Lawyers, whadya mean, 'audio recordings are not admissible in any court of law?'

[dropzone]

Situation:

We want to set up a home surveillance system to record both audio and video. We have the technology. We have the drive space. We have a project manager who is an idiot who cannot figure out the legal difference between that and bugging a phone and should not be allowed near the internet until he learns how to use it for good, not stupidity.

Email from cow-orker:

Attached is one statute of several regarding the electronic recording of audio content. Every law and statute that I have looked at basically stated that audio recordings are not admissible in any court of law. Also, recording of any audio content can open another door that the recordee can turn around and sue the recorder for violation of his/her privacy. This can lead to fines and/or imprisonment.

If you would like to read more info about these laws and statutes, look up “Electronic Communications Privacy Act”.

Before offering the ability to record audio in a client’s home, they must be made aware that they could spend time in jail if they try to use the recording in a court of law.

Text he was referring to:

TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 119 - WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
§ 2515. Prohibition of use as evidence of intercepted wire or oral communications
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

Lawyers, is there any law against recording the audio as well as the video? Any suggestions how I can slap down this moron without using words like “moron” or “idiot?”

[drachillix]

IANAL and states vary but expectations of privacy at work especially while using work phone and internet services is damn near non existant.

In addition, the things a private citizen or employer can do legally compared to law enforcement make law enforcement look positively hobbled.
Many of these laws are intended as restrictions on collection of criminal evidence and would be perfectly acceptable in a civil matter involving employees/employer/other civil disputes.

[drachillix]

I would also be willing to bet there is later text below his cite giving examples where the above would not apply (court issued warrants, private resident recording his own home, employers in their place of business, yadda, yadda)

[garygnu]

Note the use of the word “intercepted” in that statute.

[mazinger_z]

While IAAL, this is not legal advice, standard disclaimers apply…

What are you trying to do? Are you a government agency of some type? Are you an ISP (or have ISP capabilities)? Are you or the recorder a party to the conversation? Is the other part of the conversation a union? Is the conversation taking place between state lines? In a private or public place in the workplace?

The ECPA sets stringent provisions and procedures for the government to use of wiretaps and other recordings, including electronic or wire transmissions. The concern is privacy. Until I know what you want to do, I won’t comment any further.

Oh, and there also a host of state laws that you might have to deal with regarding the possession of wiretapping devices. And, lastly, there is a reasonableness standard usually associated with the way recording is conducted and where it takes place (again, varies state to state, unless across state lines).

[toadspittle]

IANAL. I don’t think the issue is trying to use them in a court of law; it’s taping the audio, period. But the laws vary state by state.

[Chimera]

Every law and statute that I have looked at basically stated that audio recordings are not admissible in any court of law

Not true in most states, definitely not true here. I did the research about 8 months ago because I needed to know whether or not I could record my supervisor making statements contrary to my employer’s policies.

In my state (Minnesota), you can record any conversation as long as at least one person (usually you) is aware that you are being recorded. Then you have to prove that you are competent in operating the machinery, which basically amounts to “can you hear and understand the recording?”.

From a brief google search;

“Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Be aware that you will sometimes hear these referred to inaccurately as “two-party consent” laws. If there are more than two people involved in the conversation, all must consent to the taping. The more accurate term is “all-party consent.””

(Of course, my supervisor was from New Hampshire and howled about how I broke the law and he could sue me. But while that may have been true in his home state, it is definitely NOT true here!)

BUT, the issue of Home Security is something else altogether, and you would definitely need to consult a lawyer in order to get the straight scoop on admissibility. Business audio and video surveillance is definitely legal, and notification of such is usually sufficient to claim “implied consent”. In which case, you may well be golden if you post a sign or two in surveilled areas warning that the place is under audio and video recording.

[Gfactor]

@garygnu

Note the use of the word “intercepted” in that statute.

Ok.

(4) “intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.[1]

18 U.S. Code § 2510 - Definitions | U.S. Code | US Law | LII / Legal Information Institute

[TJVM]

Even if you’re not intercepting wire communications, there may still be laws, particularly state laws, that limit your right to surreptitiously record conversations, even in your home. I’ve found this site to be a good general introduction to the issue.

You have your location listed as “Home of the Unabomer.” If that means Montana, you might note that, according to that site’s state-by-state guide:

Mont. Code Ann. § 45-8-213: It is a violation of privacy in communications under state law to record a conversation with a hidden electronic or mechanical device without the knowledge of all parties to the conversation, but the law does not apply to public officials or employees speaking in the course of their duties, to anyone speaking at a public meeting, or to anyone who has been warned of the recording.

Disclosure of the contents of an illegally recorded conversation also is a violation of the law. A first offense carries a penalty of no more than $500 in fines and no more than six months in prison. A second offense carries a penalty of no more than $1,000 and no more than one year in prison, while a third offense can be punished by no more than $10,000 in fines and no more than five years in prison.

[vetbridge]

IANAL, but in Pennsylvania a guy got into trouble for tape recording the state cop who had pulled him over.
Here are some cites:
Cite 1

* Brian Kelly of Pennsylvania was arrested in May on felony charges of illegal wiretapping after filming an officer during a traffic stop from the passenger’s seat. The irony is that a camera in the officer’s vehicle was recording the traffic stop as Kelly was recording the officer. Kelly, who was 18 at the time, spent 26 hours in jail and was threatened with ten years imprisonment.

2

3

Maybe talking with an attorney would be a good idea?

[Gfactor]

This is a complicated issue. Courts have held that silent video surveillance evidence is admissible, but excluded audio portions. OTOH, you’ve got to look at the exceptions to the applicable state and federal laws.

You’d need to review the definitions section of this statute: 18 U.S. Code § 2510 - Definitions | U.S. Code | US Law | LII / Legal Information Institute

and the part that describes the offense and the exceptions: 18 U.S. Code § 2511 - Interception and disclosure of wire, oral, or electronic communications prohibited | U.S. Code | US Law | LII / Legal Information Institute

You’d also need to review the relevant state law provisions: Taping constitutes 'interception' of call, court finds - The Reporters Committee for Freedom of the Press

[Santo_Rugger]

@vetbridge

IANAL, but in Pennsylvania a guy got into trouble for tape recording the state cop who had pulled him over.<snip>

@Chimera

<snip>
“Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington…”

Bet he would have gotten in trouble in Maryland or Massachusetts, too. :smack:

[dropzone]

@TJVM

I’ve found this site to be a good general introduction to the issue.

Yeah, I found that site after I posted my question. It looks like we’d be covered with an exposed camera and one of Chimera’s signs, but what we really need to do is (all together now) consult with our lawyers. Our security guy can also bounce off them his idea for lethal counter-measures. Silly idea, actually, when you can get much the same result with an announcement that you are releasing cyanide gas and instead release a harmless gas containing a bit of cherry extract. The first leaves you with a body and A/V evidence that need to be disposed of. The second could win you $10,000 on America’s Funniest Videos.

You have your location listed as “Home of the Unabomer.” If that means Montana…

Ted got his start in a shed behind his mom’s house a few blocks from my home in Chicago’s scenic western suburbs. Not that it matters that I’m in Illinois because none of our jobs are. Most are in Florida, where “consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.” While an intruder might hope for privacy, it would not be reasonable for him to expect it.

[Elendil_s_Heir]

Audio recordings are indeed admissible in most states’ courts, depending upon the circumstances. In Ohio courts, what I’ve heard most often are answering-machine messages (watch out, Alec Baldwin!), calls to 911, and “private” phone conversations which one participant taped. Happens all the time.

I once presided over a TPO (temporary protection order) hearing in which the defendant’s long, profanity-laced answering-machine message was key to the prosecution’s case. It just went on and on and on. Finally I asked a bailiff to turn off the tape and said, “That can’t have been what Alexander Graham Bell had in mind.” =Rimshot=

[Otto]

@Gfactor

(4) “intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.[1]

So if I am reading this and the OP correctly, the audio and video that he is recording from his home system would not qualify as “intercepted.” The OP is not using his system to capture the contents of any other communication. He’s using his system to record brand-new signal.

[Projammer]

@Chimera

Not true in most states, definitely not true here. I did the research about 8 months ago because I needed to know whether or not I could record my supervisor making statements contrary to my employer’s policies.

(Of course, my supervisor was from New Hampshire and howled about how I broke the law and he could sue me. But while that may have been true in his home state, it is definitely NOT true here!)

Sounds like an interesting story. Care to share it? Or a link if you already have and I just missed it.

[Gfactor]

@Otto

So if I am reading this and the OP correctly, the audio and video that he is recording from his home system would not qualify as “intercepted.” The OP is not using his system to capture the contents of any other communication. He’s using his system to record brand-new signal.

You appear to be imagining requirements that do not appear in the statute. It doesn’t say the communication must previously exist–only that the contents of an oral communication must be acquired. There are plenty of cases involving tape recordings or audio portions of video recordings that were “brand-new,” yet courts excluded them. OTOH, there is an argument that non-communicative vocalizations (burglar talks to himself, or shouts expletives when he injures himself) aren’t “communications.” It’d depend on the circumstances.

[Chimera]

@Projammer

Sounds like an interesting story. Care to share it? Or a link if you already have and I just missed it.

Um, I’m sure I’ve posted it before, probably in rant form somewhere.

Basically, I got a new supervisor in November 2007. Retired New Hampshire state cop, former Marine. His first week, he decided that he didn’t need to participate in his training any further. We had a brief confrontation when I called him aside and spoke to him in private about it. He spent the next month whining to anyone who would listen about how insubordinate I was and that if it was the military, I’d be up on charges (My military friends, including the XO of a MN NG unit, say that I’d have been dressed down pretty good, but he definitely wouldn’t be a sergeant anymore and might not even be in the military after what he did.)

Then he starts telling me to do things in ways contrary to our established procedures, and things different from University Policy. Tells the same to my co-workers, but lies to other management about it. Accuses me of insubordination when I point out correct policy and procedure. I’d be a damned fool to do what he was telling me to do at that point.

I went to HR. He calls this insubordination and says that we are not permitted to speak to HR until we’ve followed the “chain of command” all the way up to the VP of Facilities, who is at the same level on the Org Chart as HR. I call Bullshit. Knowing we’re going to have a big disciplinary meeting over this, I do the research on the laws, then go out and buy a digital audio recorder.

Sixty nine minute meeting. Over and over, telling me the same things. Now I’m 45 years old and have nearly 30 years of work history, I know this is bullshit. But he insists that’s the way it works everywhere. Sure, sure, we’ll see about that. I say I’m taking it to HR. He orders me not to. I say I’m doing it anyway, he says that’s insubordination. I say “If HR says it is, then you can write me up for it”.

I go to HR the next day. While I’m talking to the HR Director about it and she’s flipping her gourd about it, Dimblefuck’s promotion to Assistant Director is released, with her name on it, our Director and the VP of Facilities. Great timing. Supervisor is forced to recant everything, words it as if I am lying. The next day I am suspended for insubordination and lying. Two weeks later I’m fired.

Sure, I could have taken the evidence up the chain, but unless they were going to fire everyone involved, I had no future in that organization. Best to just move on, knowing that I was right and all those retired cops in that organization were a pack of corrupt assholes with no personal integrity.

[Harriet_the_Spry]

There was a recent (this month) 9th circuit decision *expanding * employee expectations of privacy with electronic communications. It doesn’t directly address the OP’s question, but it does represent a sea change from most US law on this topic, so is worth taking a look at.

New Ninth Circuit Case Protects Text Message Privacy From Police and Employers

[mks57]

There was an infamous case recently of a man in Nashua, New Hampshire being arrested for videotaping the police with his home security system.

Man charged after videotaping police