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Monday, August 23, 2010

Speak into my lapel, Grandma

A federal appeals court in New York has struck a blow for people who surreptitiously record in-person conversations with others. This decision, from earlier this month, holds that the federal anti-wiretap law didn't apply to an iPhone taping of a kitchen conversation that was later used in a will contest. Since the person making the recording was a party to the conversation, the court said, he could tape it so long as he was not doing so for the purpose of committing a criminal or tortious act -- and that the act of surreptitious taping was not in itself a crime or tort.

The case is vaguely reminiscent of Portland-area police's attempt to bring anti-wiretapping charges against people who videotaped police officers (with audio) doing various nefarious deeds in the line of duty. As best we can tell, those charges have all been thrown out. But the statute invoked in those cases is an Oregon state law which reads quite a bit differently from the federal law involved in the new case.

Comments (4)

Thrown out? Hardly. Citizen recording of police encounters continues to be prosecuted. In fact, I am arguing a case before the Oregon Court of Appeals in another month on exactly this issue. District Attorneys around the state continue to prosecute these charges, and Attn. General Kroger is continues to defend those convictions.

That's Federal, right? AFAIK any state with two-party consent runs into trouble with state law.


"In at least three states, it is now illegal to record any on-duty police officer [...] Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal."

I was pulled over by a trooper on the Oregon Coast and i am 75% certain he told me beforehand that he was recording the conversation with a lapel recorder. I wonder if I said I didn't consent that that would then be illegal? Oh, well Oregon is a one-party consent state, so I guess not.

I'm pretty sure that Oregon is one person consent on the phone, but both parties consent in person.

This won't last. Almost everybody in the nation has a recording device at the end of their arm. The tipping point has already happened.

The point of the novel 1984 was that big brother was watching you. Seemed like a believable premise. But the game-changer is that big brother is the one being watched. And by 330 million people. That bodes well for our democracy. The courts will have to get to the right side of this argument eventually. I hope they hurry.

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