IP: Speak or Dare? -- Private Lives and Hidden Mikes (from Privacy

[Dave Farber <farber () cis upenn edu>]

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