The dark side of privacy

February 11, 2014

In most states, you are generally free to secretly record conversations to which you are a party. Federal law likewise doesn’t ban such recordings. But in 11 states, including Washington, such recordings are illegal — and often inadmissible in court, even when they are extremely relevant. This is an exclusionary rule, but one that’s not limited to unconstitutionally obtained evidence. (The Fourth Amendment doesn’t cover recordings made by private citizens, and in any event similar behavior by government agents isn’t unconstitutional, either, so long as they are recording conversations to which they are a party.) And it covers recordings that, as I noted, are legal in the great majority of states.

In any case, State v. Kipp (Wash. Jan. 6, 2014) offers an example:

William Kipp was accused of sexually assaulting two of his nieces. He was confronted by their father, Kipp’s brother-in-law, who secretly recorded a conversation onto a cassette tape. This conversation was reported to police. The State charged Kipp, for the acts against one of his nieces, with two counts of second degree rape of a child and one count of second degree child molestation.

Kipp was convicted, but his conviction was reversed, because state law bars the admission of such recordings (and indeed makes it a crime and a tort to make such recordings):

(1) Except as otherwise provided in this chapter [including in the section related to court orders authorizing such behavior], it shall be unlawful … [to] record any … [p]rivate conversation … without first obtaining the consent of all the persons engaged in the conversation.

(2) Notwithstanding subsection (1) …[,] conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, or (d) which relate to communications by a hostage holder or barricaded person as defined in RCW 70.85.100, … may be recorded with the consent of one party to the conversation.

(3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted ….

Any information obtained in violation of RCW 9.73.030 … shall be inadmissible in any civil or criminal case in all … [except] in a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security.

Kipp can be retried, but in many such cases the recorded confession may be the strongest evidence of guilt, since the rest may well be he said/she said of a sort that wouldn’t (or shouldn’t) suffice as proof beyond a reasonable doubt.

The court, I think, interpreted the statute correctly; I can’t fault the Justices for the result. But is the statute a sound one? Maybe the 11 states are right, and clandestine recordings — by someone with whom one is speaking — are such serious wrongs that they should be deterred even at the cost of letting criminals go free. Yet this case, I think, shows the cost of such a policy, and I’m not persuaded that the benefits indeed outweigh that cost.

Finally, note that such clandestine recordings could be made by the police, if they get a court order and if they have the consent of one of the parties. But many people are understandably reluctant to try to go the police with such charges (especially against family members) until they try to confirm them themselves. And in any event, many police officers may not be willing to get the order in the first place if they find the victim to be untrustworthy. It’s the recording that may persuade the police officers that there is something to the case, but by the time the recording is obtained, the recorder (here, the victim’s father) has committed a crime.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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