March 22, 2019 Substantive Law

Expectations of Privacy in Audio and Video Recording in a Family Law Context

By Rose L. Hubbard

Reprinted with permission from Family Advocate, Winter 2019 (41:3). ©2019 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Several years ago, I was traveling with my brother and his family to a funeral. He and I were having a vigorous discussion over whether it was appropriate for him to try to program his GPS while driving on winding mountain roads. After he put his hands back on the steering wheel, his preteen daughter began playing an audio-video recording of our discussion. He thought she was the cleverest girl in the world to record an adult conversation without the adults knowing she was doing it. I was not so amused. I made it very clear to my brother that the recording was illegal, and beyond that, it was a poor example of appropriate behavior, both on his part, for thinking it was clever, and on his daughter’s part, for doing it. His response was simple: get with the program, Rose, this is the age of the cellphone and tablet, where everyone is recording everything all the time. It’s just the way the world works.

He has a point. I have heard that our images are recorded at stores, at traffic lights, and in personal pictures upwards of fifty times a day. Social media has funny, sad, outrageous videos of people doing stupid things when they didn’t know they were being recorded. Lawsuits are won and lost when there is evidence created by someone whipping out a cellphone and recording an accident or a police arrest. We are alternatively hypervigilant about our data privacy and blasé about our personal image and audio privacy.

Both Federal and State Laws Apply

My brother was also wrong. Despite the argument that “everybody does it,” it is still illegal to record audio unless certain conditions are met. It’s difficult to know what those conditions are because both federal and state laws apply, and the state laws vary. The Federal Wiretap Act creates civil and criminal liability for using a device to intentionally intercept wire, oral, electronic, and other kinds of communications. Under the federal law, it is not illegal to “intercept” or record a wire, oral, or electronic communication if one party to the communication has given consent. Thirty-eight states have adopted the “one-party consent” rule, and so, if one person to the communication consents, it is not illegal to record the communication.

There are also nuances to different states’ laws. Hawaii, for example, is a one-party-consent rule state, unless the recording device is in a private place. Massachusetts bans all “secret” recordings, rather than requiring consent. Eleven states (California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington) require all parties in a communication to consent to the recording of the communication.

Which State Law Controls?

There is also a question as to which state law controls. If you are on your cellphone that originated in California, where you used to live, but you made the call from Oregon and are calling someone in Washington, which state law applies to the recording? If the phone call crosses state lines, does that make it subject to federal law? Or is it subject to federal and state law? In California, all parties must give their consent to be recorded, and if the caller in a one-party state is in conversation with someone in California, the more restrictive state law applies. Which puts you into a factual and legal bind: do you know where the person you are calling and recording is located? And do you know the law of that state and how it compares to your own? More important, where are you litigating and what are the “choice of law” rules in that state?

The Definition of Consent

Another significant issue arises out of the definition of “consent.” In some states, consent is given if all parties are aware that the conversation is being recorded—consent is implied. In other states, consent must be affirmatively given. And where does the recording take place? If the recording takes place in your home and you consent to the recording, that is not illegal in states such as Oregon, even if you are not one of the parties being recorded. That’s the whole idea of the “nanny cams,” where you can set up audio-video equipment in your own home even if it is recording other people. There can also be a distinction between audio and video recordings. In some states, what is regulated is audio recordings. That’s why you have traffic (video) cams at most stoplights and several in every store parking lot.

Is the Case Civil or Criminal?

Laws governing audio and video recordings can also differ depending upon whether a case is civil or criminal. For example, in Connecticut, in a criminal case for illegal recording, it is a one-party consent state. If it is a civil case where you are suing for damages relating to the recording in Connecticut, it is a two-party consent state. Evidentiary rules may additionally distinguish between evidence gathered in criminal versus civil cases. A recording may not be admissible in a criminal prosecution for illegal recording but may be admissible in a civil case for illegal recording. If you are being prosecuted for an assault and have an audio-video recording you are trying to bring into evidence, whether it is allowed or not may be controlled by the rules of evidence—or they may be controlled by the recording laws.

Reasonable Expectations of Privacy

This is all about what “expectations of privacy” you should reasonably be expected to have. The Federal Wiretap Act promises a “reasonable expectation of privacy.” It assumes that you are in a location and in a circumstance where you have a reasonable expectation of privacy. This is why most social media posts are not illegal. The events being recorded are in public, and you don’t have a reasonable expectation of privacy in a public place. If you are within your own home, there is a strong expectation of privacy. However, there are still gray areas. For example, a privately owned business office may seem like a private location, but some states, such as Florida, do not recognize an absolute right to privacy in a party’s office or place of business. Even in a public place, however, there still might be an expectation of privacy if you are having a conversation with another person. That’s where the whole issue of whether one party or all parties must consent to the recording comes in.

Scenarios

What does all of this mean in a family law context? Whether you are an attorney advising your client or you are someone who wants to understand what the laws are before you take action, you need to know the laws—or the lack of clarity in the laws—or you risk taking action that is illegal.

Your client suspects her teenage son is buying illegal drugs, so she puts a recording device on the home phone to monitor his calls without his consent. That’s okay, right? It’s for the son’s own good. But what if your client wants to record the son’s cellphone calls and arranges with the cellphone company to record all conversations. After all, the client pays for the phone, and it’s for the son’s own good, right? But what if your client’s son is late for curfew, and she goes out looking for him. She sees him talking to a person of questionable quality. No problem. She whips out her cellphone, that wonderful smartphone that has audio- and video-recording capacity, and starts recording the son and that person of questionable quality. She brings the recording to you as her attorney. You can’t hear what they are saying at first, and the son can’t see his mom, but your client moves closer and closer, video recording . . . and now she is starting to pick up audio. Sure enough, the moment she feared is happening. Her son hands that questionable person money and then takes a small bag of white powder in exchange. It’s still all good, right? It’s for his own good.

Maybe not.

Or maybe your client is getting a divorce. He is standing outside the house, and his wife opens the door and gives a very intimate embrace to the appliance repair man, far more intimate than what the client has received in a long time. He lifts up his phone, flips on the video recorder, and records the whole steamy conversation and the nonverbal communication. That’s what those phones are for, right? Anyone who visits YouTube will see video recordings of funny scenes in which the other person doesn’t know he or she is being recorded. Everybody does it, so it must be legal, right?

Maybe not.

Your client is recording the telephone call of his child when the child is talking to the other parent, and the client hears the other parent encouraging the child to not obey the rules of your client’s household. Your client later confronts the other parent with the evidence of the recording, and the other parent is outraged that your client intruded on a private conversation. Your client is in hot water, right?

Maybe not.

If the client owns and pays for the son’s phone, your client probably can put a recording device on the phone if it is a one-party consent state. If the phone is in the client’s house, she has the authority to put a recording device on her own phone. She can probably record the video of the interaction between her son on the corner, but probably cannot record the audio.

As for recording the telephone call of your client’s child with the other parent, it probably isn’t illegal in a civil damages context unless the recorder lives in a two-party consent state or there is a choice of laws question and the more restrictive state laws apply. However, offering it as evidence in a divorce trial is probably not illegal—but it probably violates a court order. Many parenting plans have language that states that neither parent will monitor or interfere with the conversation of the other parent and the child, and that requirement would be enforceable by the court. This is not an absolute, however. For example, if your client is hearing from his or her child that the other parent is being verbally abusive or threatening and your client is seeking to modify parenting time, getting evidence that the verbal abuse is happening would be very helpful to the judge in making a decision without having to bring the child into court to testify against the other parent.

The Tough Questions

Then the tough question comes up for the attorney. Your client has brought you all of these recordings, and they range from voicemail messages to pickup and drop-off scenes to recordings with the other parent and recordings of conversations with the other parent and the child. The first thing you need to do is determine whether these recordings are legal within your state and whether another state law might be implicated. If any of the recordings are illegal, you need to immediately tell your client to stop the recordings. If any of the recordings are legal but would not be considered appropriate by a court, you need to have that conversation with your client to the effect of, a judge isn’t going to view it favorably if your client has dozens of recordings.

The second question is whether you are required to turn over the recordings as part of discovery. My standard request for production asks for recordings made between spouses or between parent and child, including all text messages and emails. Beyond the obvious question of whether the request for hundreds of records is objectionable because the request is burdensome, if the recordings are legal, they need to be turned over. If the recordings are illegal, you are in the position of stating that turning over recordings might violate your client’s Fifth Amendment right against self-incrimination, which essentially admits that the records exist.

What Can and Should Your Clients Do?

Now that you are thoroughly confused as to how to guide your clients so that they are absolutely certain about what they can and can’t legally record, what can they do in a family law context, and more important, what should they do?

Most importantly, you and your client need to have a heightened sense of awareness about being recorded. Just as your client should assume that any emails written to the spouse might end up in front of a judge, your client should assume that every phone call he or she has with the spouse might end up in front of a judge—and very possibly out of context.

However, just because your client should have a heightened sense of awareness about being recorded does not mean that your client should feel free to record everyone else if you are in a one-party consent state. Recording might be not criminal, and it might not be the basis for a civil lawsuit, but that does not mean that a family law judge will view the recordings favorably. Years ago, when answering machines were the technology of the day, I had a client who came to court and, when asked a question as to how he remembered what was said, dumped a gallon size bag of minidiscs on the table, proudly announcing that he had all of the voicemail messages and all of his conversations with his wife recorded. He was certain that what was on the tapes had to be convincing proof. The judge was convinced, all right, but it had nothing to do with the content of the messages, but rather with the character of a parent who would record all conversations with his former spouse without her knowledge.

A judge might decide not to allow recordings as evidence if there is any question as to whether the recordings are hearsay. A judge also might not allow the recordings because there is a question as to whether the recordings are “complete” and unaltered, which is almost impossible to tell unless you have a telecommunications expert examine the recordings. More likely, however, a judge will allow recordings to come into evidence but he or she will disfavor the recordings of the other spouse, especially recordings made of the other spouse and the children, because of the conflict created for the children in the middle of the dispute.

There are times when your client should be recording, and openly recording. If there is a history of verbal abuse at transition times, you can often stop the behavior from occurring if you or someone else holds up a phone and says, “I’m recording this.” If the verbal or physical abuse continues despite the knowledge of being recorded, that sends a strong message to a judge that the parent who has bad behavior, particularly in front of the children, is not exercising good judgment. The judge will then structure a parenting plan in light of that information.

It is less clear whether recording is legal if you turn on your phone to record and walk around with it in your hand. That kind of recording is becoming more common with everyone having a phone in hand much of the time, and law enforcement is unlikely to criminally prosecute what is a relatively common behavior. The question that you have to ask is less about whether you will be criminally prosecuted and more about the goal of the recording. If your client is being threatened, a recording of the threat, particularly when there is more than just the bare bones of a threat, can support a criminal action or an abuse restraining order.

There are also times when your client’s child is telling him or her about something such as physical abuse that happened, and your client wants to record what the child is saying in order to report it to the police. This is an appropriate use of recording, assuming that you are not asking leading questions, thereby contaminating the reporting. However, if your client engages in a pattern of recording the child’s statements, a judge might view the pattern as being psychologically damaging to the child because it puts the child in the middle of a parental conflict. Moreover, if there is a pattern of recording the child’s statements or a habit of recording openly every transition between parents, a judge might admit recordings because the potential for harm in requiring a parent to wait to capture that one bad act would outweigh the risk of psychological harm to the child from being recorded. The reality of video and audio recordings is here to stay. It is an everyday reality, and every parent has to evaluate whether recording would be intrusive in a way that affects the psychological well-being of his or her child and to decide, therefore, whether it should or shouldn’t be used.

Be Aware—Be Very Aware

You wouldn’t want to induce fear of using technology to record, but recording should be done with an awareness of its risks and goals. Be very aware, also, of what the laws are, what the pitfalls are, and what the benefits of audio and video recording are. After all—paranoia is a heightened sense of awareness, and just because someone’s paranoid doesn’t mean they’re wrong.

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Rose L. Hubbard, of Evans & Hubbard in Tigard, Oregon, is a family law attorney who has been practicing law for nearly thirty years in Oregon and Washington. She is the author of Getting Past Ugly: Understanding Custody Disputes and Evaluations and a coauthor of chapters on spousal support and child support for the Oregon State Bar. She also writes frequently on family law and related topics on her blog, which can be read at http://www.evanshubbardlaw.com/blog.