Humanities desk
< August 22	<< Jul \| August \| Sep >>	Current desk >

Welcome to the Wikipedia Humanities Reference Desk Archives
The page you are currently viewing is a transcluded archive page. While you can leave answers for any questions shown below, please ask new questions on one of the current reference desk pages.

August 23

Legality of secretly recording private conversations

I looked in vain on Wikipedia for the legality of recording private conversations using a covert recording device and then making them public. There is an article on Telephone call recording laws, but what if the conversation is not by phone, but one party is carrying a wire? (The article on Covert listening devices has a section on UK laws, with the mysterious sentence "Individuals may only use listening or recording devices within reasonable privacy laws for legitimate security and safety reasons." As opposed to unreasonable privacy laws that forbid such use?) --Lambiam 07:29, 23 August 2020 (UTC)[reply]

The laws could vary from place to place. And beyond that, it depends what you do with it. ←Baseball Bugs ^{What's up, Doc?} carrots→ 11:08, 23 August 2020 (UTC)[reply]

Of course, but for many issues (Age of consent, Blasphemy, Capital punishment, Driving under the influence, ...) Wikipedia provides detailed information on relevant laws by jurisdiction. The (specified) use is "making them public". --Lambiam 11:31, 23 August 2020 (UTC)[reply]

There's not much there, but it gets mentioned in the article on legality of recording by civilians (subsection 'Voice recording'). Another related article: sousveillance. I couldn't find what you are looking for either. ---Sluzzelin talk 12:40, 23 August 2020 (UTC)[reply]

It can be very complex. In the U.S. state of Illinois some years ago, for example, there were instances of individuals recording video of police encounters being prosecuted for wiretapping because of the way the state anti-wiretapping law was written which also technically prohibited the covert recording of audio generally.

Specifically answering your question about the article on U.K. law, I suspect that mangled sentence may have been intended to read something like "may only make reasonable use of listening or recording devices for legitimate security and safety reasons". The term "reasonable" is often a term of art in the common law, frequently shorthand for "objectively reasonable", which means that the accused's mere assertion that he believed the use was reasonable isn't enough. That sentence, by the way, was inserted in 2014 by an account that didn't seem to stick around, and which I suspect from the username (ETBlogs) and other contribs was intended to promote or link to a blog on electronic surveillance equipment. 199.66.69.67 (talk) 19:15, 23 August 2020 (UTC)[reply]

There is also the legal concept of "reasonable expectation of privacy", which however arose in US jurisprudence. --Lambiam 09:18, 24 August 2020 (UTC)[reply]

For its (lack of) applicability to the UK, see this article. --Lambiam 09:33, 24 August 2020 (UTC)[reply]

This question was obviously inspired by the Mary Trump tapes. The full Washington Post story is here (the original is paywalled but it comes up for me on google cache via this link). The story links to this site which says that in the state of New York you only need the consent of one person, which in this case was Mary Trump. I assume the conversation took place in the state of New York, although that's not made clear in the WP story. --Viennese Waltz 09:43, 24 August 2020 (UTC)[reply]

It depends on the state. Some have one-party consent (ok to record as long as one participant of the conversation knows about it) and others have two-party consent (both have to know). Linda Tripp got in trouble for one-party recording in a two-party consent state. 2601:648:8202:96B0:0:0:0:DDAF (talk) 03:33, 25 August 2020 (UTC)[reply]

Not in nearly as much trouble as Clinton did. ←Baseball Bugs ^{What's up, Doc?} carrots→ 14:50, 25 August 2020 (UTC)[reply]

AFAICT, the Linda Tripp case seems to involve phone calls, and the two-party consent likewise links to our article on phone calls which was already linked by the OP. In some cases the laws which deal with phone calls may also deal with recording in person conversations e.g. the New York one, but I don't think they always do which seems to be one of the OP's question. For example, since the Romanian case comes under the telecommunications act, I wouldn't be surprised if it doesn't cover in person conversations. (To be clear, I'm not saying that Linda Tripp would have been fine if her recordings of in person conversations. But rather since it specifically involved phone calls, and the OP appears to be wondering about recording private conversations when the phone isn't involved, it doesn't seem to clearly address the question.)

(I was wondering about the situation in Indian as well, but I strongly suspect our article is misleading. The law and the court case seems to relate to when the government or some other third party can intercept private telecommunications without either parties knowledge. It's not clear to me it applies when even one of the parties is the one who records, let alone if all parties are aware and consent. Indeed considering that many call centres operate out of India, and I'm fairly sure some of these say they record the conversation for training and quality control purposes, with the unspoken reason that they also want a record in case there is any future dispute. While obviously a lot of things ignore the law e.g. scam call centres, it would be a bit weird if recording phone calls even with all part consent is illegal under Indian law.)

I can say that in the NZ case AFAIK the law applies to any private conversations not simply those over the phone. (I assume the AFAIK makes it clear none of this is legal advice.) If you look at the law [1] it seems it's fairly generic. And the Privacy Act is even more generic. For further information on the situation in NZ especially regarding the privacy act see e.g. [2] [3] [4] [5] [6]. (You can see even some of those sources mostly deal with phone calls even though I'm fairly sure the same principles apply to any private communications.) As those sources note, the Privacy Act (in NZ) often doesn't come into play for individuals doing it for personal reasons, but it can. And for "agencies" the privacy act can require notification of the recording to all parties.

But as those sources hint at, even if it legal to record the conversation, this doesn't mean you can do whatever you want with it after. For example, posting such a legal recording online could still be a problem. Even sharing it with another person could be a problem in some circumstances.The issue of posting it online comes up much more in CCTV cases e.g. [7] [8] Our article on telephone call recording also mentions other laws in other countries which I suspect would likewise probably apply with records of any private conversations although since it's targeted at phone calls it's rarely clear on that point.

Nil Einne (talk) 14:01, 25 August 2020 (UTC)[reply]

Indeed, the issue of whether a wiretapping law applies to in-person recording is very much jurisdiction-dependent, not only in terms of what the statute actually says, but in terms of how the law is applied in practice. As I often tell people, simply because a law doesn't clearly cover something, or even if it's clear that a law does not cover something, does not mean that you won't get arrested or even prosecuted under that inapplicable law. This is one of those things where the tired refrain of "ask a lawyer" really is meaningful and the best advice.

As a fun aside, perhaps to make everyone think a little harder, suppose you're dealing with a conversation happening in two different jurisdictions. Which law applies? Or worse, suppose you have the conversants in two different jurisdictions from one another, and the recording happens in a third jurisdiction. Most of this is more or less only realistic for telephone conversations, but it's entirely possible to craft fact patterns involving hypothetical jurisdictions. Perhaps a conversation happening at a Four Corners-like place, or even more complex, a quadripoint involving multiple sovereign nations. I've had the pleasure of researching these frustrating questions before (thankfully not for a client), and there really is no clear answer in most cases. But in practice most people will follow the rule of the most-restrictive jurisdiction out of self-protection rather than that being the correct legal answer. 199.66.69.67 (talk) 18:16, 25 August 2020 (UTC)[reply]