18 ms·

Ban on recording without consent is unconstitutional, US court rules

• gautamdivgi 3y ago
  Does this apply to private citizens or even government officials?
  • smt88 3y ago
    We already have an established First Amendment right to record government officials performing their duties in public places[1]. 1. https://www.dmlp.org/legal-guide/recording-police-officers-and-public-officials https://www.dmlp.org/legal-guide/recording-police-officers-a...
• ShadowBanThis01 3y ago
  The great thing is that many businesses that try to dick you over tell you immediately "this call may be recorded for quality assurance." And there you have your permission to record it.
  • ectospheno 3y ago
    I do this when calling help lines for companies. I tell the first person I get that I will be recording the call. 9 out of 10 times I am immediately transferred to someone else who ends up being far more knowledgable than tier 1 support.
• gjsman-1000 3y ago
  Banning recording private conversations without consent by one of the conversation members was always weird to me because of the “chilling effect” it has in people’s minds about recording perfectly legal things, or potential criminal behavior. Do I really want to record that domestic incident for use in a divorce later? What if it backfires? Should I really record my boss saying that? What if there’s a 20% chance it backfires? Etc.
  • maxerickson 3y ago
    Does not being able to use violence any time you choose have a chilling effect on using it when it is legally justified? What's the difference?
    • gjsman-1000 3y ago
      > Does not being able to use violence any time you choose have a chilling effect on using it when it is legally justified? Actually, sometimes, yes; from both homeowners and occasionally Police, despite their reputation, with sometimes deadly consequences. You are afraid to pull the trigger if you have no idea what the jury will think. However, there is a difference in that the use of violence to defend yourself is more or less the same in all states, give or take Castle doctrine. Oregon and a few others are unique. But I would like to add, because your analogy is so strained, violence is not speech.
      • maxerickson 3y ago
        The point is that of course it has a chilling effect. It's not useful as a standalone principle...
    • vkou 3y ago
      > Does not being able to use violence any time you choose have a chilling effect on using it when it is legally justified? It can, as can literally any law when you're brushing up into the boundaries of a gray area. The principal question is: "Do we want to live in a society where violence is usually allowed?" - Definitely not. "Do we want to live in a society where recording people without their consent is usually allowed?" - Maybe? Depends on who you ask. Unlike violence, our social mores consider this almost entirely to be a gray area.
      • wahnfrieden 3y ago
        [flagged]
        • 3y ago
• whiddershins 3y ago
  I didn’t read the whole thing but seems like it is being ruled unconstitutional because, ironically, Oregon has exceptions to the prohibition.
• awb 3y ago
  Two exceptions: > The law provides two exceptions relevant to this appeal: (1) section 165.540(1)(c) does not apply to a person who records a conversation during a felony that endangers human life, Or. Rev. Stat § 165.540(5)(a); and (2) section 165.540(1)(c) allows a person to record a conversation in which a law enforcement officer is a participant if the recording is made while the officer is performing official duties and meets other criteria.
• jauntywundrkind 3y ago
  This notably surround James O'Keefe's Project Veritas recording people, as the plaintiff suing the state. The dissenting opinion here is somewhat long to reposte, but seems worthy, in my view: > Dissenting, Judge Christen stated that because the majority does not dispute that the State has a significant interest in protecting the privacy of Oregonians who engage in conversations without notice that their comments are being recorded, the court’s analysis should be straightforward. First, principles of federalism require that the panel begin from a premise of reluctance to strike down a state statute. Next, following Supreme Court precedent, the panel should sever the two statutory exceptions [ed: felony endangering human lives, activities of police officers] that Project Veritas challenges, apply intermediate scrutiny to the content-neutral remainder, recognize that the statute is well- tailored to meet Oregon’s significant interest, and uphold section 165.540(1)(c) as a reasonable time, place, or manner restriction. Judge Christen stated that the purpose Oregon advances is its significant interest in protecting participants from having their oral conversations recorded without their knowledge. The majority recasts the State’s interest as one in “protecting people’s conversational privacy from the speech of other individuals.” That reframing of the legislature’s purpose serves as the springboard for the majority’s reliance on an inapplicable line of Supreme Court authority that pertains to state action aimed at protecting people from unwanted commercial or political speech, not protection from speech-gathering activities like Project Veritas’s, which are qualitatively different because they appropriate the speech of others. I wonder to what extent repeal might happen. Do the judges who struck this down intend to, in the absence of law, now allow 0 party consent recording? Can I just go around planting bugs around the city & start recording as many people as I can, unbeknownst to them?
  • gjsman-1000 3y ago
    That already exists - it’s called a video camera on almost every public area. Recording in public areas, unless the owner prohibits it, is almost always legal. This primarily concerned individuals. Two people couldn’t meet and secretly record a conversation with the other without consent. Recording a private conversation you are personally involved in, without notification, is legal in almost all states.
    • deleted 3y ago
• duxup 3y ago
  This smells like a pickle that SCOTUS will need to address. Just running it through my head and I feel like I could argue it in every direction… and the details of the case here make for some interesting wrinkles and a lot of second order type effects that could occur without some good guidance here.
  • shadowgovt 3y ago
    In general, SCOTUS wouldn't tend to pick this up unless another circuit has ruled the other way (in which case, yeah, they generally would to prevent unequal application of the law in different states).
  • User23 3y ago
    The simple approach is to default to single party consent but allow explicit nonconsent. In other words nobody can be recorded without their knowledge, but if they’re informed a recording is being made then remaining in the conversation is consent.
    • akhosravian 3y ago
      That isn’t single party consent it is all party consent. Single party consent is anyone in the conversation may record without telling others about it. Or a third party may record with the approval of any one who is in the conversation.
    • DougEiffel 3y ago
      Strongly disagree. There are so many situations in which abusive people (employers, romantic partners, politicians) need to be caught unaware or they won't be caught at all. Obviously there are lines to be drawn when we are talking about the government recording citizens. Warrants are an important check on power for this. But any individual should be able to record (mostly) anything. At the very least, it can save you money when a customer service rep claims they never said something. At most, it can keep you out of prison.
      • ShadowBanThis01 3y ago
• FlingPoo 3y ago
  In Canada you can record someone (phone call, in person, etc) if just one party consents to the recording. In other words, if I'm a phone call with someone, even if there are several people on the call, it's NOT illegal for me to record them, as long as I'm a participant in the call. It's called the "one party consent" exception. I have no obligation to ask, or tell the others on the call that I'm recording.
  • thatguy0900 3y ago
    This is the case in some us states as well
    • addisonl 3y ago
      Surprisingly, most states (39) are one party consent: https://wisevoter.com/state-rankings/one-party-consent-states/ https://wisevoter.com/state-rankings/one-party-consent-state...
      • echelon 3y ago
        California, Florida, Pennsylvania, Illinois, Washington, Massachusetts, Maryland, New Hampshire, Montana, and Delaware need to get with the picture.
      • sneak 3y ago
        Surprisingly? Why shouldn't you be allowed to record the things you hear?
        • dylan604 3y ago
          I interpret the "surprisingly" as shocked that that many have common sense one party consent rules. My skepticism would think idiotic rules to be the majority.
          • cubefox 3y ago
            From my (European) perspective this sounds strange. Wouldn't you be worried when e.g. your employer or partner is secretly recording your conversations with them? In Canada it seems to be even legal to publish these conversations without consent, though I don't know about the US.
• luxuryballs 3y ago
  What about recording my digital communications in transit? Does that require consent?
• eimrine 3y ago
  I stopped using smartphones when Android stopped supporting a phone recording software.
  • addisonl 3y ago
    Maybe they changed their stance? I found a support article from google on how to record calls: https://support.google.com/phoneapp/answer/9803950 https://support.google.com/phoneapp/answer/9803950 iPhone is (unsurprisingly) more “locked down” as in you can’t record with the default phone app but they don’t block phone recording apps from their app store either which is better than nothing considering the (foolish) stance apple could take here.
    • makeitdouble 3y ago
      > This feature isn't available on Pixel Of all the device lines that they could have banned from this feature ....
  • teawrecks 3y ago
    I use android and I can record my phone calls. So....
  • akshayt 3y ago
    The samsung phone app does support call recording and does not make any announcement about recording to the other party
• I_am_uncreative 3y ago
  Perhaps I'm misreading this, but this appears only to apply to those recordings done in public.
  • cvalka 3y ago
    Exactly, the ruling does not affect phonecalls.
• loteck 3y ago
  Very few commenters seem to realize that this decision affects only "States prohibiting recording without providing notice to or obtaining consent from the recording’s subjects when created in a place where the subjects lack a reasonable expectation of privacy“ (e.g. when talking in public). Which is only 5 states: Alaska, Kentucky, Montana, Massachusetts and Oregon. https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/03/22-35271.pdf https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/03/2...
  • lotsofpulp 3y ago
    Since this ruling came from the Court of Appeals for the Ninth Circuit, wouldn’t this ruling only affect Alaska, Montana, and Oregon from the above 5 states?
    • apple4ever 3y ago
      Yes that is correct. Decisions of federal appeal courts only apply in their circuit, not the entire country.
      • xoa 3y ago
        Though worth noting that different circuit courts absolutely pay attention to each others rulings, even though they're not legally binding precedent. If a clear case and solid ruling happens in one circuit the others may all go on similar lines. If a different federal appeals court comes to a totally different conclusion, that's a "circuit split" and is one of the major points at which SCOTUS becomes very likely to then step in and resolve it for the whole country. If this ruling gets appealed not impossible SCOTUS would take it anyway, but I'm not enough of a court watcher to have any sense of whether it might be considered ripe or important enough from just this one instance.
        • bluGill 3y ago
          Courts below a circuit also pay attention to other circuits. If there is no ruling in their circuit a judge will cite the other circuit(s) in their ruling. (they can go either way, but they make it clear they considered it and why they think the other circuits are right/wrong) Rarely a judge will cite a different circuit and go against their own circuit, but this is very rare (either the judge will point out substantial differences from the case the circuit ruled on and those differences mean the ruling shouldn't apply - this is likely to be appealed and if the higher court remains firm it is a black mark on the lower judge; or the judge will point out the law changed and so the ruling isn't valid anymore unless the higher court rules it unconstitutional which of course then lower judge cannot do)
• jacobmarble 3y ago
  Survey of "Telephone call recording laws" https://en.wikipedia.org/wiki/Telephone_call_recording_laws https://en.wikipedia.org/wiki/Telephone_call_recording_laws
• rgmerk 3y ago
  Say it was possible to sit in a large public park and record every conversation within it. Would this decision mean that the state would be unable to ban the use of such technology? If so, it strikes me as a dumb decision.
  • sneak 3y ago
    That was already true; you have no reasonable expectation of privacy in a public place, and never have. I can legally video and audio record anything I wish in a public park.
    • rgmerk 3y ago
      As has been pointed out approximately a billion times, technology has made surveillance possible to an extent that was inconceivable back in the founders' time. Before sound recording technology, if there was no-one else around and had a whispered conversation with another person in a public park, I have a reasonable expectation that the conversation is private. Fast forward to, say, 1980. While it's technically possible for law enforcement to record that conversation (with a dish microphone or through employing a lip-reader and binoculars) the resources required to do so are such that it's very rarely used. But what about 2023? Or, better still, 2033? Let's imagine it's technically possible for me to stand in the middle of said park with a recording device and intelligibly record every conversation within a 500-yard radius. Would this be considered acceptable? Should governments have the ability to prohibit or restrict the use of such devices, even in public places?
      • ShadowBanThis01 3y ago
        [flagged]
        • rgmerk 3y ago
          There are plenty of legal things that people discuss in parks that they nevertheless wouldn't want recorded and disclosed to all and sundry.
• swayson 3y ago
  Anyone know what the laws around this is in South Africa?
  • seanhunter 3y ago
    Looks like it's nuanced but the same set of considerations apply (ie whether people have a reasonable expectation of privacy in a given context and whether or not they have consented). https://uni24.co.za/are-you-allowed-to-record-someone-in-south-africa/ https://uni24.co.za/are-you-allowed-to-record-someone-in-sou...
• SeanLuke 3y ago
  > Plaintiff Project Veritas, a non-profit media organization that engages in undercover investigative journalism, states that it documents matters of public concern by making unannounced audiovisual recordings of conversations, often in places open to the public. This has got to be the single rosiest description of Project Veritas ever. https://en.wikipedia.org/wiki/Project_Veritas https://en.wikipedia.org/wiki/Project_Veritas
  • chii 3y ago
    The kinds of money this "non-profit" org gets is almost like they're getting funded covertly from foreign states, looking to interfere with american politics.
    • tourmalinetaco 3y ago
      Do you have any proof of this?
  • wnevets 3y ago
    [flagged]
    • ifyoubuildit 3y ago
      Which part?
      • wnevets 3y ago
        > a non-profit media organization that engages in undercover investigative journalism investigative journalism doesn't involve falsely editing video to ruin people's lives
        • waffle_ss 3y ago
          No they'll instead ruin your life for posting a Trump wrestling GIF on Reddit
• AdrianB1 3y ago
  As an outsider (European), I don't understand the reasoning for the dissenting opinion; I read it as: "you have a right, granted by the US Constitution (1A), but if the state has an interest that is in conflict with that right then you no longer have the right and this is fine". It asks the question "how is that right guaranteed?" if the State believes it is fine to revoke it. As I see, there is no clause in 1A saying: this right is valid only if the state does not have a different opinion. Free speech is free even if you cry "Fire!" in a theater, but not if the state has other plans? Btw, in Europe I think there is no country with free speech rights. My country has it in the Constitution, but it is cancelled by the next paragraph saying "it can be limited by law" (any law), so it practically means nothing as the laws should respect the Constitution, not to restrict it.