Court OKs Covert iPhone Audio Recording

[Hawk]

Not sure where to post this. Move it please if in the wrong forum.

Link to article: http://www.wired.com/threatlevel/201...dio-recording/

August 18, 2010

"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,” (.pdf) the 2nd U.S. Circuit Court of Appeals ruled.
Friday’s decision by the 2nd U.S. Circuit Court of Appeals, 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.
The lawsuit concerns a family dispute over the making of a dying mother’s will. Days before the Connecticut woman died, her son secretly recorded a kitchen conversation between the son, mother, stepfather and others over how to handle her estate after her death.
The son, in a probate dispute, turned over the audio file to the court in 2008 to bolster his position concerning the estate of his late mother, who died without a will. The stepfather sued him, alleging a privacy breach under the Wiretap Act. A federal judge dismissed the case, and the stepfather appealed.

The appeals court ruled that, even if the son consented to his own taping, he could be sued for money damages for a breach of the Wiretap Act if and only if he did so with a nefarious intent.
“We affirm, and, in so doing, hold that the exception to the one-party consent provision of 18 U.S.C. § 2511(2)(d) requires that a communication be intercepted for the purpose of a tortious or criminal act that is independent of the intentional act of recording,” the New York-based federal appeals court said."

[streaker69]

The lawsuit concerns a family dispute over the making of a dying mother’s will. Days before the Connecticut woman died, her son secretly recorded a kitchen conversation between the son, mother, stepfather and others over how to handle her estate after her death.

So, all the people were in the same room, so this wasn't a case of recording a conversation over a phone call. The fact that it was an iPhone is just incidental, he could have done it with any type of recording device including an old reel to reel sitting in the room.

The only reason this is news at all is because the Jesus phone was mentioned.

[Hawk]

So, all the people were in the same room, so this wasn't a case of recording a conversation over a phone call. The fact that it was an iPhone is just incidental, he could have done it with any type of recording device including an old reel to reel sitting in the room.

The only reason this is news at all is because the Jesus phone was mentioned.

I don't see it the same way. I see it as him recording a "private conversation" without the consent of any other party and the U.S. courts saying it wasn't an illegal act in that context.

[streaker69]

I don't see it the same way. I see it as him recording a "private conversation" without the consent of any other party and the U.S. courts saying it wasn't an illegal act in that context.

I'm not saying that it wasn't illegal, I'm saying that the only reason it's news at all was because it was done via an iPhone. I see it as no different than someone using any other type of recording device to record a private conversation.

The court's ruling, I believe is wrong, and the guy shouldn't have been recording a conversation without consent. The device that did the recording should have no bearing upon the case whatsoever.

[Hawk]

I'm not saying that it wasn't illegal, I'm saying that the only reason it's news at all was because it was done via an iPhone. I see it as no different than someone using any other type of recording device to record a private conversation.

The court's ruling, I believe is wrong, and the guy shouldn't have been recording a conversation without consent. The device that did the recording should have no bearing upon the case whatsoever.

Not sure why you are focusing on the device, it's not significant to the ruling or the story.

[whoshisface]

That ruling is bullshit. Don't get me wrong I hate the law, if youre going to say it be prepared to have it recorded. However the purpose of that law (not to be confused with the pa law which specifically states a penalty if it us used as evidence of a crime!!!!) is to protect a private conversation regardless of it's content. Amazingly this idiot judge doesnt either know how to read English or was too lazy to come up with a good legal reason to ignore this law.

[streaker69]

Not sure why you are focusing on the device, it's not significant to the ruling or the story.

"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.

I'm saying it because it was stated in the first line of the article. I doubt that this would have made national news had it not been the recording been done on an iPhone.

ETA: Actually, I'm gonna reverse my opinion of this case. I think the judges ruled correctly. If the son did not do the recording for "nefarious purposes" then he was right within the law. He did the recording, as I see it, to protect himself and his mother's wishes, as the mother was in the room as well. It would seem he did not intend to use the recording to blackmail or extort anyone but to prove what his mother's wishes were.

Much of that is conjecture on my part based upon the article, but chances are, if I were in the same position, I'd do the same thing.

[MontCo Alex]

Ok not a lawyer here but here is how I read it.

Basically all the judge did is say that his recording was not nafarious.

It seems to say that recording is ok with one party consent (this was my previous understanding of federal law as well), but there is an exception to this legality if the "communication be intercepted for the purpose of a tortious or criminal act that is independent of the intentional act of recording". The judge just said the recorder's intent was NOT tortious or criminal.

But from what I understand this is federal law, and in some cases state law is more strict on this.

Alex

[ChamberedRound]

You guys need to calm down with the rhetoric. IMHO this is a decent ruling.

IANAL, but this ruling highlights the principle of "justification", namely that a person has cause to commit a crime if that person is doing so to prevent a greater, more serious crime. This is similar to using force; if a person uses force, they are technically committing a crime against another; however, if they are doing so to protect themselves or others from harm, then they are justified in their actions.

See a more detailed description of justification from GunLawyer here:
http://forum.pafoa.org/general-2/214...tml#post277745

The way I read this ruling, the court is claiming that the son was justified in recording the conversation, because he felt that foul play was afoot in regards to his mother's will. Note that the court also claims:

...he could be sued for money damages for a breach of the Wiretap Act if and only if he did so with a nefarious intent.

It's my assumption that the court was convinced that the son's intent was not nefarious. In other words, they believed his concerns of foul play to be valid, and hence his actions justified. However, if it was found he recorded the conversation and used it for personal gain without justification, or that the conversation did not prove out the concerns of foul play, then everyone who was recorded without consent could have sued him.

I'm with you guys that people shouldn't be recorded without consent. But, if those people are in the act of committing a crime, or conspiring to commit a crime, then others should be able to protect themselves from being the victims of such a crime. Wouldn't you want the ability to record a conversation with another individual who might intend to injure, blackmail, threaten, or otherwise harm you, in the hopes such a recording would justify your redress?

[IraqVeteran87]

You should celebrate that for once common sense was used in the legal system. Obviously,the son recorded the conversation to prove his late mother's interests were followed. The stepfather was pissed off (because he was greedy and wanted more then he got) and found a way to attempt to get back at the son. The judge most likely saw this for what it was. Just because a law exists doesn't mean it is just or right. All the recording law does is promote criminal activity. I shouldn't need your consent to record a conversation between us. If your uncomfortable with the idea of being held accountable for what you say then you shouldn't say it. Just my .02