A Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and D.C.

• Introduction

• State-by-state guide

• Tape-recording laws
  at a glance

• Consent and its limits

• Interstate phone calls

• Possession and
  publication

• The FCC’s role

• Cellular & cordless calls

• Citations to cases

Possession and publication

Journalists should be aware that wiretap laws raise issues beyond just whether they have met consent requirements. The federal law and many state laws explicitly make it illegal to possess — and particularly to publish — the contents of an illegal wiretap, even if it is made by someone else. Some states that allow recordings make the distribution or publication of those otherwise legal recordings a crime.

The 1986 Electronic Communications Privacy Act (amending the federal wiretap law) makes it illegal to possess or divulge the contents of any illegally intercepted communication.

The U.S. Supreme Court ruled in May 2001 that several media defendants could not be held liable for damages under the federal statute for publishing and broadcasting information obtained through an illegal interception of a private conversation.

The case arose from a cell-phone conversation in Pennsylvania about contract negotiations for local school teachers. During the conversation, Anthony Kane Jr., president of the local teachers’ union, told Gloria Bartnicki, a union negotiator, that if teachers’ demands were not met, “we’re gonna have to go to their, their homes . . . to blow off their front porches, we’ll have to do some work on some of those guys.” While Bartnicki and Kane spoke, an unknown person illegally intercepted the call, and a tape recording was left in the mailbox of a local association leader. The association leader gave a copy of the tape to two radio talk show hosts, who broadcast the tape as a part of a news show. Local television stations also aired the tape, and newspapers published transcripts of the conversation.

Bartnicki and Kane sued some of the stations and newspapers that had disclosed the contents of the tape. The case made its way to the Supreme Court, which found that First Amendment principles trumped the privacy concerns of the union leaders.

In ruling that disclosure of a matter in the public interest outweighed claims of privacy, the majority of the Court supported “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.” The majority explained that those who participate in public affairs have a diminished expectation of privacy, especially when they propose to carry out wrongful conduct.

The case was a significant win for the media, but its implications for newsgatherers are not yet entirely clear. The Court’s decision was premised on three factors: the media did not engage in or encourage the illegal recording, the topic of the intercepted conversation was of public concern, and the conversation involved proposed criminal acts. The Court did not indicate whether disclosure by the media under different circumstances would be considered legal. (Bartnicki v. Vopper)

A D.C. Court of Appeals case involving two U.S. Congressmen distinguished the facts in its case from those in Bartnicki, because the people who recorded and disclosed the conversations in that case were private citizens. In 1996, Rep. James McDermott (D-Wash.) released to the media a recording of a phone call between Rep. John Boehner (R-Ohio) and other House Republicans about the ethics problems facing then-House Speaker Newt Gingrich. A Florida couple who illegally taped the conversation gave the tape to McDermott. Boehner sued McDermott, alleging the release violated the federal wiretap law because McDermott disclosed information he knew was obtained illegally.

The lawsuit went to the Supreme Court at the same time as the Bartnicki case. Rather than resolve the case the Court ordered that the U.S. Court of Appeals in Washington (D.C. Cir.) re-evaluate Boehner’s case in light of its Bartnicki decision. The court of appeals allowed Boehner to amend his lawsuit and argue it again.

The court’s opinion did not shed light on whether a taped conversation that does not involve violence may be disclosed – the court decided the issue based on the fact that McDermott was a member of the House Ethics Committee, and those who accept positions of trust involving a duty not to disclose information, such as judges or government officials in sensitive confidential positions, may have special duties of non-disclosure. Here, members of the Ethics Committee were forbidden to reveal information “relating to an investigation to any person or organization outside the Committee unless authorized by the Committee.” When Representative McDermott became a member of the Ethics Committee, he voluntarily accepted a duty of confidentiality that covered his receipt and handling of the Martins’ illegal recording. He therefore had no First Amendment right to disclose the tape to the media.

However, the U.S. Court of Appeals for the First Circuit in Massachusetts decided in 2007’s Jean v. Massachusetts State Police that the First Amendment prevented Massachusetts law enforcement officials from interfering with an individual’s Internet posting of an audio and video recording of an arrest and warrantless search of a private residence, even though the poster had reason to know at the time she accepted the recording that it was illegally recorded.

The Court applied Bartnicki and determined that the state’s interest in protecting the privacy of its citizens — encouraging uninhibited exchange of ideas and information among private parties and avoiding suspicion that one’s speech is being monitored by a stranger — was less compelling in this case than in Bartnicki, in which it was not given much weight.

The Court of Appeals said that in Jean, when the identity of the interceptor is known, there is even less justification for punishing a subsequent publisher than there was in Bartnicki, and the public interest in publication of truthful information of public concern was equally as strong. The Jean court also cited the concurring opinion in Boehner, stating that if Rep. McDermott had been a private citizen, like Jean, the court would have concluded that his disclosure of the tape was subject to First Amendment protection regardless of the fact that he received the tape directly from the Florida couple, who recorded it illegally.