Anyone Can Tape You
Friday, May 02, 2014
Audio recordings of racist rants by Los Angeles Clippers owner Donald Sterling went viral and led to his expulsion from the NBA. However, they may have been illegal. California requires consent from all parties in a conversation if it’s being recorded. Rhode Island, like most states, does not.
“Folks should realize that anyone can tape you,” said former Attorney General Arlene Violet.
“Lots of recorded conversations are done for purposes of divorce. Folks need to be reminded that anything they say over a phone can be used against them so they need to be mindful that they could be recorded.”
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Rhode Island is among the majority of states that require single-party consent for recording of telephone conversations. State law expressly allows the recording and disclosure of the contents of any wire, oral or electronic communication by a party to the communication or with the prior consent of one of the parties, so long as no criminal or tortious purpose exists. Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.
"RI’s one-party law is like the majority of states. It is also federal law, governing interstate calls. The philosophy behind these laws is that we all take the risk that anyone with whom we have a private conversation will remember the conversation or take notes and blab about it. If a person with whom we have a conversation records it, at least it will be an accurate rendition," said Robert Ellis Smith, Publisher of The Privacy Journal.
Business related calls
Ellis said Massachusetts and Connecticut have two-party consent law He also said there is a stipulation in Rhode Island law regarding businesses.
"Generally in these one- and two-party states, businesses may record business-related calls without consent, but not the part of a conversation that is clearly personal. The Sterling case should also remind us that these laws apply to in-person tape-recording as well as interception or recording of a telephone call."
Illegal Recording
It is almost always illegal to record a phone call or conversation to which you are not a party. Vermont is the only state with no criminal penalties for unlawful recording.
In Rhode Island, illegal recording – or disclosing with reason to know of the illegal recording – carries a criminal penalty of not more than five years in prison, but no penalty can be imposed if the contents of the intercepted communication have become “common knowledge or public information.” Civil liability is authorized for actual damages, $100 for each day of violation or $1,000 — whichever is greater. Punitive damages, attorney fees and litigation costs also are authorized. (R.I. Gen. Laws § 12-5.1-13.)
Vegress, a data engineering firm, offers a map of which states have which rules, as well as some case law from around the country. According to Vegress, the State Supreme Court has stated that Rhode Island’s wiretapping laws should be interpreted more strictly than the federal wiretapping statute "in the interest of giving the full measure of protection to an individual’s privacy."
RI criminal case involving wiretapping
“There are numerous criminal cases of taping conversations,” Violet said.
One of those cases dates back to 1979 – The State of Rhode Island vs. Frank “Bobo” Marrapese. Marrapese is one of the state’s most notorious mob figures. While on parole for murder, he was recently sentenced to nine years in state prison for racketeering conspiracy, extortion conspiracy and criminal usury charges. His place in Rhode Island taping consent law seems quaint in comparison.
“He was convicted of stealing a camper and selling stolen autos. Initially, he arranged for an associate to steal a camper to take him and his girlfriend, Vivian, to Florida to catch some rays,” Violet said.
“He then broke up with her. She went to the police to inform on his obtaining stolen property. The police approached another wise guy and he engaged Bobo in conversation over a phone on which the state police had placed a listening device. The conversation was recorded and Bobo talked about stealing cars and reselling them out of state. Along with the seizure of the purloined autos that matched the description of ‘available’ cars Bobo recited, his taped conversation was introduced to nail Bobo, who was convicted. It is pretty standard to tape these conversations at the direction of law enforcement for criminal prosecution,” Violet said.
More states are starting to move towards laws similar to those here in Rhode Island. Like California, Illinois was one of the few states to require the consent of all parties in a recorded conversation. The Illinois State Supreme Court recently declared Illinois’ “eavesdropping” statute to be unconstitutional. Chief Justice Rita Garman wrote this for the court:
“Audio and audiovisual recordings are medias of expression commonly used for the preservation and dissemination of information and ideas, and thus are included within the free speech and free press guarantees of the first and fourteenth amendments. The act of making such a recording is necessarily included in the first amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”
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