1

Let's say someone as a voter is concerned with the level of corruption and lack of transparency in Washington, especially in Congress and White House.

Obviously, there are many many different approaches to solve (or try to solve) the problem, but our notional voter was inspired by NSA revelations and British CCTV program to become a fan of total surveillance methodology.

As such, they want to propose an audacious plan of wiring all of Capitol and White House to 100%[1] continuously record full audio and video, capturing all conversations happening there, especially the ones that expose the sausage-making and corruption.

[1] - obviously, for privacy reasons, some select rooms like bathrooms would be off-limits to such surveillance.

Leaving aside the questions of efficacy, ethics, cost, national security implications[2] or likelyhood of this proposal coming to life due to opposition of congresscritters, what interests me is:

Are there any rules (specifically, laws) that the proposal would violate?

Again, I am not asking if it's a good idea. I'm asking if it is an idea that can be rejected by the government on a basis of violating some rule/law.

[2] - there are obvious national security concerns here since some of the conversations happening are of classified nature. But they are a minority, and such recordings can be treated like any OTHER classified government information

  • 1
    I'm confused by this question. Are you assuming Congress is on board with this idea? If not, there's a good chance you're violating trespassing laws. If so, Congress can just change any laws the proposal would violate. – cpast Jan 6 '17 at 6:10
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    Also this seem to imply that corruption is always in the form of a direct bribery ("If you vote for X I will pay you Y") while missing the elephan in the room: "I am concerned about/in favor of law X" by someone who has given a large sum to the campaign funds and might decide not to do in the next campaign cycle, and which is completely legal and already public. – SJuan76 Jan 6 '17 at 7:46
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    The idea that there should never be private conversations/information shows a profound lack of understanding about the art of negotiation. It does not necessarily imply corruption. There is also much opportunity for corruption without conversations within the government offices. If a donor makes public statements about a policy they want, and a legislator accepts their campaign contribution and later votes in favor of that policy, does that imply corruption? It might or might not, but it doesn't require a direct conversation to accomplish it. – jalynn2 Jan 6 '17 at 13:41
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    @jalynn2 You can't. You need at least 500 reputation :) – Philipp Jan 6 '17 at 14:29
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    I'll have to double check, but this probably violates the Presidential Records Act. You'll also mostly be watching empty desks since all the employees would just work from home and lawmakers would have their meetings somewhere other than their bugged offices. – IllusiveBrian Jan 6 '17 at 22:24
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Executive Privilege

The government could reject it on the basis of executive privilege. Although not a law per-se, executive privilege was accepted by the Supreme Court of the United States as an application of the seperation of powers doctrine from the United States Constitution (see: United States v Nixon).

The specific wording of that decision includes:

... the public interest requires that Presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice ...

"Fair administration of justice" is a reference to current criminal proceedings. Executive privilege can't be invoked to impede a current investigation, but across-the-board surveillance is easily excluded.

  • 1. Does EP apply to entire executive branch or to president explicitly? 2. That wouldn't stop surveillance of Congress – user4012 Jan 6 '17 at 19:28
  • Just the office of the President, which could cover the White House. Yes, it wouldn't apply to Congress. – indigochild Jan 6 '17 at 19:41
1

This proposal is contrary to the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

  • There is surveillance in private workplaces. How is this special? – user4012 Jan 6 '17 at 18:55
  • @user4012 -- The list is almost endless. Surveillance in private workplaces is a means chosen by the owners of the workplace to secure their "persons," "papers, and effects". Surveillance in private workplaces is not surveillance by the government. An private employer can choose to not use it. Private employers make a point of not making the surveillance data available to the public. Ordinary people are not governed by private workplaces. A private employer can cease to exist (without the country ceasing to exist) if everyone refuses to support such surveillance. – Jasper Jan 6 '17 at 19:00
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    There's no Fourth Amendment protection for federal government operations. "Their persons, houses, papers and effects" - federal government workplace and work product is none of those. They are public employees, and the workplaces and everything therein belongs to the United States, as defined by the Constitution, "We the People." – PoloHoleSet Mar 30 '17 at 18:22
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tldr: Putting aside the method of acquiring information you outline above (direct audio feed), there are a number of laws that limit what government information you are allowed to access and additionally limit your access to sensitive buildings or rooms.

There are a broad spectrum of laws and case law on this topic, so consider this a very limited outline.

Our right to information about the Federal government is largely governed by the Freedom of Information Act. There are some specific exemptions on the type of information we're allowed access to.

The nine exemption categories that authorize government agencies to withhold information are:

  • classified information for national defense or foreign policy
  • internal personnel rules and practices information that is exempt under other laws trade secrets and confidential business information
  • inter-agency or intra-agency memoranda or letters that are protected by legal privileges personnel and medical files law enforcement
  • records or information information concerning bank supervision
  • geological and geophysical information

There are additionally, three special law enforcement related types of exclusions outlined.

Congress provided special protection in the FOIA for three narrow categories of law enforcement and national security records. The provisions protecting those records are known as “exclusions”. The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings. The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed. The third exclusion is limited to the FBI and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified. Records falling within exclusion are not subject to the requirements of the FOIA.

On the topic of executive privilege, the Congressional Research Service put together a legal analysis that outlines the currently defined "boundaries" of executive privilege:

Executive privilege (or what is sometimes referred to by lower courts as the presidential communications privilege) is a relatively nebulous, constitutional privilege that protects the confidentiality of presidential communications on the grounds that “[a] President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” The Supreme Court’s only significant analysis of executive privilege (privilege) comes from a pair of cases involving President Nixon’s unsuccessful attempts to maintain control over his communications and records. In United States v. Nixon (Nixon I), the Court rejected then-President Nixon’s attempts to quash a judicial subpoena issued at the request of a special prosecutor for recordings of conversations the President had in the oval office with close advisors regarding the Watergate break-in. In that case, the Court determined that “absent a [] need to protect military, diplomatic, or sensitive national security secrets,” the President’s “generalized interest in confidentiality” was outweighed by the “demonstrated, specific need for evidence in a pending criminal trial.”

Three years later, after President Nixon had resigned, the Court again disagreed with the former President’s broad conception of the privilege—this time in relation to the disposition of his records after he left office. In Nixon v. GSA (Nixon II), the Court rejected Nixon’s challenge to the Presidential Recordings and Materials Preservation Act, a statute that nullified an arrangement that gave the former President control over his own presidential records and instead established a process to secure and preserve Nixon’s records with the General Services Administration. Although the Court concluded that a former President may assert the privilege over communications that occurred while in office, any ongoing expectation of confidentiality was “subject to erosion over time….”

Additionally, in the Nixon litigation, the courts outlined that communications not related to the execution of the President's duties aren't covered.

“the privilege is limited to communications ‘in performance of the President’s responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions….’”

Now, why can't we just walk into the Senate or House cloakroom and hear for ourselves? It's a federal building and we're taxpayers, right? Not so fast. 40 U.S.C. § 193f forbids access:

(1) to enter or to remain upon the floor of either House of the Congress, to enter or to remain in any cloakroom or lobby adjacent to such floor, or to enter or to remain in the Rayburn Room of the House or the Marble Room of the Senate, unless such person is authorized, pursuant to rules adopted by that House or pursuant to authorization given by that House, to enter or to remain upon such floor or in such cloakroom, lobby, or room;

(2) to enter or to remain in the gallery of either House of the Congress in violation of rules governing admission to such gallery adopted by that House or pursuant to authorization given by that House;

(3) to enter or to remain in any room within any of the Capitol Buildings set aside or designated for the use of either House of the Congress or any Member, committee, subcommittee, officer, or employee of the Congress or either House thereof with intent to disrupt the orderly conduct of official business;

and 18 U.S.C. § 1752 is a little more direct about prohibited access

(1)the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area— (A)of the White House or its grounds, or the Vice President’s official residence or its grounds; (B)of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or (C)of a building or grounds so restricted in conjunction with an event designated as a special event of national significance

Otherwise, this blog has some incredible information about what you have the right to record and the legal background on how that right is protected.

0

Party Consent

Your proposal is illegal just about everywhere in the United States.

In pretty much every jurisdiction, at least one party to a conversation must consent in order for the conversation to be recorded. In some states, both/all parties must consent.

Your proposed surveillance apparatus would violate D.C. Code § 23-542, with a penalty of up to five years per occurrence, unless it were authorized by an amendment or a new law.

  • Party consent isn't applicable in this context, it's public officials in public building. "Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern" See, e.g., Glik v. Cunnife, 655 F. 3d 78, 82 (1st Cir. 2011) – LearnWorkLearn Nov 28 '18 at 3:24
  • That may be true for Congressional hearings and debates, but it is not true of their offices. I assumed the question was directed at those spaces, as C-SPAN already routinely broadcasts the House and Senate floor. – DoubleD Nov 28 '18 at 16:34
  • The DC code is still irrelevant in this situation, while you're right about offices having more restrictions that the visitors gallery, it's not because of that particular law. – LearnWorkLearn Dec 8 '18 at 18:16

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