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I asked this question in the law site, but I was told it has more to do with politics (same question in the law site).

Let's assume A and B have a discussion about a business deal and A will record the conversation without B's knowledge. Later on, they have a disagreement that takes them to court. Let's also assume that the recording is long enough to be unambiguous and can't be taken out of context.

In some states, B should consent to the recording but I fail to understand the motivation behind that law:

  • A is already 'recording' the conversation in his brain. It may be a fuzzy and somewhat unreliable recording, but the conversation is nonetheless saved somewhere.
  • If the court is trying to establish 'the truth', nothing could be better than a recording of the situation; why rely on 2 fuzzy biased recollections of the events when a single recording will provide reliable information.
  • One could argue that if A is wrong, he will not produce the recording, but if he's right he will product it, therefore B is at a disadvantage; but maybe A has a much better memory than B, or vice versa, so there is no true equality when it comes to event recollection and we'd just be adding a lot of random to the process.
  • A could think that since he's not allowed to produce a recording, he could do a transcript of his memory, aided by the audio recording; but since he knows the 'truth', having his testimony valued at the same level as B's pure memory recollection is putting A as a disadvantage since B's memory, not matter how good, wouldn't rival a recording.

I can't understand the motivation of 2 consents at all. Can someone explain it to me?

  • I'm not sure what tag to add to this, I think only the law tag doesn't cover it but I'm not sure what other tags fit. If you want to add another tag, please feel free to add a comment. – JJJ Apr 9 at 13:24
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    It's related to illegal eavesdropping or wiretapping. Can you elaborate on what the relevant wiki page doesn't cover well enough? – Denis de Bernardy Apr 9 at 13:49
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    Stopping stuff from being taken out of context and/or proving it wasn't taken out of context is probably the entire point of the law, so your assumption about the recording being unambiguous is a hard one to make. "Why aren't guns allowed on planes? Let's assume they won't be used for hijacking it". – Giter Apr 9 at 15:11
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    @Thomas You seem to be asking from a purely "How will it help the legal system" point of view, but you need to consider non-legal abuses of recordings. They could be used for blackmail or to embarrass or humiliate someone, and there are privacy considerations. I once associated with someone who recorded everything; he occasionally got out humorous, embarrassing recordings to poke fun at people, often using quotes out of context. I refused to associate with the person after that, as I should not have to put up with that nonsense. You need to consider more than just the court ramifications. – Aaron Apr 9 at 21:17
  • @Aaron, point taken; I didn't really think out of the legal context. – Thomas Apr 9 at 21:18
36

If I know you are recording me, I may speak differently and use clearer language. If I don't, I may be more likely to use ambiguous language that can be taken out of context. Consider the case of James O'Keefe and Project Veritas. Their goal is to surreptitiously record people doing things some people may think are bad and discredit them for political purposes. As it turns out, selective editing of the recordings caused a massive uproar on a number of issues when in fact the context surrounding the recorded exchanges was sometimes hotly disputed after editing, and in some cases demonstrably false.

Numerous undercover investigations by would-be reporters at factory farms attempted to highlight the conditions of animals at those places, inspiring a wave of Ag-gag laws in some states and other anti-whistleblower legislation. In some cases they were successful at being truthful and highlighting abuse, in others they were only successful at hurting their cause since legislators in those areas weren't convinced of the recordings' veracity given how they were obtained.

Having two-party consent to record interactions means everyone knows a recording exists. If I know a recording exists of me, I would be more likely to request a full unedited copy so that I may protect myself from people who only wish to further their own agenda regardless of what I actually say. If someone has to lie or be deceitful in order to obtain a recording, how can viewers trust that what they see or hear is the full context? A single surreptitious recording can be used to imply a large scale conspiracy and discredit an entire organization, when in reality there could just be a single bad actor.


Note - this issue is distinct and separate from so-called "ambush journalism", since generally in those cases large lumbering cameramen are a giveaway that the target is being recorded.

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    @opa See the note at the bottom. It is a completely different issue when the recording is done in full view vs when it's done surreptitiously. Continuing an interaction once you know it is being recorded is implicitly consenting to being recorded. I'm not sure if any state laws actually take that into account, though. – Jeff Lambert Apr 9 at 17:51
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    A particularly good example involving Project Veritas is a situation in which an ACORN employee 'played along' with a scam that O' Keefe purported to run, and then called the police after O' Keefe left. The viewer of O' Keefe's footage may take the ACORN employee at face value and assume he was facilitating the scam. It turns out that hidden recordings can be used to make honest citizens look like accessories to fraud. en.wikipedia.org/wiki/ACORN_2009_undercover_videos_controversy – John Apr 9 at 18:13
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    Downvoted for the baseless claim that Project Veritas do "selective editing of the recordings" because they always offer the full, unedited versions, and this is merely a myth peddled by political outlets (on the receiving end of said records) like media matters and think progress. – SSight3 Apr 9 at 19:22
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    @SSight3 Maybe they do offer the full versions somewhere, I'm not sure, but what they released to media outlets was definitely selectively edited so I welcome your downvote. Have a great day! – Jeff Lambert Apr 9 at 19:24
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23

To pick a two-party-consent jurisdiction at random, let us consider California, USA.

In 1967, the California Legislature enacted a broad, protective invasion-of-privacy statute in response to what it viewed as a serious and increasing threat to the confidentiality of private communications resulting from then recent advances in science and technology that had led to the development of new devices and techniques for eavesdropping upon and recording such private communications.

This was done by means of Assembly Bill 860, which became Penal Code §§ 630-637.2. In a statement by Assemblyman Jesse Marvin "Big Daddy" Unruh, before the Senate Committee on Judiciary, the bill was so described:

The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society. The Legislature by this chapter intends to protect the right of privacy of the people of this state.

This would suggest that the motivation for a law requiring 2 parties to consent for recording a conversation is a concern for privacy.

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    Your example, which is 99% of your answer, does not seem to apply to this Q&A about 2-party consent since it is about eavesdropping. Unless there is something in the legalese that suggests otherwise, I don't see how you could call 1-party consent eavesdropping. Eavesdropping would be more 0-party consent, no? – Aaron Apr 9 at 21:24
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    @Aaron: The law explicitly addreses recording of conversations: " 632 (a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished [...]" - California Penal Code, 631. – sleske Apr 10 at 11:29
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    The way the law is worded, it's more two-party knowledge than two-party consent. "A person who, intentionally and without the consent of all parties to a confidential communication" and then "confidential communication" is defined as being one in which the parties participate in under the belief that it's not being recorded. – Acccumulation Apr 10 at 15:43
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    @Acccumulation Knowledge is an obvious prerequisite of consent, so there is a close relationship. Once there is knowledge of the intent to record a conversation, consent is easily indicated by action: non-consent is expressed by stopping to talk, walking away, hanging up the phone, etc. Consent is expressed by continuing the verbal interaction in the full knowledge it is being recorded. – njuffa Apr 10 at 18:28
  • Jesse Unruh said "Money is the mother's milk of politics." And he didn't want anyone to record conversations with him without his permission. Was this law a pre-emptive strike against anti-corruption investigations? – Jasper Apr 11 at 5:54
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I think you're starting from wrong assumption:

A is already 'recording' the conversation in his brain. It may be a fuzzy and somewhat unreliable recording, but the conversation is nonetheless saved somewhere.

One's memory is not equivalent to a record. Your memory is a proof only to you, while a record is a proof you can use to convince others.

If the court is trying to establish 'the truth', nothing could be better than a recording of the situation; why rely on 2 fuzzy biased recollections of the events when a single recording will provide reliable information.

The act of observing changes the state of the system being observed. That's not only true for quantum physics but for people as well. A will behave differently: be more reserved and defensive knowing that the conversation is recorded. B will talk more freely and openly. By recording that A knows but B doesn't, the conversation is already biased, because A is talking things that will sound good on tape in court, while B is talking things that sound good in conversation. We are imperfect beings, we don't say things that are true. It can be summed up as: we say things that we imagine the other side wants to hear. With one-side recording, B is talking to A, but A is talking to the future judge (or whoever they plan to produce this record to). It's unavoidable that the judge will gravitate towards A.

One could argue that if A is wrong, he will not produce the recording, but if he's right he will product it, therefore B is at a disadvantage; but maybe A has a much better memory than B, or vice versa, so there is no true equality when it comes to event recollection and we'd just be adding a lot of random to the process.

Now this part puts A at clear advantage. It's not about who remembers it better, it's about who can convince the judge they're right. If A is right, they go to the court and produce the recording. If A relistens the recording and realizes they're wrong - they back down and hide the record. If be goes to the court, court has no way of forcing A to produce the record (your "ultimate source of truth") because nobody knows it exists.

A could think that since he's not allowed to produce a recording, he could do a transcript of his memory, aided by the audio recording; but since he knows the 'truth', having his testimony valued at the same level as B's pure memory recollection is putting A as a disadvantage since B's memory, not matter how good, wouldn't rival a recording.

That's not any disadvantage. You're stretching it too far. Both A and B represent their recollection about what happened. The fact that A knows for sure their recollection is closer to the truth than B's is annoying and frustrating but that's not a disadvantage. It's B who's at disadvantage, as human memory is imperfect and we can't tell facts from fiction. Or you can say that it's the truth (if it even exists) is at disadvantage.

A can always choose: the not-really-unbiased recording, or human memory/imagination. It's like playing in casino with 2 dice and you get to pick which one everybody gets to honor after the throw. That's huge.

3

Why would you make a business deal with a person who doesn't consent to it being recorded ?

The issue is not a business deal where you have different takes on what the agreement actually was (and I would strongly suspect that a recording of the conversation would be permissable in court).
The Issue is private conversations that could be a problem in a different way. Like an access hollywood tape as an example (note that there was consent here, obviously, and both of them were wearing a microphone. I just used the incident as an example.).

  • What is the point of your example, if they had consented? – Azor Ahai Apr 9 at 21:01
  • You realize that there's no example where they didn't, for legal reasons. But the point was, obviously, that the things that were said in the tape are the kinds of things the law is supposed to protect you from coming out. – xyious Apr 9 at 21:20
  • The point wasn't "obvious" if I had to ask. – Azor Ahai Apr 9 at 21:24
3

This answer is about the differences between mutual notification and mutual consent. Other answers have already pointed out that people behave differently when they know they are being recorded -- which would happen in either case.

Mutual consent leaves little ambiguity that both parties know the conversation is being recorded. One party must offer to make a recording, and the other party must actively accept.

In contrast, when the standard is merely mutual notification, it is easy to dispute that adequate notice was not given. What is adequate language for such a notice? What if the other party could not hear or does not understand the notice? Do nonverbal actions such as showing recording equipment qualify as notice? Because no action is required by the second party, there is a great deal of ambiguity whether notice was adequately given. In some cases, the second party could simply deny after the fact that notice was given.

The standard of mutual consent therefore reduces disputes between the parties that notice was given.

3

If I know the conversation is being recorded and you do not I can deliberately steer it to implicate you in things while avoiding implications to myself.

I can also selectively edit the audio after the conversation happens and unless we both have a copy it is hard for me to prove that happened. If both people know it is being recorded and have a copy of the original recording that is fair to both sides.

For example let's say two politicians are talking and you talk about the affair you had in order to get your opponent to talk about your affair. Then afterwords you cut out your own admission and anonymously send the other part to a few reporters. Or even worse take a few snippets out of context (potentially if really sliding down the slippery slope completely re-cut them).

For example "I hear you had an affair", "I deny that". "What do you think about bill X", "That's a complicated question" could be re-cut as "I hear you had an affair", "That's a complicated question" and as only one person has the recording it is hard to prove otherwise.

1

I'd say everyone here more or less assumes that recording can be done only by one party. So for example editing is easily done as no one can prove it was edited [don't know technicalities behind proving editing].

But getting the advantage because of editing might be as well false. Edited proof might actually lead to loosing case, imprisonment etc, if other party was also recording secretly and this is now proof of dishonesty. So instead of being leverage is exactly the opposite.

Since there are laws prohibiting use of recordings, the use of the recordings is not being improved and we all are in the grey area of 'what if'.

I can imagine that idea behind not using recordings might be that it might divide society more. No one would speak freely anymore in private settings etc. especially if there would be some televised cases of clebs or citizens loosing a lot because of being secretly recorded. Distrust could be really bad.

I see no reason though, why in business settings it should be ever prohibited. That is the setting that is widely abused by cowboys or too mighty business people anyway - and I think that might be the real reason of no recording laws. Mighty business people would never allow this kind of leverage to anyone.

  • While modern digital editing techniques make it possible to do very sophisticated editing that's difficult to prove, I think you'll find that most such laws were crafted long before such techology existed, when recording was primarily done on magnetic tape, and editing consisted of splicing and re-recording. I doubt ease of editing was a factor in the creation of such laws. – barbecue Apr 12 at 0:46
  • My opinion was very narrow. It mentions only editing, but manipulated use that can be contradicted by other party recordings is ie. Out of context recording, first that comes to my mind. Apart from that whatever was the medium to carry data, there was always editing possibility existing I guess. Plus criminals were usually one step ahead of law as they were trying to invent ways of circumventing a ways of detection of illegal activities... – Over-heads Apr 13 at 16:15
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One big thing not covered yet is that 1 party consent allows recording a person without their consent, while 2 party consent does not.

  • 1 party consent means: You are allowed to record people without their consent*.
  • 2 party consent means: To record someone you need their consent**.

So the discussion gets down to if lawmakers want to allow people to record themselves and their constituents without their consent, or not. There are plenty of arguments either way, with the main argument in favor of recording without consent being transparency, while the main argument against is fear of slander/extortion.


*under limited but rather common circumstances.

**exceptions apply

-1

This law is to protect salesmen, collection agents, contractors, repair shops, etc. from customers who would be able to prove what representations and promises were made if the recording were allowed. In MA (until a federal court ruling) it served, according to the MA Supreme Judicial Court, to prevent criminals from documenting police misconduct.

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    Please add sources to support your answer. You answer is as yet unconvincing that those are the reasons for making such laws. – JJJ Apr 11 at 21:45
  • I can't see how a law would be enacted to protect criminal action. As @JJJ stated, can you provide sources? – Thomas Apr 17 at 9:12

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