try to doctor recordings.Report

          • Avatar Patrick Cahalan says:

            Both of these.Report

          • Avatar Mad Rocket Scientist says:

            Is that worth making said recordings illegal, or merely suspect as an evidentiary matter (i.e. in a legal matter, proving the veracity of the recording is upon the person producing it).Report

            • Avatar greginak says:

              Illegal? I’m not completely sure either way. I don’t like them in general in most cases but i can also see where they are of some use. The cases where i have i’ve had people clearly trying to manipulate a conversation or encounter to get incriminating recordings of the other side have left a bad taste in my mouth.Report

  3. Avatar Damon says:

    I’m actually curious as to how this camera phone revolution will pan out. There’s lots of folks taking videos, and more comming, I think. It has opportunties to document all kinds of thugish behavior by the authorities….Report

  4. Avatar Rod Engelsman says:

    They’re starting to sell dashboard cams for big trucks now. The idea is you set it up on your dashboard and it’s constantly recording what you see through the windshield. The idea being to act as a kind of witness when some dumbass in a car cuts right in front of you, stomps on the brakes, and you can’t help* but rear-end them.

    Given privacy laws, etc. I have to wonder a) how these could/would be useful in court, and b) if a guy could possibly be in any legal peril just having the thing peacefully sitting there recording continuously.

    * Given dry pavement, good tires, and properly adjusted brakes, the normal/best stopping distance for a fully-loaded semi is about a football field in length. Hint for the wise!Report

    • Avatar Patrick Cahalan says:

      I don’t see how you can credibly claim you have a right to privacy concerning your driving technique when you’re on a public highway. Private road, maybe.Report