There are many words to describe conservative prankster James O'Keefe's plan to secretly record NPR fundraiser Ron Schiller over lunch and release the (heavily edited and pretty embarrassing) tape on the Web, costing Schiller his job: wrong, deceitful, cruel, unfair, juvenile, and just plain rude. But it's not illegal.
Most states, as well as the District of Columbia, allow surreptitious recording of conversations—on the phone or in person—as long as one person involved gives permission, even if that person is you. Because the two men conducting the NPR sting were aware of their own recording, which took place in Washington, D.C., it was legal. (If no parties know about it, that's wiretapping, which requires a warrant.) What's surprising is how many states, in this age of Flip cams and camera phones and surveillance cameras and helmet cams,have "two-party consent" laws. In 12 states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington—all parties involved need to consent before one of them can record the conversation.
There are some exceptions to the two-party consent rules. In California, for example, you can record a conversation without the other person knowing if you believe it will collect evidence of a serious crime. During the trial of Scott Peterson, the court admitted a phone recording made by his mistress Amber Frey at the behest of police when she believed Peterson might have killed his wife. There are also exceptions to two-person consent when there's no "reasonable expectation of privacy." For example, a conversation at a legislative hearing could be recorded without informing all parties, since recording things is what people do in legislative hearings. Same with public speeches, shouting matches on the street, or any other scenario where you simply can't expect privacy.
That still leaves some gray area. In your house, you can reasonably expect privacy. But what about conducting a loud conversation on your porch? If you don't want to be recorded, a judge might say, go inside. Or say two people are chatting in low voices on a bench in a public park, with no one else around. On the one hand, they're in a public park. On the other, if one interlocutor reasonably expects privacy since no one else is within earshot, the recording could be illegal. A restaurant conversation like the one in which Schiller was recorded might fall into the same gray zone—if he was in a state that required two-party consent. But since D.C. requires the consent of only one party, the stingers are in the clear.
As skeezy as secretly recording a conversation may seem, it gets less so every day. We broadcast everything, from our meals to our whereabouts to our deepest (and not especially deep) thoughts. Sure, those broadcasts are voluntary. But inevitably, we get involuntarily entangled in everyone else's voluntary broadcasts. There is still a "reasonable expectation of privacy." It's just that the expectation isn't as broad as it used to be.
You'd think the iPhone panopticon would make two-party consent laws look antiquated. Yet some states are enforcing them more vigorously than ever. In Illinois, for example, civil-liberties advocates are challenging a law that says you can be thrown in jail for 15 years for recording a conversation with a police officer. The penalty for recording a private citizen is up to three years in prison for a first-time offense, and up to five years for a second offense. Boston police, too, have arrested people for videotaping them in public areas.
Setting aside the hypocrisy of police routinely recording traffic stops yet refusing to be recorded, it's no longer reasonable to throw people in jail for what these days amounts to turning on your phone. There's also bound to be confusion about which technologies count as "recording." So you can't videotape your arrest. Can you tweet it? Tumblr it? Take a Twitpic of your handcuffs and send it to all your friends?
What's to stop everyone from taping all their private conversations? Are we all suddenly on the record? Not necessarily. Even in those jurisdictions where it's legal to tape your every interaction with another human being, it's not exactly acceptable. Despite the ubiquity of Flip cams, recording private conversations is still really creepy. And that creepiness deters most people. James O'Keefe and his friends won't go to jail for their NPR stunt. But they will pay a price: Most reasonable people will conclude that, the merits of their project aside, they're total skeezeballs.
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