Key point. The secret recording of oral or electronic conversations may violate state or federal wiretapping laws.
* A Michigan court ruled that a husband who secretly recorded conversations his wife was having on a cordless telephone had violated a state eavesdropping statute. A married couple was in the process of obtaining a divorce, and the husband moved out of their home. A neighbor who lived next door to the wife told the husband that he owned a police scanner and that he could listen to, and had been recording, calls the wife had been making on her cordless telephone. The husband asked for the tapes, and told the neighbor to "keep on top of things, tape and find out what was going on." The wife suspected that her calls were being monitored because certain people had information about her that they should not have had. Because of her suspicions, the wife contacted the state police. After interviewing several people, the police obtained search warrants and found fifteen tapes containing recordings of the wife’s telephone conversations with her family, her friends, and her attorney. The husband was charged under the eavesdropping statutes and was bound over for trial. A trial court dismissed the case because it believed that a person conversing on a cordless telephone could not reasonably expect her conversation to be a "private conversation." The case was appealed, and the state supreme court ruled that the wife’s conversations on her cordless telephone were "secret" and therefore the husband and next-door-neighbor could be guilty of violating the eavesdropping statute.
The state eavesdropping statute specifies that "any person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs, or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both." The statutes define "eavesdrop" as "to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse."
The state supreme court concluded that conversations over a cordless telephone are "private." It rejected the husband’s claim that such conversations cannot be private because it is common knowledge that a cordless telephone works by sending a radio-like signal from the telephone’s handset to its base, and that these signals can be intercepted by devices including other cordless telephones and police scanners. The court concluded, "Although a person who talks on a cordless telephone may know that technology makes it possible for others to overhear the conversation, that person also can presume that others will obey the criminal law. Thus, although the victim may have known that her cordless telephone conversations could be willfully intercepted with a device, she also could presume that others would not eavesdrop on her cordless telephone conversations using any device because doing so is a felony under the eavesdropping statutes, and is additionally prohibited by federal law. As a matter of law, it was not unreasonable for her to expect that her cordless telephone conversations were private …. Therefore, a person is not unreasonable to expect privacy in a conversation although he knows that technology makes it possible for others to eavesdrop on such conversations."
Application. This case addresses the important legal issue of the secret recording of oral or electronic communications. There are several points for church leaders to consider:
1. The secret recording of oral or electronic communications (including telephone conversations) may violate state and federal wiretapping laws. In some cases, a violation may result in a felony conviction.
2. There ordinarily is no violation of state or federal wiretapping laws if the person who makes a recording informs the other party (in advance) that their conversation is going to be recorded, or has the recording device in plain view.
3. The federal wiretapping law prohibits the secret recording of "oral communications" which are defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation ….” In other words, the person whose communications are being recorded must have an expectation that his or her comments will remain confidential.
4. Every state, with the exception of Vermont, has some type of eavesdropping or wiretapping statute. Most of them contain language that, to some degree, prohibits the secret recording of another’s words when spoken with a reasonable expectation of privacy.
5. The Federal Communications Commission (FCC) protects the privacy of telephone conversations by requiring notification before a recording device is used to record interstate or foreign telephone conversations. These types of conversations may not be recorded unless the use of a recording device is: (1) preceded by verbal or written consent of all parties to the telephone conversation; or (2) preceded by verbal notification which is recorded at the beginning, and as part of the call, by the recording party; or (3) accompanied by an automatic tone warning device, sometimes called a beep tone, which automatically produces a distinct signal that is repeated at regular intervals during the course of the telephone conversation when the recording device is in use. Also, no recording device may be used unless it can be physically connected to and disconnected from the telephone line or switched on and off. The FCC’s role in assisting consumers who believe their telephone conversations were unlawfully recorded is generally limited to ensuring that telephone companies enforce their tariff provisions regarding recording of telephone conversations.
6. Some states have enacted wiretapping laws that permit the secret recording of conversations so long as one party (the one making the recording) consents. But this is not true in all states. Further, telephone company regulations may impose additional restrictions on the recording of telephone conversations.
7. Ministers and lay church employees should recognize that the secret recording of oral or electronic communications may violate state or federal law, and telephone company regulations. Such violations may result in a felony conviction. Because of the potentially serious legal consequences of secretly recording conversations, ministers and lay church employees should not secretly record any oral or electronic communications without first obtaining an opinion from a local attorney as to the legality of such a practice under state and federal law. And, they should not discipline or dismiss employees when presented with such evidence that was obtained by a third party. People v. Stone, 621 N.E.2d 702 (Mich. 2001).
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