In a golden age of electronic surveillance where everyone always has a sophisticated recording device in their pocket, you must be careful with whom you wish to give your time and what you say to them, even in private.
In most states, it is not illegal for someone to pose as someone else and record you without informing you that they are recording you and then use that information to their advantage or your disadvantage. Take for instance the recent leaked audio recordings of Supreme Court Justice Samuel Alito and his wife, Martha Ann Alito. A journalist posing as a “Christian conservative” attended the Supreme Court Historical Society’s members-only, black-tie gala, an event not open to journalists. The journalist secretly recorded conversations with these powerful individuals which exposed Justice Alito’s impartiality which is a major embarrassment and an ethical dilemma to the Supreme Court. The journalist may have crossed a line with gala etiquette, but she was a paying SCHS member, and did not break any laws in the District of Columbia where the event took place. Even if the journalist had broken an eavesdropping law, like if the gala happened in Florida or California where state laws require that all parties to a conversation must give consent to being recorded, something you say may still be illegally recorded without your knowledge and released, and it may only affect you and not the person who violated the law. For matters of public interest, the public will be more interested in the recording’s content than how it was acquired. And sure, you could sue and win, but everyone would still know what you did or said in private, and you can never change that. Look what happened to billionaire real estate mogul Donald Sterling a decade ago.
The wild new Hulu series CLIPPED about the scandal that spun around the release of a recorded racist rant by the owner of the Los Angeles Clippers’, Donald Sterling, slam dunked on the world of basketball a decade ago. CLIPPED is a cautionary tale about private conversations being recorded without consent and the damage done regardless of the possibility of the statements being unlawfully recorded and publicly leaked. The glaring omission surrounding the story in the media coverage at the time or within the CLIPPED show is whether the audio clip at the foundation of the scandal was lawfully obtained and legally released. And that’s the point, we have limited privacy in our world and very flimsy legal protections when it comes to recording conversations. Everyone was essentially preoccupied by the shocking racist statements of an owner of an NBA team than the legal ramifications of how the audio clip was acquired. Maybe our expectations of privacy need reevaluation.
Each state in the United States has different and unique laws regarding audio or visual recording. California, where the events of CLIPPED took place in 2014, had specific laws that state that it is a crime punishable by fine and/or imprisonment to record a confidential conversation without the consent of all parties, or without a notification of the recording to the parties via an audible beep at specific intervals. The California Supreme Court has defined a confidential conversation as one in which all the parties have a reasonable expectation that no one is listening in or eavesdropping. In addition to criminal penalties, illegal recording can also give rise to civil damages.
Inevitably, audio recordings will often come up in a contested divorce, child custody dispute and a myriad of other legal matters in the business world. Concerned clients often believe that recording conversations with their spouse or child’s parent without that person’s knowledge can later be used in court against them to obtain custody or gain leverage in a divorce or lawsuit. Recording a conversation without the other individual’s knowledge or consent has become increasingly easy with everyday technology such as smartphones, computers, or home surveillance camera systems. However, everyone must understand that the court will not admit into evidence an illegally obtained recording. Depending on the state that you are in, or the state the other person is in (telephone call) the act of recording an individual without their consent may or may not be legal.
Like California, in Florida it is also illegal to record an in-person or telephone conversation without the consent of all parties. However, in Georgia the recording laws are quite different. It is legal under Georgia’s wiretapping and eavesdropping statutes to record an oral or telephone conversation if you have the consent of at least one party. That means you can record a private one-on-one conversation with another person if you are a party to that conversation and do not have the other person’s consent. If there are others involved in the conversation or other people are present, then you may require additional consent. If you are calling someone in California or Florida from Georgia and recording the conversation you are NOT committing a crime in Georgia, but you would be violating the laws of California or Florida. But what if you did not know that the person you recorded on the phone was in a state with different laws? Is it enforceable? Maybe, maybe not.
For more information on conversation recording consent laws:
https://www.rcfp.org/introduction-to-reporters-recording-guide/
https://www.mwl-law.com/wp-content/uploads/2018/02/RECORDING-CONVERSATIONS-CHART.pdf