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

[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

[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

[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

[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

[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]

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

[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

[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]

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

[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

[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

[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]

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

[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

[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

[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

[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]

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

[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.

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".

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.

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: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!

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.

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...

[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...

[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: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: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

[Have Brain Will Rent]

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

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.

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!

[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!

[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: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.

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.

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.