Court OKs Covert iPhone Audio Recording

Tootech writes "Using an iPhone to secretly record a conversation is not a violation of the Wiretap Act if done for legitimate purposes, a federal appeals court has ruled. 'The defendant must have the intent to use the illicit recording to commit a tort of crime beyond the act of recording itself,' the 2nd US Circuit Court of Appeals ruled. Friday's decision, which involves a civil lawsuit over a secret audio recording produced from the 99-cent Recorder app, mirrors decisions in at least three other federal appeals courts."

Comments

It's still illegal in Illinois

[mcgrew]

It doesn't break Federal law, but it may be against state law. Recording someone without their consent is a felony in Illinois, and probably other states as well.

Re:It's still illegal in Illinois

[DarkKnightRadick]

Not in TN (and it shouldn't be, IMO).

Re:It's still illegal in Illinois

[DarkKnightRadick]

also, I imagine this ruling could be used in arguments to strike down that law via the court system.

Re:It's still illegal in Illinois

[Anonymous Coward]

We can only hope that the Federal courts can overrule this, at least on the fact of intended use.

Trying to use it to blackmail, yeah, bad. You're trying to use it in commission of a crime. PMITA prison.

Trying to use it to CYA, especially in a "He Said, She Said situation", can be the only way to protect yourself. Moreso if the other party is the police, who are given a higher degree of trust on account of their position. Ironically, seems like protecting yourself can get you more prison time than a false charge.

Just like with any other rights, there of course have to be responsibilities, and a good line to define proper recording and usage, especially considering private conversations. But when most wiretapping and recording laws seem to be geared towards saving corrupt politician bacon rather than the rights of their constituents, I have little love for them.

Re:It's still illegal in Illinois

[EvanED]

Not at all. The court did not rule that the wiretapping law prohibited the recording but that prohibition was unconstitutional, or that Congress couldn't prohibit it; what they ruled was that the law just didn't prohibit it in the first place. (At least based on TFA and a search in the opinion for "Constitution", which doesn't appear.)

Re:It's still illegal in Illinois

[mcgrew]

it shouldn't be, IMO

I agree. I call it the "liar's law". Of course, with the dirty politics we have in Illinois, it's no wonder legislators don't want their words held against them.

Re:It's still illegal in Illinois

[gzearfoss]

What's notable about this case is that Connecticut (where the incident took place) is a 'two-party consent' state, at least for recording phone calls. This incident took place face-to-face, which prevented the state laws from coming in to play.

A question for those with more knowledge of the legal system: Can this be used as precedent against two-party consent laws for call recording?

Re:It's still illegal in Illinois

[corbettw]

That's OK, it's perfectly legal in Wisconsin, just an hour north of Chicago. Drive across state lines, make your recording, then broadcast for the world to hear.

Re:It's still illegal in Illinois

[morgan_greywolf]

Illinois doesn't have a monopoly on dirty politics. They're just much worse there at hiding it.

Re:It's still illegal in Illinois

[jte]

Nor NY - and glad of it.

Re:It's still illegal in Illinois

[RyuuzakiTetsuya]

Blago's getting only 5 years for what he did.

No, Illinois, you've guys have turned dirty pool into stagecraft.

Re:It's still illegal in Illinois

[poetmatt]

yes, illinois is a 2 party state. however, can someone please put this wording into accurate sense?

Are they saying that it's not illegal if you're recording someone committing a tort? The way the news article was worded seems confusing to me. Can someone translate for me?

" 'The defendant must have the intent to use the illicit recording to commit a tort of crime beyond the act of recording itself," Isn't committing a tort a wrong?

Re:It's still illegal in Illinois

[Anonymous Coward]

It isn't the legislators, it's the police... the most scared I've ever heard a police officer was when he was threatening to press wiretap charges (Class 4 Felony) if someone was recording the conversation.

Re:It's still illegal in Illinois

[DurendalMac]

It depends on the nature of the conversation. Usually there's a clause where the other party must have a reasonable expectation of privacy. So while recording a phone conversation will get you busted, recording a conversation out in the middle of the street will not. Some states say that only one party needs to consent (the recorder, generally), some say that both parties must consent.

Re:It's still illegal in Illinois

[Unequivocal]

Blago's max sentence is 5 years for his first (and hopefully not last) conviction. In reality he'll probably be sentenced to a year and do less. At least that's what I've been reading in the papers..

Re:It's still illegal in Illinois

[Entropius]

The decision says that simply making the recording is not a tort or crime per se, but if you intend to use the recording to commit a tort or crime, then making the recording is itself prohibited.

i.e. I can record you admitting that you're having an affair and send the recording to your spouse, but if I intend to use the recording to blackmail you, then the recording is itself a crime.

Re:It's still illegal in Illinois

[commodore64_love]

Don't blame the whole state for what is really just the fault of Chicago and its exurbs.

The people living in the rest of Illinois try to clean-up the corruption, but their voices are suppressed by tyranny of the majority (i.e. they are outvoted).

Re:It's still illegal in Illinois

[Anonymous Coward]

Nope, recording a person is not illegal in Illinois or any state "if done for legitimate purposes" (RTFA) such as a hearing against you. Telling them is not required as they might not state their side of the issue aloud if they know their being recorded.

Re:It's still illegal in Illinois

[commodore64_love]

My main concern is the ability to record cops while I'm being questioned. I need that protection.

COP: "Sir turn off that recorder."
ME: "Why? So you can beat me up, like the other cops I've seen on youtube beating innocent citizens?"

Re:It's still illegal in Illinois

[mshmgi]

I know for certain that it's illegal in NH as well.

Re:It's still illegal in Illinois

[sribe]

Last time I checked, it was legal in 39 states, illegal in 11. That was a couple of years ago.

Re:It's still illegal in Illinois

[DarkKnightRadick]

heard that.

Re:It's still illegal in Illinois

[DarkKnightRadick]

hrm.

Re:It's still illegal in Illinois

[sribe]

I call it the "liar's law".

That's soft-pedaling it. I call the "Protection of corrupt politicians and law enforcement act" ;-)

Re:It's still illegal in Illinois

[DarkKnightRadick]

wow

Re:It's still illegal in Illinois

[Anonymous Coward]

i.e. I can record you admitting that you're having an affair and send the recording to your spouse, but if I intend to use the recording to blackmail you, then the recording is itself a crime.

Which is like saying it's perfectly legal to drive your car unless you intend to commit a drive-by shooting, in which case driving your car is completely and totally against the law.

The act becomes retroactively illegal based on subsequent illegal acts--or plans to commit illegal acts--which is just stupid.

Re:It's still illegal in Illinois

[hedwards]

Indeed, Florida and Louisiana also seem to make the news all to frequently for it as well. Unfortunately, it's a matter of degrees, from the kind of lying we've come to expect from politicians to bribery and kick backs. I'd be a liar if I suggested that where I'm from is completely clean of it, we've got sunshine laws and have taken steps to take away a lot of the power from the political parties for that very reason, but you're never going to completely eliminate the corruption, just make it difficult enough that it's not a significant concern.

Re:It's still illegal in Illinois

[hedwards]

It's up to 5 years, and he's likely going to be convicted on at least some of those other charges when it goes back for retrial. Despite his characterization as having beaten it, more likely from what I've read the defense just managed to luck out on jury selection and get enough people that were less politically sophisticated and couldn't tell the difference between political talk and corrupt deal making.

Re:It's still illegal in Illinois

[muindaur]

I love that exemption to federal wiretapping law. It's a good thing.

Why?

If I call Citi Bank resolving an issue, then I find out later that it wasn't and they bring me to court, I can use the record of the phone call(with my one party consent) as evidence in my favor.

In fact, there should be federal and state exemptions for this law. Call it the Legal Matters Clause. The clause would allow for one party consent in any case that a legal matter is discussed. All phone calls to a company about a product or service falls under contract law, and matters of will fall under laws regarding the transfer of assets.

I fully agree with the judges decision on this matter. Wiretapping laws were meant to prevent people recording me doing mundane or private acts, not discussing a legal matter.

Re:It's still illegal in Illinois

[Bill_the_Engineer]

Playing devil's advocate, I can see a legitimate reason to require both parties to consent to record a conversation.

Sherrod at USDA was a victim of an edited recording being released to the public, eventually an unedited version was released by the NAACP which hired the camera man. Unfortunately for her the damage was already done.

Two-party consent allows the party without the recorder a chance to specify the terms of the recording (eg. I would like an immediate copy of the tape), the chance to make his/her own recording of the conversation, or refuse and leave.

Everyone in the conversation so far assumes that the tape will be used in its original condition to catch a liar, but nobody thought about an edited version of the recording portraying an honest person as a liar.

Re:It's still illegal in Illinois

[Anonymous Coward]

My main concern is the ability to record cops while I'm being questioned. I need that protection.

COP: "Sir turn off that recorder."
ME: "Why? So you can beat me up, like the other cops I've seen on youtube beating innocent citizens?"

So you are okay with cops beating non-innocent citizens and non-citizens? I don't think you meant it that way. You probably just meant cops beating people.

Re:It's still illegal in Illinois

[Tassach]

I don't think the old lady who was the lone holdout was "less politically sophisticated". My bet is she was a life-long straight-party-ticket voter. There's a lot of people out there (on both sides) who think that anything is OK as long as their party is the one that's doing it. "He may be a crook, but he's OUR crook"

Re:It's still illegal in Illinois

[hedwards]

I'm sorry, but if that's how you talk to cops, you kind of deserve whatever happens to you. You never argue with a police officer, ever. If you disagree there's a venue to handle that, it's called court. And you're even allowed to have an adviser that we like to call a lawyer help you out there. Arguing with cops whether you're ultimately right or not isn't going to do you any favors, LEOs generally have some degree of discretion. It also can very easily come back to bite you on the ass when they start looking more closely at what you're doing, there's no law against them being particularly stringent in writing every applicable ticket or citation that applies to the situation. Just stick to the facts, comply with what you're told to do and if anything happens you can always take it to court.

People don't generally end up being beaten that are complying with the orders they've been given. Sure it happens, but it's hardly a common occurrence.

Re:It's still illegal in Illinois

[Jumperalex]

And that legal theory applied in many scenarios and is, IMNSHO, fucking retarded. The blackmail is already illegal. We don't need to make the means by which the blackmail was facilitated illigel. An act btw, that we already admit is NOT actually a crime in and of itself. It is this legal manuvuering that allows the legal system to pile on bullshit charges in an effort to force defendants to plead out because the sum of the charges, all stemming from only the only "real crime" of blackmail (in this example), are so huge that no one would ever risk going to court and losing. However without that single real crime, there would be no crimal charges at all. Disclaimer: No this has never happened to me, I simply believe it is wrong.

Re:It's still illegal in Illinois

[mea37]

I'm surprised the Connecticut laws woudln't apply to face-to-face conversations; most states' intercept laws apply equally to any conversation.

In any case, this ruling doesn't really change anything. The court's finding is taken almost verbatim from the statute, so it's pretty much nonsense that a federal lawsuit - much less a federal appeal - was ever filed in the first place.

This is not a case where federal law can be used to "trump" state law. If the U.S. Congress passed a law that said "it is legal to record any conversation to which you are a party", then that might trump state all-party consent laws; but the current statute doesn't say that. It only says that recording a conversation to which you're a party isn't a violation of that specific title of the federal statutes. This is not in direct conflict with a state law of which such a recording is a violation.

I believe there are 12 all-party consent states, and some of them claim jurisdiction even for interstate phone calls if one party is in their state. Given the reality of modern telecommunication (cell phones), this ought to be unified under federal statute IMO, and I'd be quite happy to see a universal 1-party consent system.

Re:It's still illegal in Illinois

[Anonymous Coward]

My main concern is the ability to record cops while I'm being questioned. I need that protection.

COP: "Sir turn off that recorder."
ME: "Why? So you can beat me up, like the other cops I've seen on youtube beating innocent citizens?"

And then you get beat up for being "aggressive," "disrupting the peace," "looking at me funny, pal." Also, they take away your recording device and claim you never had one.

It's a no-win situation nowadays, unless you have somebody else covering you with another recorder.

Re:It's still illegal in Illinois

[Anonymous Coward]

That's good for the white folks, but what happens when you aren't white?

Re:It's still illegal in Illinois

[JxcelDolghmQ]

Moar like FAILinois, amirite?

Re:It's still illegal in Illinois

[blair1q]

But driving a car isn't invading someone else's privacy. Recording them without their knowledge in a situation where they have an expectation of privacy is.

See, this is why we have courts and case law. So we can focus on the case and not make ourselves crazy with wild speculation about different cases.

Re:It's still illegal in Illinois

[blair1q]

No, this makes it illegal to record someone intending to (e.g.) blackmail them.

Meaning you can be busted before you even threaten them with blackmail, if it can be proved that was your intent. And the situation can be obvious enough that your only intent could be blackmail. Or you could be recorded saying that's why you were doing it. Or you could confess.

It's not a bullshit charge. Doing bad things is bad. The law wants you to know that.

Re:It's still illegal in Illinois

[Anonymous Coward]

I think Cook County should be a state.

That way the remainder of Illinois might have a shot at clean government & representation in the Senate.

Re:It's still illegal in Illinois

[GiveBenADollar]

Sorry citizen, but public officials cannot be recorded without their consent. It's not like you pay their salaries or anything. We went from a people that control the government, to a government that controls the people.

Re:It's still illegal in Illinois

[HungryHobo]

Lets follow that path a little.
Someone could edit a letter between themselves and someone else and release that, should keeping correspondence without the explicit permission of both parties be illegal because of that?

And if the editing is malicious and misrepresents someone then it should be covered under libel laws.

All your approach does is allow politicians and policemen know when they should actually pay attention to the rulebook rather than having to stick to it all the time.

Re:It's still illegal in Illinois

[Haffner]

So make the release of an edited recording illegal. Simple?

Re:It's still illegal in Illinois

[Jumperalex]

and if what you are "told to do" is to turn off your legal recording device so they can harrass you then what? You are pathetic with a capital P; just lick the hand that beats you while you are at it.

Deserve? DESERVE?!?! are you friggin kidding me. First while I generally do speak to cops with respect it is because they come at me from a place of respect (like the last bullshit ticket I got which I 100% deserved but the scenario was still bogus and the cop should have warned me and moved on). But, if they start out from a place of bullshit, like pulling me over for no good reason and I KNOW I'm 100% on the legal side, I will and HAVE called a cop a liar to his face

Cop tailgates me in the right lane at 2am for 5 miles with his highbeams on between Cincinatti and Dayon OH. Cruise control is set at one mile below limit. He FINALLY pulls me over:

Cop: I pulled you over because you crossed the white line,
Me: That isn't true and you know it, but lets not argue about it ... no ticket and not even a field sobriety test which was why he pulled me over I have no doubt.

And this has nothing to do with complying with orders. This has to do with legally recording an interaction with a public official to ensure he does not abuse his authority, even while complying. Or more to the point, to PROVE that you complied, and the abuse still happened. You don't think it happens very often huh? Gee I guess we'll have a hard time knowing without the recordings. Oh wait, we DO have the recordings so we know it DOES happen.

Re:It's still illegal in Illinois

[Haffner]

The problem is, it should NEVER occur, and if it does, the offending officer should spend some time getting to know the people he helped put away.

Re:It's still illegal in Illinois

[HungryHobo]

much better to just keep the recorder hidden or hack it so the "off" button does nothing but turn off a small green light.
Being a smartarse is never smart but your assertion of

"never argue with a police officer"

is true in the same sense as the assertion

"never argue with someone 2 feet taller than you who's wearing lots of leather with a big knife and a short temper"

Re:It's still illegal in Illinois

[HungryHobo]

similar idea, white collar crime where some email exchange is involved each and every email counts as a separate case of wire fraud so someone in the course of a few conversations can rack up hundreds of years of jail time.

what I don't get is why they don't just bite the bullet and make committing any crime while having eyebrows and not wearing a pink shirt with the word "crime" written on it prominently a mandatory 1000 year sentence.

Then everyone who loves the "but it means they can add extra charges" thing can be happy and we can do away with all the other inane bullshit.

conspiracy is the best though.
there's no need for anything illegal to actually happen other than the conspiracy itself.

So if you and I have a chat about committing a felony, lets say we hatch a plot to make ourselves an unlicensed copy of Adobe Photoshop CS5 Extended.(It's over the thousand dollar limit making it a felony )

"hey, know anywhere I can pick up a copy of photoshop?"
"Sure, try the pirate bay."

Next I commit any overt act, you do nothing.
Lets say I look up the listings on the pirate bay.
Well both you and I can then be done for conspiracy.
I may have missed some of the finer points of the requirements for a conspiracy as IANAL but you get the idea.

Re:It's still illegal in Illinois

[poetmatt]

thank you. I would +1 mod ya if I could while posting. That's what I had thought, but wanted to make sure.

Re:It's still illegal in Illinois

[Anonymous Coward]

But driving a car isn't invading someone else's privacy. Recording them without their knowledge in a situation where they have an expectation of privacy is.

Who is talking about an expectation of privacy or invasion thereof? You could record a conversation with a coworker in their cubicle, or at McDonalds, or on the sidewalk, and still be charged for criminal intent, even when a privacy lawsuit would have no merit.

Intent is bullshit. It's the same bullshit that makes it a "bigger" crime to drag a guy behind a truck because you hate gays/blacks/dwarves than because he slept with your girlfriend, though at least in hate crimes cases there has to be an actual crime committed before intent is weighed.

See, this is why we have courts and case law. So we can focus on the case and not make ourselves crazy with wild speculation about different cases.

That's the point. We already have laws to deal with blackmail. Making an act's legality conditional on a person's state of mind is insane.

Re:It's still illegal in Illinois

[BitZtream]

Sucks to be you, here its entirely legal to record anything as long as one person in the conversation is aware of it.

I can walk into your house and record everything that happens without your consent because I gave myself consent.

Most states that aren't run by the mafia probably are a lot different than Illinois.

Re:It's still illegal in Illinois

[BitZtream]

...

Yea, because they wouldn't just take the recorder and then beat you up if they are that corrupted.

Thats retarded logic. Your recording device would just disappear if they wanted to do something illegal to you. They aren't going to care about some recording law if they aren't going to be bothered with the other laws.

Your logic is ... well ... its not.

Re:It's still illegal in Illinois

[mcgrew]

There was one woman on the jury -- a lifelong hardened Chicago Democrat with ties to an organization that Blago got lots of money for, who held out for "not guilty" on all charges. She relented on the smallest charge but held steadfast for acquittal on the rest, even though the other 11 wanted him in prison. The judge has called a mistrial because the jurors couldn't agree.

The one charge he was found guilty for was the same thing Martha Stewart got six months for.

Everyone wants a new trial: the prosecution, the citizens of Illinois, even 11 of the 12 jurors. The only ones who don't want him in prison are him and his cronies.

My next journal (not yet written) is going to be about Blago's trial and dirty politics.

Re:It's still illegal in Illinois

[HungryHobo]

That would make any news show really really really dull.

How about "maliciously edited" or "misleadingly edited"

Re:It's still illegal in Illinois

[ErikZ]

The people who fired Sherrod owned the complete, unedited copy of the tape.

AND you're being misleading. For everyone who doesn't know about the issue, the "Edit" was to cut the tape. You know, instead of playing the whole thing, you only show the 2 minutes of relevant material.

Re:It's still illegal in Illinois

[mcgrew]

Don't blame the whole state for what is really just the fault of Chicago and its exurbs. The people living in the rest of Illinois try to clean-up the corruption

You don't live in Illinois, do you? The whole state is crooked. Cahokia (down by St Louis) has had the same Mayor for decades, despite the fact that it changed from a nice suburb to a ghetto after they paved E. St. Louis. I grew up there, Cahokia was always corrupt.

I'm living in Springfield now, and the legislators come here for legislating sessions. The way those folks drive you can see that the people making the laws have less respect for them than anyone. A pair of judges here got into hot water a month or two back for one fixing the other's daughter's traffic ticket. A cop here was found planting evidence on a drug suspect.

The citizens would like it cleaned up, but we're powerless; we get the candidates that get nominated. Do I vote for a shit sandwich or a turd sandwich?

Re:It's still illegal in Illinois

[LambdaWolf]

The act becomes retroactively illegal based on subsequent illegal acts--or plans to commit illegal acts--which is just stupid.

It makes more sense if you understand the concept of mens rea. The act does not become illegal retroactively as you say; it is illegal or not, at the time you make the recording, based on your state of mind at that same time. In other words, you're guilty if and only if you're thinking to do harm, which is actually pretty universal in criminal law (setting aside criminal negligence and "victimless crimes"). IANAL.

Re:It's still illegal in Illinois

[mcgrew]

My bet is she was a life-long straight-party-ticket voter.

It's even worse. I heard on the radio this morning that she was a staunch, lifelong Democrat with ties to an organization (Acorn IINM) that got lots of money because of Blago.

Re:It's still illegal in Illinois

[mcgrew]

I've jokingly said that all you have to do to cut Illinois crime by 90% and raise its school test scores by 90% is give Cook County to Michigan and give E. St. Louis to Missouri.

Re:It's still illegal in Illinois

[mcgrew]

Wow, two mods on his post and both marked "troll"? WTF? That's no troll, that's good, level headed advice. If you give a cop shit, even when you're doing nothing wrong, you're in trouble. If you're polite and respectful you can often get out of a ticket or worse.

Damned dumb kids. Pay attention, the guy's right.

Re:It's still illegal in Illinois

[Smauler]

I'm sorry, but if that's how you talk to cops, you kind of deserve whatever happens to you.

I was going to write a well thought out insightful rebuttal to this point... but I can't quite get past "what the fuck are you saying?". People have the right to speak to police basically how they want (with few valid exceptions). People like you who kiss the cop's ass every time they look at you mean are part of the problem. If police expect everyone to treat them as if they were on a pedal stool, then they will treat those that don't worse.

People don't generally end up being beaten that are complying with the orders they've been given. Sure it happens, but it's hardly a common occurrence.

So your advise is to just cross your fingers, and say "yes sir" or "no sir" as appropriate, then hope that you're not one of the few people that is beaten anyway? YOU ARE PART OF THE PROBLEM.

Re:It's still illegal in Illinois

[mcgrew]

Move to Taiwan, then. We don't need that shit here. And remember, you're innocent until proven guilty in a court of law, so anyone a cop arrests, whether or not beats, is innocent.

Re:It's still illegal in Illinois

[cfulmer]

Why are you making this recording?

Are you doing it because you want to blackmail somebody, or because you want to use the information to commit fraud later? If so, then you've violated the Wiretap Act.

Are you doing it for an innocent reason, not to commit a crime or to do something that they could sue you over? If not, then you haven't violated the Wiretap Act. (And, oh, by the way, making the recording itself doesn't count as one of those things they could sue you over -- it has to be something separate.)

That parenthetical is what this case added to what we already knew about the Wiretap Act.

Re:It's still illegal in Illinois

[Low Ranked Craig]

It's not called "the Chicago way" for nothing.

I lived there for a while as a kid, and it was common knowledge who owned who, and who you could mess with and who you couldn't.

I find it almost impossible to believe that some of the jury members haven't been bought or threatened - powerful people in Cook county usually get their way regardless of the law.

To be fair many other places have the same issue, but it doesn't seem to be as prevalent and blatant as it is in Chicago.

Re:It's still illegal in Illinois

[Jumperalex]

You are correct, he should not have been modded Troll. But he is also WRONG. Not wrong about the reality of the world, but morally wrong. Wrong in the way that blaming a rape victim for wearing a mini-skirt is wrong.

As people living in the same society I completely agree that we should all treat each other with respect. But it goes both ways. Plenty of cops treat the people they deal with in a respectful manner. But plenty do not. Even more so, plenty do not do it all the time to everyone equally. I have been friends with cops, hung out with them at the coffee shop or their favorite bars. And I have to tell you listening to some of their stories both amaze me at their foritute and sicken me with their attitude. More than once my response to a story was, "and WTF in our history makes you think I find that 1) funny and 2) even remotely acceptable behavior?" Really and trully they suffer from the same problem we all suffer: a lack of opposing view points tends to reinforce behavior and even normalize it among a given subset.

The problem with the above post is that it places us "mere citizens" in a position of having to "avert our eyes" to those in positions of power and authority. To do otherwise risks retribution not for infactions of actual law but because their inflated egos have been popped by a pion who dares to treat them as an equal.

Re:It's still illegal in Illinois

[Chowderbags]

So if I go to Chicago, can I sue any stores that have video cameras pointed at a sidewalk? No? Why?

Re:It's still illegal in Illinois

[Anonymous Coward]

Wrong in the way that blaming a rape victim for wearing a mini-skirt is wrong.

I don't know about that. Every time my girlfriend wears a mini-skirt around the apartment it's her sign to me to have my way with her.

Re:It's still illegal in Illinois

[Nematode]

So...you're saying that it is insane to make insanity a defense to a criminal charge?

Snark aside, there are problems with making the illegality of a recording depend on what you plan to do with the recording later on. Like, if you intend to blackmail the person when you make the recording, but later change your mind, that's illegal. But if you don't intend to blackmail when you make the recording, and then change your mind and actually do it, that's not illegal.

But the law draws repeated distinctions based on intention and state of mind. Intentional torts vs negligence. Fraud vs ....not fraud. Insanity vs sanity. Difficulties of proof don't always mean we should never consider intent or state of mind. In this case, though, I probably agree with you. It doesn't make sense for the wiretapping law.

Re:It's still illegal in Illinois

[Anonymous Coward]

And where is "here" exactly? Maybe you could let us know where this great place is so we can all move there.

Re:It's still illegal in Illinois

[mcgrew]

Doing bad things is bad. The law wants you to know that.

No, doing illegal things is against the law; it has nothing whatever to do with good and bad. If you have an illicit affair with your best freind's wife, that is obviously wrong by most people's standards, but it's perfectly legal in Illinois. Your smoking a joint harms nobody, but that's illegal and they'll put you in jail for it. It's perfectly legal to go to a casino and play poker, but to sit in your kitchen playing poker with your friends is against the law. It's the same activity, how is it "bad" in your own home but "not bad" in a casino?

Re:It's still illegal in Illinois

[PRMan]

It's only audio that's prohibited, not video. There's a reason why these devices usually have no sound.

Re:It's still illegal in Illinois

[mcgrew]

Wrong.

...several states (i.e., California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan[10], Montana, Nevada, New Hampshire, Pennsylvania and Washington) require that all parties consent when one party wants to record a telephone conversation.

Re:It's still illegal in Illinois

[camg188]

I view it as more like documenting my own life. If something happens that I can hear with my own 2 ears or see with my own 2 eyes, why shouldn't I be able to record it also, with or without anybody's consent. It's not the actual recording of events that harms another person, it's the use of the recorded material. Using a recording for legal protection, documenting events or conversations, etc. should be legal.

Re:It's still illegal in Illinois

[PopeRatzo]

Blago's max sentence is 5 years

Let's hope his hairdo gets the death sentence.

I understand Justin Bieber called the former governor and is demanding his hair back.

Re:It's still illegal in Illinois

[PopeRatzo]

It isn't the legislators, it's the police

There may be something to this. The number of people getting prosecuted for recording public behavior by police is growing at an alarming rate

Re:It's still illegal in Illinois

[GrumblyStuff]

What the fuck does it matter?! Blackmail is blackmail whether you do it with a recording, photos, hacked emails, or siccing a PI on someone to dig up dirty work! GAH!

Not yelling at you, just at the thought of this.

Re:It's still illegal in Illinois

[PopeRatzo]

You know, instead of playing the whole thing, you only show the 2 minutes of relevant material.

Are you saying the part immediately after the edit where Sherrod explained how she decided not to be racist and to help the white farmers and learned from the experience was irrelevant?

If you publish an excerpt with the intent to show racism, and the part immediately after you make the edit shows that there wasn't racism, that's really sleazy character assassination, and probably grounds for legal action (which is now underway). And coming from a man who claims to be an example of "conservative journalism", I'd say that makes Andrew Breitbart a lying, greasy douche-nozzle. And before you make what I expect to be your next rationalization, yes, Breitbart admitted to knowing that the tape was edited and also knowing about what was edited out.

Re:It's still illegal in Illinois

[pnuema]

Relevant material? You mean the two minutes taken out of context that when put in their proper context were completely innocent? You know, kind of like the hatchet job the right did on Obama's pastor? They are quite good at twisting the truth. Hell, Fox News went to court to defend their right to mislead. At this point, if you trust anything coming out of the right's media machine, I'd have to question your intelligence.

Re:It's still illegal in Illinois

[Mister Whirly]

If that is true, it was really stupid for the prosecution in jury selection to allow her on the jury.

Re:It's still illegal in Illinois

[blair1q]

No, doing illegal things is against the law; it has nothing whatever to do with good and bad

You apparently don't vote hard enough.

Re:It's still illegal in Illinois

[blair1q]

Snark aside, there are problems with making the illegality of a recording depend on what you plan to do with the recording later on. Like, if you intend to blackmail the person when you make the recording, but later change your mind, that's illegal. But if you don't intend to blackmail when you make the recording, and then change your mind and actually do it, that's not illegal.

That's not a problem. It's ironic, but it's legitimate law. The intent is what's aggravating the situation, not the recording. If you just make recording illegal, then innocuous errors become crimes. But if you make intent illegal, then you can try a person for doing something wrong.

I can record you on a phone saying something that means nothing to me. Then later I can find out from the TV that you told the police you weren't downtown, and I can remember you told me on the phone you were downtown. Now I can blackmail you. And while I'm using the recording to blackmail you, the act of recording it wasn't part of the progress of the crime of blackmailing you.

But let's get melodramatic and introduce a gun to make it clearer: Using your gun to kill someone is probably manslaughter. Buying a gun to kill someone is proof of murder. Committing manslaughter and then being accused of buying the gun to do it? You're going to want a distinction there between buying with intent and buying without intent.

Same deal here. Although buying a gun intending to kill someone and then not doing it won't get you jailed, but recording someone intending to blackmail them and then not doing it might (although that's probably just a court case away from not being true any more).

Re:It's still illegal in Illinois

[sco08y]

it shouldn't be, IMO

I agree. I call it the "liar's law". Of course, with the dirty politics we have in Illinois, it's no wonder legislators don't want their words held against them.

If you think about it, your typical legislator does dozens of interviews, writes pieces and has his or her voting record publicly available. And they've got an opposition that has the resources to dig it all up. Sure, there are scandals tucked away, but they're mostly pathetically small amounts of money and sex you couldn't pay me to watch. The terrible, terrible laws being written are all public record.

There are situations where politicians go back on their promises, but there are specific reasons why, and I see a huge amount of criticism that really comes down to critics seeing what they want in candidates, and being upset when it's not the case. There's also cases when the coverage is thin, for example, when McCain nominated Palin, we essentially stopped paying attention to the presidential candidates for months.

In case you think I'm being naive, also consider this. There are a lot of people in politics, and the vast majority of them have no real reputation, no affiliation with a group anyone has heard of, so these folks really can lie with impunity. Legislators get hit with this stuff all the time, but they generally just have to take it on the chin. (Though the fact that they're beating it by carrying cameras themselves is, to my mind, outstanding.) I'm not trying to make a case that they're necessarily honorable or deserving of our sympathy, just that there are people who are a lot worse and really do a lot of damage to our political system.

Re:It's still illegal in Illinois

[Enigma23]

It doesn't break Federal law, but it may be against state law. Recording someone without their consent is a felony in Illinois, and probably other states as well.

IIRC, recording a telephone conversation (mobile or fixed line) without someone's knowledge and consent is a breach of the Telecommunications Act in the UK. Of course, there are exceptions that apply to the Security Services, but even they need express permission to tap/monitor a phone line or mobile number.

Re:It's still illegal in Illinois

[Anonymous Coward]

GTFO of my country, coward.

Re:It's still illegal in Illinois

[Zerth]

If you are using a cell phone, that recording might not actually be on the device. There are several stream-to-net recorders.

Re:It's still illegal in Illinois

[Anonymous Coward]

They'd better get an entirely new jury if they want more convictions. 11 say guilty, 1 says innocent, and absolutely refuses to see otherwise? Please, someone in the jury was bought, and the only thing that would turn their heads is a bigger offer than whatever they got for keeping to 'innocent'.

Re:It's still illegal in Illinois

[Chowderbags]

Then can I go to a concert and sue them if they're making a recording of the audio because my voice might get imperceptibly picked up on the microphone? Or sue if someone else in the room calls a tech support hot line that records the call and I don't know about it and say something?

Re:It's still illegal in Illinois

[Citizen of Earth]

I'd be quite happy to see a universal 1-party consent system.

That's what Canada has.

Re:It's still illegal in Illinois

[Entropius]

That's basically what I was saying, but I didn't want to trot out the scary Latin term. :)

Re:It's still illegal in Illinois

[Entropius]

In Illinois, this just means you don't vote /often/ enough.

Re:It's still illegal in Illinois

[Anonymous Coward]

It should be called the Homer Bad Man law

Somebody had to take the babysitter home. Then I noticed she was sitting on [splice] her sweet [splice] can. [splice] -- o I grab her -- [splice] sweet can. [splice] Oh, just thinking about [splice] her [splice] can [splice] I just wish I had he -- [splice] sweet [splice] sweet [splice] s-s-sweet [splice] can.

Re:It's still illegal in Illinois

[TheVelvetFlamebait]

I know this isn't a laughing matter, but I can't help it. I think it's pretty funny that you think a recorder will stop the kind of police brutality that you've previously seen on recordings posted on youtube.

Re:It's still illegal in Illinois

[HiThere]

Right or Left, it doesn't make much difference. They both lie freely. Allowing a "news program" to intentionally misrepresent the truth was a very bad decision. Don't know what would have been a good one, though. If you're vulnerable if you present lies, then someone will say that you lied, and probably be able to prove it. (Nobody can be accurate all the time.) I've generally given up on the media as a source of truth, and depend more on bloggers. And THEY lie. But they're much less professional about it, so the lies are usually easier to spot.

Re:It's still illegal in Illinois

[commodore64_love]

>>>I'm sorry, but if that's how you talk to cops, you kind of deserve whatever happens to you. You never argue with a police officer, ever

You've been marked troll, but you're actually right. The best way to talk to the man with the gun is (1) respect (2) calmness and (3) try to avoid talking at all (remaining silent is your right).

Still I would be honest with the cop..... I fear that if I turn-off the camera or audio recorder, I might be harmed. I would also ask the cop if I'm allowed to record the conversation with pen-and-paper, after I turn off the audio recorder.

Re:It's still illegal in Illinois

[ridgecritter]

This conduct could easily support a tort claim for intentional infliction of emotional distress. If proved, the verdict might be used as res judicata against the recording party in a subsequent trial on the recording.

Re:It's still illegal in Illinois

[GWRedDragon]

Firstly, we're talking about criminal law. Secondly, you have no expectation of privacy in a concert hall filled with other patrons (expectation of privacy is a usual component of these laws). In the last case if the person on the other end of the line made a notification at the beginning of the call that it would be recorded, they likely did not intend to record someone who had not been notified and consented, so mens rea does not exist.

Re:It's still illegal in Illinois

[moortak]

There is generally a sign in concert venues if taping is occurring.

Re:It's still illegal in Illinois

[Anonymous Coward]

You make it sound as if they're all like pavlov's dogs, if you kiss their asses they come to expect it.
They aren't morons ya know and if you followed one around for a day or two you'd realize that they get treated poorly by people all the time.
How about showing some respect for the simple reason that they are people too? They are moms and dads, uncles, aunts, sons and daughters etc. not just brainwashed drones.
I've been on the receiving end of corrupt cops before and it wasn't fun at all. But when I went down to the police station with others who had legitimate complaints about these particular officers the chief not only took us seriously, he also ended up firing one of them. I was in my early twenties and living in the poorer section of town too so there ya go.
Believe me, I have a deeply ingrained problem with authority but I don't let this give me license to treat those of authority rudely. I think those that do are part of the problem not those who don't.

Re:It's still illegal in Illinois

[mcgrew]

Are you kidding? In Illinois, even dead people vote!

Re:It's still illegal in Illinois

[wickedskaman]

Turd. It sounds funnier.

Re:It's still illegal in Illinois

[ncc74656]

I don't think the old lady who was the lone holdout was "less politically sophisticated". My bet is she was a life-long straight-party-ticket voter.

You would be correct in your suspicions:

Breaking: Blago Holdout Retired State Employee Who Once Handed Out Campaign Literature For Relative Seeking Office; NPR and Liberal Talk Radio Listener

Juror # 106 [Jo Ann Chiakulas], a black female believed to be in her 60s, is a retired state public health director who has ties to the Chicago Urban League. She has handed out campaign literature for a relative who ran for public office. She listens to National Public Radio and liberal talk radio shows.

Blagojevich And The Revenge Of The Machine

Let a few years go by and we can find Mr. Lumpkin and Ms. Obama on the same page, literally if not metaphorically - on p. 36 of the annual report for the University of Chicago Hospitals, we see that Mr. Lumpkin is on the Board of Trustees and when Ms. Obama was Vice President for Community and External Affairs.

Which means what? Maybe nothing - Chicago is not that big a city if you restrict the world to black community activists such as Ms. Chiakulis or the Obamas. But it is the sort of coincidence that may or may not be a coincidence. Fortunately, we can rest easy knowing that our tireless watchdog press will ferret out the truth.

MY TIRED EYES FAIL ME... Time does not permit, but it seems from the picture and bio that Dr. Lumpkin may also be black. I only care because it increases the odds that he took a professional interest in both Ms. Obama and Ms. Chiakulis.

Most states already have an "either party" statute

[tomhudson]

... where, as long as ONE of the parties of the conversation are aware it's being recorded, then it's legal.

For them, this just affirms "business as usual".

Recording police?

[Manfre]

I wonder if this means it is still illegal to record police in public...since some cities have laws against that.

Re:Recording police?

[corbettw]

It's never been illegal to record police in public. That hasn't stopped certain corrupt police departments and district attorneys from persecuting people who do so, of course, but they've used twisted logic, not actual law, to make their cases. Radley Balko at Reason has done a number of excellent exposes on this problem.

Re:Recording police?

[gstoddart]

I wonder if this means it is still illegal to record police in public...since some cities have laws against that.

Hell, does this pave the way to just simply record everyone in public, all of the the time, and just say you no longer have any real expectation of privacy anymore?

Man, Orwell had so much stuff right it makes me want to cry some days.

Re:Recording police?

[Anonymous Coward]

How do you have an expectation of privacy when you're in public? Do you go around waving your arms and yelling "Don't look at me!"

Re:Recording police?

[Dunbal]

Do you go around waving your arms and yelling "Don't look at me!"

      Nah he figures he'll get much less attention by going around wearing a ski mask.

Re:Recording police?

[oodaloop]

Practically makes me want to drown my sorrows in synthetic Victory Gin while I try to keep the tobacco in my last Victory Cigarette, while sitting just out of range of the telescreen of course. Orwell got more than a few things wrong too, and pretty much every dystopian novel got at least a few things right.

Re:Recording police?

[gstoddart]

How do you have an expectation of privacy when you're in public? Do you go around waving your arms and yelling "Don't look at me!"

I expect that I can be seen. But, if I'm in a park and move away from everybody in order to discuss something out of earshot of everybody else, I don't expect that it would be legal for all of the trees to be simply recording everything that happens on the off beat chance somebody, at some time is doing something shady/illegal.

Privacy doesn't mean that I get to walk around with an invisible cloak and nobody will ever know I'm there. It means being able to take reasonable steps to ensure that the conversation you're engaged in is only heard by the parties involved. Being out of ear shot of a 3rd party is a reasonable expectation that the content of the conversation is private.

Re:Recording police?

[gstoddart]

Nah he figures he'll get much less attention by going around wearing a ski mask.

Oh, come now, it's a Luchadore mask and tights. :-P

But, seriously, unless you are being recorded (both audio and visual), conducting business in plain sight in a crowded area has long been considered to be about as private as you can get without being conspicuous about it. You're about as anonymous as you can get -- unless you are truly being tailed that is.

I was specifically talking about blanket recording of everything everybody does in public and the possibility that everybody should assume everything they say, ever, is recorded.

Re:Recording police?

[PPH]

The same logic applies (or should apply) to video recordings. If you are doing it in public, where it can be seen, it can be photographed, so long as the technology doesn't surpass the capabilities of a casual observer* (telephoto lenses, etc.). So if you are sitting in Starbucks, yakking with your freinds, if the guy in the next booth can hear you, why not record you?

If you 'move away', that's another matter.

*I've done some work with private detectives and this is the standard that courts apply to video recordings used as evidence.

Re:Recording police?

[profplump]

I don't agree. Secluded locations in public are still in public. It's not an unreasonably burden to take your conversation onto private property, out of view/earshot of the public, and a failure to do so suggests that you don't care that anyone else heard your conversation, or at least don't care enough to make it truly private.

For example, you wander off into the trees to get some "privacy" in public. But unbeknownst to you, someone else already wandered into those same trees and is dictating their thoughts into an audio recording device. During a lull in their dictation, you approach them and have your "private" conversation. Are you suggesting that their recording of your conversation would not be legal because you expected privacy in a secluded portion of a public area? Or that the person already in the trees must announce themselves or stop their recording?

Re:Recording police?

[IndustrialComplex]

Orwell got more than a few things wrong too ...

Give it time.

Re:Recording police?

[Anonymous Coward]

Hell, does this pave the way to just simply record everyone in public, all of the the time, and just say you no longer have any real expectation of privacy anymore?

If you are IN PUBLIC you already have zero expectation of privacy, the SCOTUS has confirmed this previously, not sure why you are surprised...

Re:Recording police?

[HungryHobo]

Try reading "Times eye" by Arthur C. Clarke.

The general gist is that someone figures out the ultimate surveillance system.

I'm of the opinion that everything being recorded isn't so bad as long as it's symmetric.

If the police want to record everything I do I want the right to record right back.

I approve of police being required to have dashboard cameras.
but I want to have the right to my own recording in case theirs mysteriously goes missing.

Re:Recording police?

[HungryHobo]

Mistake, the book was "The Light of Other Days"

Re:Recording police?

[Anonymous Coward]

Sadly, it would almost be worth all speech public or otherwise being recorder, IF and only if it also recorded absolutely everything said/done by the police and politicians as well.

But much like in 1984, I'm sure they will have the option to turn off their telescreens.

Re:Most states already have an "either party" stat

[cgenman]

There are twelve 2-party states out there, and some of them are big ones like California and Florida. And calling a two-party state from a one-party state does mean you need to follow the laws of both states.

Check your local rules before you start recording.

Re:Most states already have an "either party" stat

[DarkKnightRadick]

Actually wouldn't that fall under the domain of the Feds considering it is interstate?

Re:Most states already have an "either party" stat

[Lunix Nutcase]

And calling a two-party state from a one-party state does mean you need to follow the laws of both states.

I'm pretty sure that would fall under Federal jurisdiction.

Homer says...

[brainproxy]

Mmmmmm... Crime Torte

Re:Most states already have an "either party" stat

[MBGMorden]

There are twelve 2-party states out there, and some of them are big ones like California and Florida. And calling a two-party state from a one-party state does mean you need to follow the laws of both states.

IANAL, but couldn't you only be criminally prosecuted in the state you broke the law in though?

Supposed I call CA from TN and record the conversation. I couldn't be criminally charged in TN as I broke no law there. If charges were brought in CA then that would be irrelevant if I never actually went there right? Afterall that seems about as likely as being tried in China for me posting an account of what happened at Tienanmen Square. Sure it was against the law there, but I'm not there, so it's irrelevant.

"quality control"

[bsDaemon]

Just announce at the beginning of your conversation that the call may be recorded for quality control purposes.

Re:"quality control"

[PPH]

"I'm sorry sir. But the your heavy breathing, grunting and assorted orgasmic noises don't measure up to our minimum requirements for a prank call."

Re:Most states already have an "either party" stat

[SoupGuru]

I admin a phone system in Idaho, a one party consent state. Basically, we can record anything without warning, even calls from two-party consent states.

Useful against telemarketers

[KnightBlade]

So I can record those spam calls from telemarketers!

Re:Most states already have an "either party" stat

[darkmeridian]

There are generally exceptions in two-party consent states when recording calls without the consent of the other party if it is reasonably expected to retain evidence of a crime such as harassment or blackmail. In other words, it's generally okay to tape record a prankcaller or blackmailer without their consent.

I don't think it should be illegal anywhere!

[anglico]

There are way too many people lying and getting away with it nowadays, politicians or otherwise. Do I want all my conversations recorded, no, but I've tried to live with the motto of "Say what you mean and mean what you say". I wont say anything about someone unless I am willing to say it to their face and I think that is something missing from society today. I've had instances where a recorded conversation would have come in very handy in defending myself from ex girlfriend's attacks but it wasn't that big of a deal to me.

Re:I don't think it should be illegal anywhere!

[gstoddart]

Do I want all my conversations recorded, no, but I've tried to live with the motto of "Say what you mean and mean what you say". I wont say anything about someone unless I am willing to say it to their face and I think that is something missing from society today.

It's not about what you say about someone. It's about friggin' thoughtcrime.

"Are you now or have you ever been a member of the communist party? Are you a homosexual? Do you disagree with the policies of the current government?"

Sometimes, allowing people to record everything you do isn't about catching liars, as it is about controlling what you do. There's all sorts of ways that allowing recording without any restrictions might cause all sorts of legal issues.

It also throws open the door for massively widespread government surveillance without any warrants or oversight, because it's clearly legal to just go ahead and do it. God knows how many more even broader interpretations will be contrived by people with enough motivation to give themselves permission to do something.

Re:I don't think it should be illegal anywhere!

[RyuuzakiTetsuya]

Let's say we have a conversation. I record it. I pull an Andrew Breitbart on it and make it sound like you want to murder your wife/employer/boyfriend/husband/mechanic and make it a credible threat and then I play it for them. That may ruin your life. Over a recording you didn't want to happen.

Re:I don't think it should be illegal anywhere!

[s73v3r]

Agreed that's why the Government shouldn't be able to record every conversation I have. However, if I'm having a conversation with another private party (or hell, maybe even the Government), I should be able to record said conversation, at the very least for note taking purposes, and at the worst for a CYA measure. In the former case, a courtesy notice that I am recording would be nice, and probably expected. I'm not so sure about the latter.

Re:I don't think it should be illegal anywhere!

[gstoddart]

Agreed that's why the Government shouldn't be able to record every conversation I have.

The problem is, we've already seen what happens when the Government is the only one prohibited from doing this.

There's all sorts of information the government isn't allowed to gather domestically without running afoul of something. The problem is, they merely buy the information from a corporate entity, and the whole thing becomes legal.

What used to be the "poisoned well" is now the drinking fountain.

So, what stops the CIA from forming a shell company whose job it is to install surveillance audio everywhere, buy the data, and the do a wide-scale domestic spying program?

When technology gets out ahead of laws, that's exactly what happens. If you think it couldn't/wouldn't/hasn't happen ... well, I don't agree with that conclusion. You have but to look at warrantless wiretapping to know damned well it will.

Re:I don't think it should be illegal anywhere!

[anglico]

But I don't really say anything that I'd care about coming back to haunt me. Granted right now we live in a semi-free speech society, and that could change but I still can't see a real problem with it.

Now to address the other part of your post concerning the government's surveillance, how about if it is going to be initiated for Law enforcement then restrictions should be in place, like warrants etc... So if a cop or federal agent comes to your house to talk to you about your recent postings online they have to tell you that it is being recorded or something similar to that.

Obviously there are going to be problems with abuse and such but it just doesn't seem to be stopping the government anyway.

Re:I don't think it should be illegal anywhere!

[ArbitraryDescriptor]

But then you've recorded it with the intent of commiting a tort or crime. ('tort of crime' is a typo in the article)

' 2511(2)(d) requires that a communication be 17 intercepted for the purpose of a tortious or criminal act 18 that is independent of the intentional act of recording.

Re:I don't think it should be illegal anywhere!

[phantomfive]

It's illegal for the same reason you need a search warrant to acquire someone's video store rental record. During Robert Bork's supreme court confirmation hearing, someone went and got his video rental record from Blockbuster. Although it was harmless to him, other politicians were afraid the same thing would happen to them, and they knew it wouldn't be harmless. So they made it illegal to acquire someone's video rental record without a search warrant.

Re:Most states already have an "either party" stat

[Anonymous Coward]

I admin phone systems in several states, including both 1 and 2 party states, and I hate to tell you this but you're breaking the law. You're not breaking Ohio law, but you're breaking the laws in the 2 party states. You could technically be extradited, but it's unlikely. However, do you really want a bench warrant issued against you in each of a dozen states?

iphone, iphone, iphone, iphone...

[rosvall]

Why is it important that the recording was performed with this particular device?
Are these kinds of rulings specific to the equipment used, or is this just the kind of story that needs buzzwords to get attention from certain demographics?

Re:iphone, iphone, iphone, iphone...

[Anonymous Coward]

The fact that it was recorded on an iPhone brings the reader's impression of the event down from 'police-organized sting operation' to 'anybody could be recording any conversation at any time'.

Re:iphone, iphone, iphone, iphone...

[Waffle Iron]

Back in the 1970s my dad had a magnetic pickup with a suction cup that we could stick on our hefty Bell System phone. When plugged into our Radio Shack portable cassette recorder, we could touch upon these exact same legal issues, almost 40 years before this iPhone app!

But I guess that due to the reality distortion field, none of that really ever happened. None of this was logically possible before the iPhone App Store. Thanks to the iPhone, my childhood has vanished; it never existed at all. Now I feel like a lost character in a Twilight Zone episode.

Re:iphone, iphone, iphone, iphone...

[Anonymous Coward]

... is this just the kind of story that needs buzzwords to get attention from certain demographics?

Ding, ding, ding! It gets past the Slashdot geekgasm filter.

Re:iphone, iphone, iphone, iphone...

[SirGarlon]

Lawmakers and judges don't understand technology, so the law does regard different technologies as totally different. So for example the government can read your e-mail without a warrant but can't read your postal mail without a warrant; VoIP has different regulations than circuit-switched telephones; video rental records are mandated by Federal law to be private, but your Web browsing history is not. It's madness.

Whether an existing law applies to a new technology, or not, is pretty much a roll of the dice.

Re:iphone, iphone, iphone, iphone...

[mounthood]

Why is it important that the recording was performed with this particular device?

It's unique because the iPhone owner will have notified everyone that they have an iPhone, but not necessarily that it's being used to record the conversation. It's like 1 & 1/2 party consent.

Re:iphone, iphone, iphone, iphone...

[MarkGriz]

Why is it important that the recording was performed with this particular device?

It isn't. It's a WIRED-vertisement, and now a slashvertisement as well.

Re:iphone, iphone, iphone, iphone...

[Idiomatick]

A certain chunk of users on /. can't follow a story unless it has the word Apple or i___ in it or the story contains some highly reflective surface. Once in a while they will read something about the economy until they realize that Jobs was referring to reality not their glorious leader. Seriously this story has nothing to do with the iPhone at all.

Re:iphone, iphone, iphone, iphone...

[Idbar]

Interestingly, I recently tried to use the voice recorder on the iPhone to record a conversation I was having with a couple of really annoying DirectTV customer service people (If I can say it here, IT IS THE WORST EVER). Where they asked me to call later due to system problems (knowing that their offices will be closed "later"), and arguing that they will not cancel my order, etc, etc.

Long story short... the voice recorder cannot be activated while you're having a call. Does this article means an update on the iPhone to allow this and properly support complaints on such companies?

Re:iphone, iphone, iphone, iphone...

[DdJ]

Why is it important that the recording was performed with this particular device?

Well, note that they're talking about wiretap laws, but the recording under discussion was done via physical proximity, not via "tapping a wire".

If the recording had been done via an old analog microcasette recorder, would wiretap laws have ever come up? In this case, the recording was done by a phone, even though nobody was recording a phone call. I could see a need for the courts to provide clarity in this case. Because you're recording a conversation with a multipurpose tool that happens to contain a phone, does that make phone-related recording laws kick in or not?

Re:iphone, iphone, iphone, iphone...

[mobby_6kl]

Ok, but how is it relevant that it was an **IPHONE**? My 10 year old Motorola V50 could record calls as well as a regular face to face conversation, and so could my parent's 12 year old cd920/930, not to mention my current WM and Android phones.

Re:iphone, iphone, iphone, iphone...

[darkfire5252]

So for example the government can read your e-mail without a warrant but can't read your postal mail without a warrant;

You should at least recognize when the law has actually understood the technology. Making an analogy between postal mail (communication in a sealed envelope sent privately) and e-mail (communication that takes place by broadcasting the message, in the clear, across many parties) is not appropriate. The appropriate analogy is that the government can read the message you write on the outside of a postcard without a warrant just like they can read your e-mail without a warrant.

Re:iphone, iphone, iphone, iphone...

[srussia]

Why is it important that the recording was performed with this particular device?

As opposed to one's brain, for example?

Re:iphone, iphone, iphone, iphone...

[Shyfer]

The samething with this story. If it is legal to jailbreak an iPhone it is legal to jailbreak any phone, if it is legal to record with an iPhone it is be legal to record with any device as well.

I really hate this kind of thing.

Re:Most states already have an "either party" stat

[Shikaku]

He never said he did. He said he CAN.

One thing;

[MrNemesis]

Who gets to decide what "legitimate" means in this scenario? If it's left up to the judge and jury, surely it's already been admitted as evidence and is therefore legitimate by definition?

Re:One thing;

[Dunbal]

It's already decided in the decision. So long as you don't use it to commit a crime, it's legitimate.

Re:One thing;

[MrNemesis]

Reduntantly recursive recidivism? Now there's an app for that!

Re:One thing;

[mooingyak]

The ruling, from what I understand of the summary, is saying that the act of covert recording in and of itself is not a criminal act. It says nothing about admissibility of said recordings in other cases, merely that you cannot be charged solely for having made a covert recording.

Re:Most states already have an "either party" stat

[spikenerd]

I admin a phone system in Idaho, a one party consent state. Basically, we can record anything without warning, even calls from two-party consent states.

Really? That's not what http://en.wikipedia.org/wiki/Telephone_recording_laws says

"According to California court case Kearney v. Salomon Smith Barney, Inc. (July 13, 2006) if someone from a one party notification state calls into a two party state such as California, then the two party notification law outweighs the one party notification law."

Re:Most states already have an "either party" stat

[Attila Dimedici]

If you called California from TN and recorded the conversation without the consent of the other party, you could be charged under CA law. If you were convicted, CA could request that TN extradite you to CA. I do not know of any case where one state has refused another state's extradition request.

Re:Most states already have an "either party" stat

[Anonymous Coward]

Perhaps. But if your users dial into a two-party state, like California, and record without consent, the recording is probably made illegally.

Re:Most states already have an "either party" stat

[Haffner]

Is this lawyer advice or "I hope the law is reasonable" advice because the latter tends to rarely be correct, sad as that may be.

Re:Most states already have an "either party" stat

[Have Brain Will Rent]

He said calls from two party states not calls to two party states.

It's still illegal in Maryland too

[stevegee58]

Google "Anthony Graber" to see the result of recording audio without the consent of all parties...

Re:It's still illegal in Maryland too

[Anonymous Coward]

To save everyone some time and since the point you brought up is rather important, here's a good link. Somewhere else I saw that is trial is scheduled for October of this year, so we can't actually see the full result. Since the Maryland AG has come out as saying this was not a private conversation (required for the law as written in MD), I think he'll stand a good chance of getting off on that charge, but then again, IANAL.

Re:Most states already have an "either party" stat

[s73v3r]

My understanding is that this ruling didn't cover phone conversations, as the incident in question took place face to face. As in, the guy set his iPhone into Voice Memo mode, and did his business with the other guy.

Feetch!

[HTH NE1]

This has annoyed me for awhile now.

I'm carrying a device that makes phone calls, plays music, has digital memory, and sometimes includes the ability to take voice memos, but it does not include built-in a feature for recording incoming and outgoing phone calls to that memory, all because of differing jurisdictions over whether or not you can record calls to which you're a party.

These things have GPS built-in! Can't you just code the feature so that it complies with your location's laws?! Disable for certain corrupt-government regions, enable for others but regularly beeps, starts with an automated announcement, or runs in stealth mode according to your jurisdiction? Come on!

As a bonus, include the ability to disable cell phones entirely based on GPS location so you no longer have to confiscate them when people enter your military base.

And hey, can we get an exclusion to the wiretapping law for parents and legal guardians of minors so that they can monitor little Jimmy's drug trafficking deals and Jenny's prostitution hook-ups?

Re:Feetch!

[pruss]

You don't want to disable phones based on GPS location instead of confiscating. For what would you do when there is no GPS signal, e.g., indoors? (If you allow the cell-phone use, then the bad guys can use cell phones on a military base after removing the GPS antenna. If you don't allow the cell-phone use, then lots of good guys suffer because they can't make calls indoors.)

This doesn't affect the recording feature suggestion, as that could be done via cell-tower ID.

Re:Feetch!

[tophermeyer]

I'm carrying a device that makes phone calls, plays music, has digital memory, and sometimes includes the ability to take voice memos, but it does not include built-in a feature for recording incoming and outgoing phone calls to that memory, all because of differing jurisdictions over whether or not you can record calls to which you're a party.

Android has a couple of apps that do it. But I can't imagine Apple (or any other operator of a closed OS) would want to make those kinds of apps available.

iWiretap seems like it would be a bad iBusiness decision.

Re:Feetch!

[joeyblades]

As far as recording calls, it's actually much simpler than this. All that is required for recording in two party states is a regular interval beep. Why not make the capability available to all and just insert the beeps?

Now if you want to secretly record, that's different...

A guy once told me that he secretly recorded all of his calls so he could catch people in lies... I told him that he should just tell everyone he was recording and then people would be less likely to lie in the first place. Better to get the truth up front than to try and sort through lies. So to that end, I want an app that inserts regular interval beeps into my conversation so people think they are being recorded.

Re:Feetch!

[Anonymous Coward]

It would affect the recording feature if you live near the border of 2 party state (or international border). You may be using the tower from a different jurisdiction, which may (incorrectly) modify the settings of the phone.

Re:Feetch!

[BitZtream]

As a bonus, include the ability to disable cell phones entirely based on GPS location so you no longer have to confiscate them when people enter your military base.

Because if it was simply a matter of 'turning it off' then you'd just turn your phone off when you entered the base.

The problem is ... they can't trust you to LEAVE IT OFF. You turn off the GPS at the front gate, 10 minutes later turn it on and start sending out info, completely negating the entire reason they don't let you take the phone in, and since you're a spy, you don't give a shit that its 'against the rules'

Re:Feetch!

[Inda]

Strange.

I had a Panasonic over 15 years ago and it could record calls. It was basic and could only record for a number of seconds. I guess now it was for recording spoken addresses and phone numbers. I never used it.

My last Sony could record calls. This was 4 or 5 years ago. Horrible Sony proprietary audio file. I never used it.

My current Samsung, that's a couple of years old, can record calls. A nice mp3, on the memory card, as you'd expect. I've never used it

I've never owned a Nokia, but I guess they record calls too..?

Stop buying phones in the US, I'd say.

Re:Feetch!

[MobyDisk]

It's even stupider than that: it should just come with recording software without limitation. Why should a device be expected to enforce the laws on itself? Do hammers need to check to see if they are hitting something that looks like skin? Do cars check the speed limit signs and automatically disable the gas pedal? Let the user decide if their action is illegal!

Re:Feetch!

[HTH NE1]

Manufacturers worry about being sued as an accessory for enabling a feature that directly assists in commission of a crime. If it is technically feasible that they could take measures to prevent its misuse, that becomes mandatory, else they're being reckless and contributory. Putting it in the EULA as a prohibited use might not protect them at all and serve only to prove they knew it could be used illegally.

It isn't feasible for a hammer to detect skin (let alone stop your arm in mid-swing), a car to read posted speed limits, or a gun to detect a uniform, so there's no manufacturer liability for those actions unless they marketed them for specific illegal uses.

It is however apparently feasible for a photocopier or scanner to recognize paper currency and refuse to operate. I wonder if printed-media publishers are looking into ways to make photocopiers and scanners think their pages are made of money to gain the same automated policing against casual infringement.

Re:Feetch!

[Anonymous Coward]

I've noticed that pretty much all cheap Chinese phones sold on ebay (particularly the ones designed to look like an iphone) have the recording feature.

Re:Feetch!

[lanner]

Can you actually name an android app that records calls, and if so, does it require a rooted phone?

Does anyone have advice on what call recording app for android that they use? What's best, etc?

Re:Feetch!

[chihowa]

FWIW, Acrobits' Softphone for the iPhone does this, but only for SIP calls.

Re:Feetch!

[tophermeyer]

Bluff My Call Mobile and Automatic Call Recorder. Just Google "Android app record call" and you get a few results.

I don't personally use a call recording app so I can't give any advice. My state is a two-party consent state so it would probably be illegal for me./p?

Re:Feetch!

[sco08y]

As far as recording calls, it's actually much simpler than this. All that is required for recording in two party states is a regular interval beep. Why not make the capability available to all and just insert the beeps?

My old Sony E K750 did this. The only time I ever used it, though, was trying to cancel an account. They just refused to talk to me as long as it was recording.

Now if you want to secretly record, that's different...

There are services that you can route your call through to record it. Short of finding the recording, it's impossible to prove you secretly recorded someone. And in any dispute, you can simply take notes from it and claim you wrote them as you were talking.

Re:Feetch!

[MobyDisk]

No question that manufacturers worry about it. But they shouldn't have to. This is a huge problem with the US tort system. (I can't speak for outside the country).

It is not reasonable for manufacturers to be forced to cripple their products because someone might improperly use it. This is why you must agree to a 25-page EULA to buy a song from iTunes.

Re:Feetch!

[MobyDisk]

I know it is bad form to reply again, but let me be even clearer on something:

It isn't feasible for a hammer to detect skin...so there's no manufacturer liability

There should not be any manufacturer liability for illegal use of a product even if it can detect illegal use. This is a fundamental problem with out legal system.

Re:Most states already have an "either party" stat

[tophermeyer]

I think the laws of all three would apply (Feds and both States).

Re:It's still illegal in Illinois, not in Colorado

[schwit1]

http://www.kdvr.com/news/kdvr-second-police-beating-txt,0,3693269.story

Re:Most states already have an "either party" stat

[SoupGuru]

It's not so cut and dried as that. As far as I can tell, there's a whole lot of ambiguity regarding calls between one-party and two-party states. No one really knows how a challenge would shake out. http://www.rcfp.org/taping/interstate.html

This Will Make Mel Gibson Happy

[Tootech]

Well I wonder how Ml will like this, His Lawyers have said that she recorded him and then asked for money and said it was extorsion. She recorded him using her IPhone ( and I am guessing using this app ) when he/she were talking on the phone, she claims she did it cause she felt threatend. Now those tapes were supposed to be sealed but as we all know they " leaked " out. So I wonder if this desicion would efect his case as there seems to be some similarties. I wonder why Apple would let an app like that thru the app store. I also wonder if the app creator or apple could have some culpability if someone took them to task as well as the phone owner for allowing them to record someones conversationwithout there knowledge. I also was under the impression you couldn't recored someone without telling them you are doing so, and if you did it was illegal and not admissable in court...I see a lot more of these cases coming down the pipe I think..

State laws

[jam244]

While this seems like a good thing, it doesn't sound like it overrides more stringent laws in 2-party consent states like Massachusetts. Basically, this doesn't allow blanket covert recording for non-criminal purposes; state-by-state restrictions still apply. Am I wrong?

Re:State laws

[blair1q]

Dunno, but I bet we see appeals from those states to federal courts. Especially for the interstate cases.

Re:Most states already have an "either party" stat

[tomhudson]

If you called California from TN and recorded the conversation without the consent of the other party, you could be charged under CA law. If you were convicted, CA could request that TN extradite you to CA. I do not know of any case where one state has refused another state's extradition request.

Absolutely false - they need to extradite you first, THEN you have a trial. Not going to happen too often. So if you're in a one-party jurisdiction, record away, now that federal law outweighs the 2-party state laws for inter-state communications.

Re:Most states already have an "either party" stat

[SolidAltar]

You are breaking the law.

Re:Most states already have an "either party" stat

[tomhudson]

In my original post, I didn't even mention phone calls, because the question is "do you need the consent of someone else to record a conversation", and the answer is no, not if you're part of the conversation. The other person is talking with you - they have NO reasonable expectation that you will not hear the conversation - you're one of the parties to the conversation. However, what's NOT allowed is for you to hang around two people who are having a conversation that doesn't involve you, and recording it without their consent.

In this case, the person doing the recording was part of the group, so the recording was ruled to be legal, both by the original court and the appeals court.

The law is different for videos. Video recording generally needs the informed consent of ALL parties involved. That's why you see signs in stores warning you about video surveillance - your continuing to stay in the store is implied informed consent. Stores that don't post signage are breaking the law, and the video is inadmissible (something that most people don't know). Same if the signs are too small to be noticed, or posted in an obscure manner.

Never happened to you..that's why you don't get it

[Anonymous Coward]

It has to me, cops lying through their ass in court. Caused me a world of grief, a lot of money and time to get the situation fixed. I was looking at *twenty fucking years* from them outright lying. No, I didn't get beat up, but a friend of mine who was with me got arrested on the bullshit charges, they stuck him in a cell with some huge nasty dude and he got raped, while the laughing pigs stood there and watched! I was in the cell right next to him. Little bitty guy didn't weigh 120, totally innocent. Those fools raided where we were at, demanded "the drugs". There WERE no drugs. They looked for an hour, we kept telling them no drugs. Finally they grabbed some vitamins and some cooking spices and went "Uh ha! Drugs"! Then repeated that crap in court to the judge.

Nope, alleged public servants SHOULD be videoed and taped every time they are doing anything official, cops included, ESPECIALLY cops. I'd like to see every governmental employee everywhere on camera the full time they are on the job. Governmental corruption, lying, thievery and sheer laziness and incompetence is out of control, and now they are making more than the private sector, PLUS they all want top shelf pensions. And now they don't want to be recorded, for "homeland security" bullshit. Fuck 'em. The real "terrorists" in this nation are IN THE GOVERNMENT, and the most crime is CORRUPTION in government.

Still illegal in WA state

[WillAffleckUW]

Our state constitution is very clear on that and many court cases have been won.

So if you're following someone and they happen to go through WA, be aware that any decent lawyer will get the wiretap results invalidated.

wired, wireless, whatever shouldn't matter

[davidwr]

In states that have enforceable do-not-record-without-consent or -without-notice laws, it shouldn't matter if it's an iPhone or a plain old telephone on a land-line, the law should be applied the same.

The question is, are those laws enforceable, and should they be enforceable? Sooner or later the SCOTUS is going to get involved in this, again.

Re:wired, wireless, whatever shouldn't matter

[mdwh2]

Quite - this story makes about as much sense as saying "Court OKs Covert RTX PANASONIC KX-TG2511ET Digital Cordless Phone Audio Recording" - does the brand or kind of device really make a difference?

I am recording this right now

[Drakkenmensch]

Please speak into my iPhone clearly.

Re:Most states already have an "either party" stat

[Attila Dimedici]

I am familiar with the CA law because I worked for someone who claimed to have recorded phone conversations with someone he called in CA on business. The worst part is that he was calling from a "two party consent" state. However, the CA law is written that they can levy a $5000 fine and sentence you to up to a 2 year prison sentence. If you do not appear in court for the case, the judge can issue a summary judgement against you. The law was written with the idea in mind that some people who violated it would be in other states and they wanted to simplify penalizing those that did so. This type of law is why so many businesses that do a lot of business with end consumers start the phone call with a recording that says something along the lines of "This call may be recorded for quality control purposes." Courts in various states have ruled that continuing the conversation after such a notification constitutes consent to be recorded.

Re:Most states already have an "either party" stat

[Anonymous Coward]

So, "let me call you back later" has legal implications? Interesting.

Re:Most states already have an "either party" stat

[BitZtream]

And calling a two-party state from a one-party state does mean you need to follow the laws of both states.

No it doesn't.

I won't be extradited to Florida for recording a conversation on a phone call between North Carolina and Florida without the consent of those in Florida, I assure you.

Perhaps you shouldn't try to play lawyer. Its an interstate issue at that point.

Florida's laws don't apply to me until I'm in Florida, just like NC laws don't apply to Floridians until they come to NC.

Re:Most states already have an "either party" stat

[BitZtream]

Yes, because the rest of the world gives a flying fuck what the idiots in California do ... in case you haven't noticed, most of the rest of the country looks at California as 'how to do it ... the wrong way'

Let me know when someone else cares what California says.

Federal and other states don't work that way. I assure you my state isn't going to take me into custudy and ship me off to you for the charge. The feds aren't going to get involved either. So great, California thinks they can tell me what to do ... good for them, I'm not visiting any time soon, and by the time I do you won't be able to pay for your police force anyway so its not like you're going to have the money to arrest and prosecute me for violating your privacy ... on the other hand, you've probably been caught committing a far more damaging crime in the phone conversation.

Its good that you think your corrupted politicians coming up with ways to protect themselves from getting caught is a good idea. The rest of us really don't care.

Ringback...

[BAlGaInTl]

Finally... A real use for ringback tones with your provider. "This call may be monitored..."

illegal Illinois - bad state, no cookie

[Anonymous Coward]

How dare that corrupt state of Illinois dare create a law in conflict with the federal governments supremacy in interstate commerce and recording!

Let me tell a reason

[Ilgaz]

There is no way to legally or after recent decision, practically add extra security to iphone.

On Symbian, Windows Mobile and I heard, Android, there are antiviruses, full packages which includes application firewall and a decent ip firewall.

So, you can tell owners of above devices `if you are that paranoid, you shouldn`t buy a smart phone. Anyway, head to Kaspersky or F-Secure and cough some money`

With App store policy, Apple also made it impossible to add additional security layer to device.

Re:Most states already have an "either party" stat

[OverlordQ]

That was tried in the California Supreme Court, not in any sort of Federal Court, so as much as they want, people outside of California dont have to listen to them.

Re:Most states already have an "either party" stat

[Anonymous Coward]

Really? That's not what http://en.wikipedia.org/wiki/Telephone_recording_laws says

I can't wait for the day a defense attorney gives a wiki link as evidence.

Re:Most states already have an "either party" stat

[DarkKnightRadick]

If that is the case, one could make an argument that such restrictions were unconstitutional OR could be argued that laws restricting would not be in the best interests of either party.

Makes sense

[nickdwaters]

Why should a phone call be treated any differently than a letter or email? Arizona places no restriction on recording phone calls. One may do it with or without consent of the recorded parties. In my opinion, this makes perfect sense. Assuming positive intent, it helps a person remember details of a conversation they may not recall. I for one cannot recall precisely all details. Perhaps it is a "handicap" of mine. I challenge anyone to recall with perfection a recorded call, including tone of voice, pace, accent, and finally verbiage. If you have something to hide that would make you embarrassed if it appeared in the newspaper, maybe it shouldn't be said at all.

Re:Most states already have an "either party" stat

[bleh-of-the-huns]

This has been hashed out all over the intarwebs....

The state law of the entity or individual you are calling is the one that needs to be followed, so if you are a 1 party notification, and you call someone in a 2 party notification state, you have to notify them that you are recording the call.

However, one thing that seems to go back and forth, and no one seems to agree on, is that when you call an entity, say customer service at a bank, you get the recording that your call is being recorded, the person initiating the call already knows they are being recorded, and you are being notified as well that the call is being recorded, do you have to notify the other individual that you are recording the call, since all parties involved know its being recorded, the only difference is where it is being recorded.

Many places have policies that state they terminate the call if they are notified that they are being recorded.. kind of a double standard there.

No, it isn't still illegal in Illinois

[WebManWalking]

Article VI of the US Constitution specifies that the Constitution and laws of the federal government are the supreme law of the land, and the state judges are bound to rule that way. Illinois ratified the US Constitution, so Illinois has agreed to those terms.

iPhone can't ... but N900 can

[KWTm]

Long story short... the voice recorder cannot be activated while you're having a call. Does this article means an update on the iPhone to allow this and properly support complaints on such companies?

I am not familiar with the iPhone. You refer to "the" voice recorder; is there only one, then? It comes with a voice recorder? Presumably you can install (or program) your own voice recorder which can be activated while having a call, no?

I ask this because my N900 can record a call with a voice recorder app.

Please correct me if I have any misconceptions.

Droid

[gabrielex]

So what if the recording is made with a Droid? Racists!!! ;-)

Re:Most states already have an "either party" stat

[tomhudson]

Riiight - and California is SO flush with money that they're going to spend $10k to $20k to extradite someone so that they can appear for trial. I don't think so - and unless you're notified that they're charging you, it's all unconstitutional. So they notify you, you go to your local police station and "turn yourself in" - actually, you say "I'm here, I'm willing to appear in court, but I'm not paying the travel costs. I demand both extradition and formal discovery of all evidence." The cops will say "We don't want either the paperwork or the expense - we'll call them and see if they'll foot the bill." And since California won't spend $20k to collect $5k, you can demand the charges be dropped.

It's not like anyone's going to California any more anyway - the state has been losing population for the last few years, and that's not about to change this decade.

Re:Most states already have an "either party" stat

[sco08y]

Really? That's not what http://en.wikipedia.org/wiki/Telephone_recording_laws says

I can't wait for the day a defense attorney gives a wiki link as evidence.

Hmmm... Would you count a plaintiff's attorney submitting an article?

The Transparent Society by David Brin

[Paul Fernhout]

Yes, "The Light of Other Days" was a great book in terms of thinking about, by analogy, privacy in the compuyter age. See also David Brin's non-fiction book, "The Transparent Society" on the theme you raise of symmetry and asymmetry in recording.
    http://www.davidbrin.com/transparent.htm

Still illegal for Android?

[mdwh2]

I wonder if it's still illegal for Android and Symbian too, since it's only talking about the Iphone...

(Well, I doubt it, of course. I know Slashdot didn't have it's daily Iphone story today, but do we need to put in a product placement for the Iphone(TM) again, when we have a perfectly good generic term, "phone"?)

Re:Most states already have an "either party" stat

[Anonymous Coward]

Tell that to Max Hardcore.