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IP: Speak or Dare? -- Private Lives and Hidden Mikes (from Privacy
From: Dave Farber <farber () cis upenn edu>
Date: Sun, 25 Jan 1998 17:32:59 -0500
Date: Sun, 25 Jan 98 10:59 PST From: lauren () vortex com (Lauren Weinstein; PRIVACY Forum Moderator) Subject: Speak or Dare? -- Private Lives and Hidden Mikes Greetings. "The walls have ears." We've all heard the phrase, and it's become a cliche from old spy movies and mysteries of yesteryear. Most persons in the U.S. believe that they're legally protected from arbitrary monitoring and recording. We all know that law enforcement can perform legal wiretaps and other legal forms of surveillance under appropriate court order, and most people implicitly assume (or at least hope) that such use is only authorized when absolutely necessary, and that unauthorized surveillance by such parties is an unusual and rare occurrence. But let's leave direct law enforcement surveillance aside for right now. Let's think instead about your boss, your co-worker, your ex-spouse, your longtime friend, or the stranger who approaches you on the street. They can't go around taping the conversations you have with them without your permission, or at least notification, can they? After all, they're not law enforcement with a court order. Recent events in Washington demonstrate all too clearly the fallacy of assuming that individuals are safe from unannounced, covert recordings made by persons with no direct connection to law enforcement. In the current case so dominating the collective consciousness, one person secretly taped conversations she had with her "friend," over a significant period of time. This taping was apparently not instigated by a judge, magistrate, or other official. Rather, it reportedly was the idea of a publishing agent with an openly self-professed agenda, who already is predicting a multitude of books relating to the recordings on those tapes. Whether the statements on the tapes are true or false is irrelevant to the discussion here. What's crucial to privacy issues is the very fact of the tapes' existence. Wait a minute. How does a publishing agent trigger a surveillance operation? Easy. In many parts of the country, it's completely legal. You just head down to the local "spy-shop" (or Radio Shack), spend a few bucks, and you're set to try get the dirt on whomever you might care to target. No notifications, no oversight, no guidelines necessary. The ability to pull this off legally revolves around so-called "one-party" monitoring laws. Some states do require that all parties to a conversation be aware of, and/or agree to, the taping of their conversations in most situations. But federal law is far more lax, in a manner that is qualitatively different. Under federal law, it is usually permitted to record a conversation so long as only ONE party to the conversation agrees--no requirement exists that the other party or parties even be notified. In states which have not established their own more restrictive laws, this much less restrictive situation usually prevails. Even in states which theoretically require all-party agreement and/or notification, it is often unclear if federal or state law will apply in any given situation. Questions of where people are, where they're calling to or from, who is doing the recording, and why the recording is being made, are all factors which may have an influence on the possible ability to legally perform one-party taping even in all-party states, and on how those tapes might be used. All of this comes as something of a shock to most people. They're used to hearing the little phone announcements warning that their call may be recorded "to ensure quality service." This reinforces the impression that recordings cannot be made without such notification. But in many cases, those announcements are just "playing it safe"--depending on the circumstances, they might not legally be required in many jurisdictions with most callers. It can be argued that secret private-party taping has sometimes yielded results of significant positive benefit to society (for example, investigative reports of unsafe industrial practices and the like). But all too often, hidden taping is used in the furtherance of salacious or other agendas which most persons would probably agree are violations of "personal privacy" of a sort that they assumed were already illegal! The complex nature of the conflicting state and federal laws regarding one-party taping creates an aura of confusion that appears to be encouraging abuse by the unscrupulous. It may well be time to look seriously at a federal ban on most secret one-party taping outside of law enforcement contexts, like that already present in various states. It won't be a win-win situation for everybody or for all situations. Privacy is always a balancing act and almost never an absolute. But it appears that the sort of society in which most of us prefer to live might best be served if privately operated hidden mikes and secret tapes were not broadly sanctioned by law. --Lauren-- Lauren Weinstein Moderator, PRIVACY Forum <http://www.vortex.com/>http://www.vortex.com
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- IP: Speak or Dare? -- Private Lives and Hidden Mikes (from Privacy Dave Farber (Jan 25)