Before You Record an Interview, is it Legal?

05 Apr 2019

BEFORE YOU RECORD AN INTERVIEW, IS IT LEGAL?

In the era of smartphones where an audio recorder is often a standard device function, recording a conversation, an interview, or a business meeting has never been easier.

A quick thumb swipe over that red record button gives us a resource to fact-check what we just heard. It can help us engage with the people who are speaking to us rather than furiously taking notes with our head down. In some cases, an audio recording can protect us from legal challenges and professional embarrassment.

But a simple audio recording, as well as video recordings, come with legal and ethical baggage. Depending on what state you or your subject is in, recording someone speaking without their consent can be illegal as well as unprofessional. Here’s why and how to avoid the pitfalls surrounding the simple action of hitting record:

What does the law say?

A better question is what do the laws, as in plural, say about this? That’s because different states have different laws, which can also differ from the federal law.

The federal law 18 U.S. Code § 2511, which primarily revolves around wiretapping, requires the consent of only one person in the conversation for a recording to be legal. This is known as one-party consent. If you are conducting an interview, because you are involved in the conversation, your consent is enough to make an audio recording legal. There are 38 states and the District of Columbia that mirror this federal law.

California, Florida, and eight other states have much tighter laws. These states require what is called two-party consent. However, these laws technically require all people in the conversation to consent to a recording, according to Matthiesen, Wickert & Lehrer, a law firm with offices in Wisconsin, Louisiana and California.

“It’s helpful to think of a conversation as being presumptively private,” said Felix Wu, a law professor at the Benjamin N. Cardozo School of Law. “They should not be able to spread it to whoever they want.”

Nevada has a unique situation. By law, it is a one-party consent state, but how the courts interpreted that law in the case Lane vs. Allstate Insurance Co, makes it operate like an all-party consent state.

Law enforcement can bypass any federal or state restrictions with court approval, which can allow them to, say secretly record a phone call between mafia bosses.

Check out these detailed guides here and here to see the law in your state.

What law should I stick to?

Unless you have a powerhouse legal team you can easily consult, it is better to be safe than sorry. “Typically, whatever state you are in, if that state’s law is more stringent than the federal law, usually the state law would govern,” said Deborah England, a California-based litigator who specializes in employment law and civil rights.

If I am located in New York, a one-party consent state, and I am recording someone who is in California, a two-party consent state, what law do I follow?

There is no concrete answer to this question so before figuring this out, ask yourself why you are reluctant to request the consent of all parties in the conversation. If there is no reason not to, why not get the consent of all parties? The reason for this is as much ethical as it is legal, which we get into further down.

But back to the original question. “A good rule of thumb,” according to the guide from law firm Matthiesen, Wickert & Lehrer, is to follow the state law where the recording device is located. So because the recorder would be located in New York, you only need the consent of one party. However, some jurisdictions might take the rule of the more stringent law so California’s two-party consent would be the one to follow.

You also need to consider where the recording will be used. If its use is restricted to New York and not California, one-party consent could apply, according to England. “Then the question would be, well what does it mean to be used in California?” she said. “If you’re writing for a publication or you are releasing the recording in such a way that it would be distributed in some way in California, then you could have a problem.”

Why do these laws exist? What are they protecting?

In early American law, “eavesdroppers, or such as listen under walls or windows, or the eaves of a house” were addressed to protect against “slanderous and mischievous tales,” according to a report from the Congressional Research Service. However, the first version of a wiretap law aimed to bolster national security and prevent the disclosure of secrets during World War I.

Over the years, the law shifted back to protecting the privacy of citizens against the overreach of government, business, and individuals. Technology also had an impact. The Electronic Communications Privacy Act of 1986  updated the Federal Wiretap Act of 1968 with provisions to not just protect against recorded phone calls over traditional telephone lines, but also digital and electronic communications. The law continues to evolve with technology.

These laws don’t just protect confidential information or personal statements that are supposedly made in private settings. “In California, it covers such things as my professional image, my brand, and reputation,” England said. “It covers how I am presented publicly.” For example, the contents of a leaked conversation that was never intended for public consumption could come without context, perhaps making the speaker appear foolish or ignorant. 

Recording a conversation without consent might be legal in some states, but is it ethical?

Within journalism, ethics puts the bar higher than the law of most states when it comes to recording conversations. The New York Times requires its reporters to notifying all parties regardless of legality.

There are many benefits to this other than avoiding legal troubles. “It helps build trust” if a journalist is transparent about how they are gathering information, said Wendy Wyatt, a communication and journalism professor at the University of St. Thomas. The same can be said for building trust between business associates or with a client whose biography you are writing.

How does NBC or CNN get away with secretly recording someone for a news story?

A recording might be intentionally done in a one-party consent state where the consent of the undercover reporter in the conversation is enough to make it legal.

An expectation of privacy also comes into play. If a secret recording is conducted in a public setting like a car park or a restaurant, then there is no expectation of privacy and the contents of that conversation could possibly be legally recorded.

Another avenue is getting permission from the subjects after the fact. But why would someone consent to a recording that puts them in a negative light? “It happens more than you think,” said England.

How can I prove consent was given?

This can change from state to state. In some jurisdictions, consent can be implied by someone’s continued participation in a conversation after they are notified they are being recorded, according to Matthiesen, Wickert & Lehrer. In Connecticut, consent must be either verbal and recorded or given in writing, according to Poynter.

But if a dispute arises, it’s much easier to have a record of consent. England recommends that consent is verbalized by all parties at the onset of a conversation and that this consent is recorded.

You could also request consent in an email ahead of time, “as long as you got an affirmation because you don’t want them saying later ‘I didn’t get the email’ or ‘I didn’t read it,’” said England.

What if I forgot to notify all parties that I am recording the conversation?

First, this is only an issue if you or someone else in the conversation is located in one of the 11 states that have two-party consent.

Second, it is rare that a court case or lawsuit is driven solely by an illegal recording. “In my experience, seditious recordings come up collaterally as a result of a dispute about something else,” said England.

For example, an employee might record a conversation with a colleague to prove sexual harassment. If that colleague did not give permission, the audio of that conversation would be inadmissible as evidence during a trial in California, according to England.

If you are a journalist or a biographer and you have identified yourself as that ahead of an interview, you could argue recording might be assumed, said Wu. “In a lot of cases, there’s the practical part of do they actually care? Would they actually object to the fact or go after you for it?” he said. 

It’s worth noting there are reports in California of efforts to “extract class-action settlements” from out-of-state companies. In these cases, the companies were unaware of California’s two-party consent laws and recorded business or customer service calls without notifying all participants.

Can a source retract their consent to a recording after it has been made?

Again, there are both legal and ethical considerations.

Unless you agreed to allow the source to review and approve of the recording, transcript or article that resulted from the recording, “it is pretty hard for a source to retract permission,” England said, of the legal perspective.

Ethically, a request to retract information deserves consideration, according to Wyatt. Did the subject say something factually inaccurate, which could lead to inaccuracies in a published article? Could that information lead to personal harm for the subject or someone else? “It is important for journalists to help people understand what it means to be interviewed for a news story and what the rules of engagement are,” said Wyatt.

If an audio recording can be illegal, how about the transcript of that recording?

This is a gray area. On one hand, the Reporters Committee for Freedom of the Press warns that federal and some state laws make it illegal to possess as well as publish the contents of an illegal wiretap or recording. That is even the case if the recording was made by someone else.

However, the Supreme Court has ruled favorably towards the media in cases where illegal recordings were published, but their “implications for news gatherers are still not entirely clear,” the committee wrote in its Reporter’s Recording Guide.

Gaining consent for how a recording or its contents might be used can avoid issues later on. For example, if you record a business meeting for internal purposes and that recording is publicly released, that goes far beyond the boundaries of what was originally agreed to by those in the meeting, England said.

Are you allowed to “tweak” quotes if you keep the same meaning?

Recording a conversation creates an exact history of what was said. Altering verbatim quotes from that conversation will put you back on shaky ground both ethically and legally, even if you did get the consent of everyone involved.

In the legal sense, you had better be certain you are not changing the meaning of the quote you are tweaking. If the alteration “places the source in a bad light, it could lead to a defamation claim,” said England. Other problems can also pop up. Does the alteration put the source in legal jeopardy, or lead to a loss of money or employment? If yes, then it could open the door to a lawsuit. Did the journalist or person responsible for the misquote profit from it? That could lead to a possible fraud charge, according to England.

The practice of “cleaning up” quotes, which includes correcting grammar or awkward phrasing, is frowned upon in the journalism industry. For example, the New York Times prohibits its writers from doing this other than removing “extraneous syllables like ‘um’ and may judiciously delete false starts,” according to the paper’s ethical standards.

The laws surrounding a recorded conversation are not simple. What is simple is requesting the consent of all parties involved to ensure a recording is legal no matter what state you or the subjects are in. It will build trust between those involved, give the conversation or meeting an aura of professionalism, and keep you on the right side of the law.

*Feature photo by Gavin Whitner*

Author
Serena Solomon 

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