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Court OKs Covert iPhone Audio Recording 215

Posted by CmdrTaco
from the i-forgot-to-mention dept.
Tootech writes "Using an iPhone to secretly record a conversation is not a violation of the Wiretap Act if done for legitimate purposes, a federal appeals court has ruled. 'The defendant must have the intent to use the illicit recording to commit a tort of crime beyond the act of recording itself,' the 2nd US Circuit Court of Appeals ruled. Friday's decision, which involves a civil lawsuit over a secret audio recording produced from the 99-cent Recorder app, mirrors decisions in at least three other federal appeals courts."
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Court OKs Covert iPhone Audio Recording

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  • by mcgrew (92797) * on Thursday August 19, 2010 @11:54AM (#33302668) Homepage Journal

    It doesn't break Federal law, but it may be against state law. Recording someone without their consent is a felony in Illinois, and probably other states as well.

    • Re: (Score:2, Insightful)

      Not in TN (and it shouldn't be, IMO).

      • by mcgrew (92797) * on Thursday August 19, 2010 @12:07PM (#33302832) Homepage Journal

        it shouldn't be, IMO

        I agree. I call it the "liar's law". Of course, with the dirty politics we have in Illinois, it's no wonder legislators don't want their words held against them.

        • by sribe (304414)

          I call it the "liar's law".

          That's soft-pedaling it. I call the "Protection of corrupt politicians and law enforcement act" ;-)

        • Re: (Score:3, Interesting)

          It's not called "the Chicago way" for nothing.

          I lived there for a while as a kid, and it was common knowledge who owned who, and who you could mess with and who you couldn't.

          I find it almost impossible to believe that some of the jury members haven't been bought or threatened - powerful people in Cook county usually get their way regardless of the law.

          To be fair many other places have the same issue, but it doesn't seem to be as prevalent and blatant as it is in Chicago.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      We can only hope that the Federal courts can overrule this, at least on the fact of intended use.

      Trying to use it to blackmail, yeah, bad. You're trying to use it in commission of a crime. PMITA prison.

      Trying to use it to CYA, especially in a "He Said, She Said situation", can be the only way to protect yourself. Moreso if the other party is the police, who are given a higher degree of trust on account of their position. Ironically, seems like protecting yourself can get you more prison time than a fals

      • by commodore64_love (1445365) on Thursday August 19, 2010 @12:47PM (#33303362) Journal

        My main concern is the ability to record cops while I'm being questioned. I need that protection.

        COP: "Sir turn off that recorder."
        ME: "Why? So you can beat me up, like the other cops I've seen on youtube beating innocent citizens?"

        • Sorry citizen, but public officials cannot be recorded without their consent. It's not like you pay their salaries or anything. We went from a people that control the government, to a government that controls the people.
    • by gzearfoss (829360)

      What's notable about this case is that Connecticut (where the incident took place) is a 'two-party consent' state, at least for recording phone calls. This incident took place face-to-face, which prevented the state laws from coming in to play.

      A question for those with more knowledge of the legal system: Can this be used as precedent against two-party consent laws for call recording?

      • Re: (Score:3, Insightful)

        by mea37 (1201159)

        I'm surprised the Connecticut laws woudln't apply to face-to-face conversations; most states' intercept laws apply equally to any conversation.

        In any case, this ruling doesn't really change anything. The court's finding is taken almost verbatim from the statute, so it's pretty much nonsense that a federal lawsuit - much less a federal appeal - was ever filed in the first place.

        This is not a case where federal law can be used to "trump" state law. If the U.S. Congress passed a law that said "it is legal to

    • Re: (Score:3, Interesting)

      by corbettw (214229)

      That's OK, it's perfectly legal in Wisconsin, just an hour north of Chicago. Drive across state lines, make your recording, then broadcast for the world to hear.

    • by poetmatt (793785)

      yes, illinois is a 2 party state. however, can someone please put this wording into accurate sense?

      Are they saying that it's not illegal if you're recording someone committing a tort? The way the news article was worded seems confusing to me. Can someone translate for me?

      " 'The defendant must have the intent to use the illicit recording to commit a tort of crime beyond the act of recording itself," Isn't committing a tort a wrong?

      • by Entropius (188861) on Thursday August 19, 2010 @12:39PM (#33303258)

        The decision says that simply making the recording is not a tort or crime per se, but if you intend to use the recording to commit a tort or crime, then making the recording is itself prohibited.

        i.e. I can record you admitting that you're having an affair and send the recording to your spouse, but if I intend to use the recording to blackmail you, then the recording is itself a crime.

        • And that legal theory applied in many scenarios and is, IMNSHO, fucking retarded. The blackmail is already illegal. We don't need to make the means by which the blackmail was facilitated illigel. An act btw, that we already admit is NOT actually a crime in and of itself. It is this legal manuvuering that allows the legal system to pile on bullshit charges in an effort to force defendants to plead out because the sum of the charges, all stemming from only the only "real crime" of blackmail (in this examp

          • by blair1q (305137)

            No, this makes it illegal to record someone intending to (e.g.) blackmail them.

            Meaning you can be busted before you even threaten them with blackmail, if it can be proved that was your intent. And the situation can be obvious enough that your only intent could be blackmail. Or you could be recorded saying that's why you were doing it. Or you could confess.

            It's not a bullshit charge. Doing bad things is bad. The law wants you to know that.

            • Re: (Score:3, Insightful)

              by mcgrew (92797) *

              Doing bad things is bad. The law wants you to know that.

              No, doing illegal things is against the law; it has nothing whatever to do with good and bad. If you have an illicit affair with your best freind's wife, that is obviously wrong by most people's standards, but it's perfectly legal in Illinois. Your smoking a joint harms nobody, but that's illegal and they'll put you in jail for it. It's perfectly legal to go to a casino and play poker, but to sit in your kitchen playing poker with your friends is again

          • similar idea, white collar crime where some email exchange is involved each and every email counts as a separate case of wire fraud so someone in the course of a few conversations can rack up hundreds of years of jail time.

            what I don't get is why they don't just bite the bullet and make committing any crime while having eyebrows and not wearing a pink shirt with the word "crime" written on it prominently a mandatory 1000 year sentence.

            Then everyone who loves the "but it means they can add extra charges" thi

        • by poetmatt (793785)

          thank you. I would +1 mod ya if I could while posting. That's what I had thought, but wanted to make sure.

    • It depends on the nature of the conversation. Usually there's a clause where the other party must have a reasonable expectation of privacy. So while recording a phone conversation will get you busted, recording a conversation out in the middle of the street will not. Some states say that only one party needs to consent (the recorder, generally), some say that both parties must consent.
    • by sribe (304414)

      Last time I checked, it was legal in 39 states, illegal in 11. That was a couple of years ago.

  • ... where, as long as ONE of the parties of the conversation are aware it's being recorded, then it's legal.

    For them, this just affirms "business as usual".

    • by cgenman (325138) on Thursday August 19, 2010 @11:59AM (#33302732) Homepage

      There are twelve 2-party states out there, and some of them are big ones like California and Florida. And calling a two-party state from a one-party state does mean you need to follow the laws of both states.

      Check your local rules before you start recording.

      • And calling a two-party state from a one-party state does mean you need to follow the laws of both states.

        I'm pretty sure that would fall under Federal jurisdiction.

      • by MBGMorden (803437)

        There are twelve 2-party states out there, and some of them are big ones like California and Florida. And calling a two-party state from a one-party state does mean you need to follow the laws of both states.

        IANAL, but couldn't you only be criminally prosecuted in the state you broke the law in though?

        Supposed I call CA from TN and record the conversation. I couldn't be criminally charged in TN as I broke no law there. If charges were brought in CA then that would be irrelevant if I never actually went there right? Afterall that seems about as likely as being tried in China for me posting an account of what happened at Tienanmen Square. Sure it was against the law there, but I'm not there, so it's irrelevan

        • by SoupGuru (723634) on Thursday August 19, 2010 @12:07PM (#33302834)
          I admin a phone system in Idaho, a one party consent state. Basically, we can record anything without warning, even calls from two-party consent states.
        • If you called California from TN and recorded the conversation without the consent of the other party, you could be charged under CA law. If you were convicted, CA could request that TN extradite you to CA. I do not know of any case where one state has refused another state's extradition request.
          • Re: (Score:3, Informative)

            by tomhudson (43916)

            If you called California from TN and recorded the conversation without the consent of the other party, you could be charged under CA law. If you were convicted, CA could request that TN extradite you to CA. I do not know of any case where one state has refused another state's extradition request.

            Absolutely false - they need to extradite you first, THEN you have a trial. Not going to happen too often. So if you're in a one-party jurisdiction, record away, now that federal law outweighs the 2-party state la

      • "quality control" (Score:3, Insightful)

        by bsDaemon (87307)

        Just announce at the beginning of your conversation that the call may be recorded for quality control purposes.

        • by PPH (736903)
          "I'm sorry sir. But the your heavy breathing, grunting and assorted orgasmic noises don't measure up to our minimum requirements for a prank call."
      • There are generally exceptions in two-party consent states when recording calls without the consent of the other party if it is reasonably expected to retain evidence of a crime such as harassment or blackmail. In other words, it's generally okay to tape record a prankcaller or blackmailer without their consent.

        • by Haffner (1349071)
          Is this lawyer advice or "I hope the law is reasonable" advice because the latter tends to rarely be correct, sad as that may be.
      • by s73v3r (963317)
        My understanding is that this ruling didn't cover phone conversations, as the incident in question took place face to face. As in, the guy set his iPhone into Voice Memo mode, and did his business with the other guy.
        • by tomhudson (43916)
          In my original post, I didn't even mention phone calls, because the question is "do you need the consent of someone else to record a conversation", and the answer is no, not if you're part of the conversation. The other person is talking with you - they have NO reasonable expectation that you will not hear the conversation - you're one of the parties to the conversation. However, what's NOT allowed is for you to hang around two people who are having a conversation that doesn't involve you, and recording it
  • I wonder if this means it is still illegal to record police in public...since some cities have laws against that.

    • Re:Recording police? (Score:5, Informative)

      by corbettw (214229) <`moc.oohay' `ta' `wttebroc'> on Thursday August 19, 2010 @12:18PM (#33302970) Journal

      It's never been illegal to record police in public. That hasn't stopped certain corrupt police departments and district attorneys from persecuting people who do so, of course, but they've used twisted logic, not actual law, to make their cases. Radley Balko at Reason has done a number of excellent exposes on this problem.

    • by gstoddart (321705)

      I wonder if this means it is still illegal to record police in public...since some cities have laws against that.

      Hell, does this pave the way to just simply record everyone in public, all of the the time, and just say you no longer have any real expectation of privacy anymore?

      Man, Orwell had so much stuff right it makes me want to cry some days.

      • by oodaloop (1229816)
        Practically makes me want to drown my sorrows in synthetic Victory Gin while I try to keep the tobacco in my last Victory Cigarette, while sitting just out of range of the telescreen of course. Orwell got more than a few things wrong too, and pretty much every dystopian novel got at least a few things right.
  • Mmmmmm... Crime Torte
  • So I can record those spam calls from telemarketers!
  • by anglico (1232406) on Thursday August 19, 2010 @12:15PM (#33302930)
    There are way too many people lying and getting away with it nowadays, politicians or otherwise. Do I want all my conversations recorded, no, but I've tried to live with the motto of "Say what you mean and mean what you say". I wont say anything about someone unless I am willing to say it to their face and I think that is something missing from society today. I've had instances where a recorded conversation would have come in very handy in defending myself from ex girlfriend's attacks but it wasn't that big of a deal to me.
    • by gstoddart (321705)

      Do I want all my conversations recorded, no, but I've tried to live with the motto of "Say what you mean and mean what you say". I wont say anything about someone unless I am willing to say it to their face and I think that is something missing from society today.

      It's not about what you say about someone. It's about friggin' thoughtcrime.

      "Are you now or have you ever been a member of the communist party? Are you a homosexual? Do you disagree with the policies of the current government?"

      Sometimes, allowin

      • by s73v3r (963317)
        Agreed that's why the Government shouldn't be able to record every conversation I have. However, if I'm having a conversation with another private party (or hell, maybe even the Government), I should be able to record said conversation, at the very least for note taking purposes, and at the worst for a CYA measure. In the former case, a courtesy notice that I am recording would be nice, and probably expected. I'm not so sure about the latter.
        • by gstoddart (321705)

          Agreed that's why the Government shouldn't be able to record every conversation I have.

          The problem is, we've already seen what happens when the Government is the only one prohibited from doing this.

          There's all sorts of information the government isn't allowed to gather domestically without running afoul of something. The problem is, they merely buy the information from a corporate entity, and the whole thing becomes legal.

          What used to be the "poisoned well" is now the drinking fountain.

          So, what stops the C

      • by anglico (1232406)

        But I don't really say anything that I'd care about coming back to haunt me. Granted right now we live in a semi-free speech society, and that could change but I still can't see a real problem with it.

        Now to address the other part of your post concerning the government's surveillance, how about if it is going to be initiated for Law enforcement then restrictions should be in place, like warrants etc... So if a cop or federal agent comes to your house to talk to you about your recent postings online they ha

    • Let's say we have a conversation. I record it. I pull an Andrew Breitbart on it and make it sound like you want to murder your wife/employer/boyfriend/husband/mechanic and make it a credible threat and then I play it for them. That may ruin your life. Over a recording you didn't want to happen.

  • by rosvall (672559) on Thursday August 19, 2010 @12:17PM (#33302958) Homepage

    Why is it important that the recording was performed with this particular device?
    Are these kinds of rulings specific to the equipment used, or is this just the kind of story that needs buzzwords to get attention from certain demographics?

    • Back in the 1970s my dad had a magnetic pickup with a suction cup that we could stick on our hefty Bell System phone. When plugged into our Radio Shack portable cassette recorder, we could touch upon these exact same legal issues, almost 40 years before this iPhone app!

      But I guess that due to the reality distortion field, none of that really ever happened. None of this was logically possible before the iPhone App Store. Thanks to the iPhone, my childhood has vanished; it never existed at all. Now I feel lik

    • by SirGarlon (845873) on Thursday August 19, 2010 @01:18PM (#33303794)

      Lawmakers and judges don't understand technology, so the law does regard different technologies as totally different. So for example the government can read your e-mail without a warrant but can't read your postal mail without a warrant; VoIP has different regulations than circuit-switched telephones; video rental records are mandated by Federal law to be private, but your Web browsing history is not. It's madness.

      Whether an existing law applies to a new technology, or not, is pretty much a roll of the dice.

    • by mounthood (993037)

      Why is it important that the recording was performed with this particular device?

      It's unique because the iPhone owner will have notified everyone that they have an iPhone, but not necessarily that it's being used to record the conversation. It's like 1 & 1/2 party consent.

    • Re: (Score:3, Informative)

      by MarkGriz (520778)

      Why is it important that the recording was performed with this particular device?

      It isn't. It's a WIRED-vertisement, and now a slashvertisement as well.

    • A certain chunk of users on /. can't follow a story unless it has the word Apple or i___ in it or the story contains some highly reflective surface. Once in a while they will read something about the economy until they realize that Jobs was referring to reality not their glorious leader. Seriously this story has nothing to do with the iPhone at all.
    • by Idbar (1034346)
      Interestingly, I recently tried to use the voice recorder on the iPhone to record a conversation I was having with a couple of really annoying DirectTV customer service people (If I can say it here, IT IS THE WORST EVER). Where they asked me to call later due to system problems (knowing that their offices will be closed "later"), and arguing that they will not cancel my order, etc, etc.

      Long story short... the voice recorder cannot be activated while you're having a call. Does this article means an update
    • by DdJ (10790)

      Why is it important that the recording was performed with this particular device?

      Well, note that they're talking about wiretap laws, but the recording under discussion was done via physical proximity, not via "tapping a wire".

      If the recording had been done via an old analog microcasette recorder, would wiretap laws have ever come up? In this case, the recording was done by a phone, even though nobody was recording a phone call. I could see a need for the courts to provide clarity in this case. Because

      • by mobby_6kl (668092)

        Ok, but how is it relevant that it was an **IPHONE**? My 10 year old Motorola V50 could record calls as well as a regular face to face conversation, and so could my parent's 12 year old cd920/930, not to mention my current WM and Android phones.

  • Who gets to decide what "legitimate" means in this scenario? If it's left up to the judge and jury, surely it's already been admitted as evidence and is therefore legitimate by definition?

    • by Dunbal (464142) *

      It's already decided in the decision. So long as you don't use it to commit a crime, it's legitimate.

    • by mooingyak (720677)

      The ruling, from what I understand of the summary, is saying that the act of covert recording in and of itself is not a criminal act. It says nothing about admissibility of said recordings in other cases, merely that you cannot be charged solely for having made a covert recording.

  • Feetch! (Score:5, Interesting)

    by HTH NE1 (675604) on Thursday August 19, 2010 @12:43PM (#33303304)

    This has annoyed me for awhile now.

    I'm carrying a device that makes phone calls, plays music, has digital memory, and sometimes includes the ability to take voice memos, but it does not include built-in a feature for recording incoming and outgoing phone calls to that memory, all because of differing jurisdictions over whether or not you can record calls to which you're a party.

    These things have GPS built-in! Can't you just code the feature so that it complies with your location's laws?! Disable for certain corrupt-government regions, enable for others but regularly beeps, starts with an automated announcement, or runs in stealth mode according to your jurisdiction? Come on!

    As a bonus, include the ability to disable cell phones entirely based on GPS location so you no longer have to confiscate them when people enter your military base.

    And hey, can we get an exclusion to the wiretapping law for parents and legal guardians of minors so that they can monitor little Jimmy's drug trafficking deals and Jenny's prostitution hook-ups?

    • Re: (Score:3, Interesting)

      by pruss (246395)

      You don't want to disable phones based on GPS location instead of confiscating. For what would you do when there is no GPS signal, e.g., indoors? (If you allow the cell-phone use, then the bad guys can use cell phones on a military base after removing the GPS antenna. If you don't allow the cell-phone use, then lots of good guys suffer because they can't make calls indoors.)

      This doesn't affect the recording feature suggestion, as that could be done via cell-tower ID.

    • Re: (Score:3, Interesting)

      by tophermeyer (1573841)

      I'm carrying a device that makes phone calls, plays music, has digital memory, and sometimes includes the ability to take voice memos, but it does not include built-in a feature for recording incoming and outgoing phone calls to that memory, all because of differing jurisdictions over whether or not you can record calls to which you're a party.

      Android has a couple of apps that do it. But I can't imagine Apple (or any other operator of a closed OS) would want to make those kinds of apps available.

      iWiretap seems like it would be a bad iBusiness decision.

    • Re: (Score:3, Insightful)

      by joeyblades (785896)

      As far as recording calls, it's actually much simpler than this. All that is required for recording in two party states is a regular interval beep. Why not make the capability available to all and just insert the beeps?

      Now if you want to secretly record, that's different...

      A guy once told me that he secretly recorded all of his calls so he could catch people in lies... I told him that he should just tell everyone he was recording and then people would be less likely to lie in the first place. Better to

    • Re: (Score:3, Informative)

      by Inda (580031)
      Strange.

      I had a Panasonic over 15 years ago and it could record calls. It was basic and could only record for a number of seconds. I guess now it was for recording spoken addresses and phone numbers. I never used it.

      My last Sony could record calls. This was 4 or 5 years ago. Horrible Sony proprietary audio file. I never used it.

      My current Samsung, that's a couple of years old, can record calls. A nice mp3, on the memory card, as you'd expect. I've never used it

      I've never owned a Nokia, but I guess they reco
  • Our state constitution is very clear on that and many court cases have been won.

    So if you're following someone and they happen to go through WA, be aware that any decent lawyer will get the wiretap results invalidated.

  • Please speak into my iPhone clearly.

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