Consent and its limits

August 1, 2012

Generally, you may record, film, broadcast or amplify any conversation where all the parties to it consent. It is always legal to tape or film a face-to-face interview when your recorder or camera is in plain view. The consent of all parties is presumed in these instances.

The use of hidden cameras is only covered by the wiretap and eavesdropping laws if the camera also records an audio track. However, a number of states have adopted laws specifically banning the use of video and still cameras where the subject has an expectation of privacy although some of the laws are much more specific. Maryland’s law, for example, bans the use of hidden cameras in bathrooms and dressing rooms.

Whether using an audiotape recorder or a hidden camera, journalists need to know about the limits to their use.

Criminal purpose. Federal law requires only one-party consent to the recording and disclosure of a telephone conversation, but explicitly does not protect the taping if it is done for a criminal or tortious purpose. Many states have similar exceptions. Employees of a “psychic hotline” who were secretly recorded by an undercover reporter working for “Primetime Live” sued ABC for violation of the federal wiretapping statute, arguing that the taping was done for the illegal purposes of invading the employees’ privacy. The federal appellate court in Pasadena (9th Cir.) affirmed the dismissal of the employees’ claim in September 1999. According to the court, an otherwise legal taping that is done to achieve a “further impropriety, such as blackmail,” becomes a violation of the law. But even if ABC’s means of taping were illegal because the act violated the employee’s privacy, that does not make the taping illegal under the wiretap act, the court held. Because the employees “produced no probative evidence that ABC had an illegal or tortious purpose” when it made the tape, the reporter did not violate the federal statute. (Sussman v. American Broadcasting Co.)

In another case, an ophthalmologist who agreed to be interviewed for “Primetime Live” sued ABC under the federal wiretapping statute for videotaping consultations between the doctor and individuals posing as patients who were equipped with hidden cameras. The U.S. Court of Appeals in Chicago (7th Cir.) rejected the doctor’s wiretapping claim because the federal statute requires only one-party consent, and the undercover patients had consented to the taping. The court further held that the network did not send the testers o the doctor for the purpose of defaming the doctor, and that therefore ABC did not engage in the taping for a criminal or tortious purpose. (Desnick v. ABC)

These cases make two points journalists should remember when they think about taping a conversation: consent requirements under state and federal laws must always be met, and even then taping can be illegal if it is done in furtherance of a crime.

Trespass. A party whose conversation is surreptitiously recorded, whether with a tape recorder or a hidden camera, may also raise such newsgathering claims as trespass and intrusion, examining the issue of the scope of a party’s consent. For example, in Desnick, the doctor sued the network for trespass because he did not know of the taping. But the court stated that consent to an entry is “often given legal effect” even though the entrant “has intentions that if known to the owner of the property would cause him ... to revoke his consent.”

On the other hand, the U.S. Court of Appeals in Richmond (4th Cir.) ruled in October 1999 that ABC reporters—again with “Primetime Live”—who obtained jobs with a Food Lion grocery store and therefore had legal permission to be in nonpublic areas of the store nonetheless exceeded the scope of that permission by using hidden cameras on the job. Food Lion had not consented to their presence for the purpose of recording footage that would be televised, the court held, and therefore the reporters’ presence in the nonpublic areas constituted trespass.

However, Food Lion could not prove it was damaged by the trespass, the court found. Damage to its reputation caused by the resulting story was due to the facts reported in the story that alarmed consumers, not due to the trespass, the court held. As a result, Food Lion was only able to recover nominal damages of one dollar for the trespass claim. (Food Lion Inc. v. Capital Cities/ABC Inc.)

Expectations of privacy. The other issue that courts address in evaluating these cases is whether or not the plaintiffs had a reasonable expectation of privacy in the area where the filming took place. In Desnick, the court held that the doctor did not have such an expectation of privacy in an area where he brought his patients.

A medical testing lab in Arizona sued ABC over another “Primetime Live” segment, which focused on error rates among laboratories that analyze women’s Pap smears for cancer. Producers from ABC posed as lab technicians and filmed the inside of the lab with a hidden camera. The U.S. Court of Appeals in San Francisco (9th Cir.) dismissed the lab’s privacy claim. The undercover journalists filmed portions of the lab that were open to the public and were escorted by the lab’s owners into a conference room. The court said the lab and its workers did not have a reasonable expectation of privacy, because the areas filmed were open to the journalists, and none of the discussions caught on tape were of a personal nature. (Medical Laboratory Management Consultants v. ABC, Inc.)

In yet another case against ABC, a court ruled that police officers who were secretly videotaped while they were searching a car did not have a claim under New Jersey’s wiretapping law. The officers had no reasonable expectation of privacy in a conversation that occurred in a car on the shoulder of a busy highway, the New Jersey appeals court ruled. Moreover, police officers have a diminished expectation of privacy because they hold a position of trust. Thus, the taping, done for a show on racial profiling, was legal. (Hornberger v. ABC, Inc.)

In California, when conservative activists James O’Keefe III and Hanna Giles secretly recorded an ACORN employee in an ACORN office for the purpose of expose journalism, the Supreme Court of California rejected a First Amendment challenge to the expectations of privacy standard created under California’s wiretapping statute. Under California law, tape recording can be found unlawful when it violates “objectively reasonable expectations” that a conversation will not be recorded. Notably, the reporters had created the impression with the ACORN employee whom they recorded that they were seeking a confidential discussion. The court held that the privacy standard of California’s wiretapping law did not violate the First Amendment by working a chilling effect on expose journalism, as defendant O’Keefe argued. Instead, the court found O’Keefe and Giles could both be charged under the California wiretapping law for their surreptitious recording. (Vera v. O’Keefe)

Filming individuals in their homes is always a more risky venture. In a Minnesota case, a veterinarian making a house call obtained permission to bring a student with him, but failed to inform the homeowners that the student was an employee of a television station. The student surreptitiously videotaped the doctor’s treatment of the family cat in their home. The state Court of Appeals upheld the trespass claim because, unlike cases where the taping took place in an office, the family had a reasonable expectation of privacy in their home. (Copeland v. Hubbard Broadcasting, Inc.)

But in Alvarado v. KOB-TV, the U.S. Court of Appeals in Denver (10th Cir.) ruled that eporters did not intrude upon the seclusion of undercover officers in filming them when they came to the doors of their residences to decline to talk to news media, because this conduct would not be highly offensive to a “reasonable person.”

Journalists should be aware that privacy standards vary state by state, and that these cases serve as general examples to how states view reasonable expectations of privacy when taping.

Other consent issues. The validity of consent has also been upheld where the party was mistaken about the terms. In a California case, a woman sued CBS for trespass and intrusion when a camera crew accompanied a crisis intervention team into her home in response to a domestic violence call. The woman conceded that she had consented to the videotaping, but stated that she was led to believe that the camera crew was affiliated with the district attorney’s office. The court held that the state statutes governing trespass and intrusion did not require that the individual’s consent be “knowing or meaningful,” even if the consent was “fraudulently induced,” and that the camera crew had acted within the scope of the woman’s consent. (Baugh v. CBS)

In recent years the widespread availability of handheld cell phone cameras and other digital recording devices have tested the limits of the freedom to tape when a device is in plain view. Use of these devices by reporters or citizen journalists to record police — even when they are thought to be in plain view — may carry the risk of arrest. For example, in Massachusetts, an all-party consent state, individuals have been arrested when using publicly visible digital recording devices to record police. Massachusetts recording law makes any secretive recording unlawful, and arrests have been made of those recording the police with devices such as cell phone cameras, under the argument that these recordings were secretive. In 2007, Simon Glik was arrested under the Massachusetts wiretapping law for openly recording with his cell phone what he believed to be an unlawful arrest on the Boston Common. Though the charges were dropped and the U.S. Court of Appeals in Boston (1st Cir.) later affirmed Glik’s First Amendment right to record police in public (Glik v. Cuniffe), recording in Massachusetts may still carry risks.

Illinois is another all-party consent state whose broad eavesdropping statute might be used against journalists recording police activity with devices in plain view. The state’s eavesdropping statute bans any taping without the consent of all parties, regardless of whether there is an expectation of privacy. In a recent case, the American Civil Liberties Union of Illinois successfully challenged the law and won a decision which halted the statute being applied against the ACLU’s recording of official police activity, when that police activity is audible and public. (ACLU v. Alvarez) However, the Illinois statute, which the Alvarez court described as “the broadest of its kind,” has not been overturned. The risk of being charged under the statute may still exist for reporters or citizen journalists who record police activity in Illinois, even when they use recording devices that are in plain view.