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www.rcfp.org] is a guide for journalists about the taping of conversations. Steve's list dealt specifically with phone conversation, this one deals more broadly. For example, if you live in MA, this is what it has to say:
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It is a crime to record any conversation, whether oral or wire, without the consent of all parties in Massachusetts. The penalty for violating the law is a fine of up to $10,000 and a jail sentence of up to five years. Mass. Ann. Laws ch. 272 , § 99.
Disclosure of the contents of an illegally recorded conversation, when accompanied by the knowledge that it was obtained illegally, is a misdemeanor that can be punished with a fine of up to $5,000 and imprisonment for up to two years. Civil damages are expressly authorized for the greater of actual damages, $100 for each day of violation or $1,000. Punitive damages and attorney fees also are recoverable.
For example, in Com. v. Hanedanian, 742 N.E.2d 1113 (Mass. App. Ct. 2001), the appellate court held that a defendant’s conduct of intentionally making a secret tape recording of oral communications between himself and his attorneys, without consent, violated the statute, even though the defendant was a party to the conversation.
However, the First Circuit, applying the holding in Bartnicki v. Vopper, 532 U.S. 514 (2001), held in 2007 that a woman who accepted from a source a recorded tape, that she had reason to know was recorded illegally by the source, could not be punished for publishing the tape on her website. The court held that the woman had a First Amendment right to publish the tape she received. Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007).
An appellate court has also held that the recorded conversation or communication does not need to be intelligible in order for the interception to violate the wiretapping statute. Com. v. Wright, 814 N.E.2d 741 (Mass. App. Ct. 2004).
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If I lived there, you can bet I would never record a shop. EVER. I might, however, make audio notes to myself, but I would not record the shop or any portion of it.
I live in HI. The law for HI says:
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Hawaii
Any wire, oral or electronic communication (including cellular phone calls) can lawfully be recorded by a person who is a party to the communication, or when one of the parties has consented to the recording, so long as no criminal or tortious purpose exists. Haw. Rev. Stat. § 803-42. Divulging any private message or photographic image by telephone, telegraph, letter, electronic transmission, without the consent of either the sender or the receiver, is a misdemeanor if the accused knows that the message was unlawfully intercepted. Unlawful interceptions or disclosures of private communications are punishable as felonies. Haw. Rev. Stat. § 803-42.
The one-party consent rule does not apply, however, to the installation of a recording device in a “private place” that will amplify or broadcast conversations outside that private place. All parties who have a reasonable expectation of privacy in that place must consent to the installation of a recording device. Haw. Rev. Stat. § 711-1111.
Civil penalties for unlawful interception or disclosure include the greater of actual damages or any profits made by the violator, $100 for each day of violation, or $10,000, along with punitive damages, attorney fees and litigation costs. Haw. Rev. Stat. § 803-48. A hotel room has been found by the Hawaii Supreme Court to be a private place where a recording device cannot legally be installed without the consent of the room’s occupants. Hawaii v. Lo, 675 P.2d 754 (Haw. 1983).
It is a felony to install or use a surveillance device in a private place to view a person in a “stage of undress or sexual activity” without the person’s consent. If the person is not in such a stage, it is a misdemeanor. Haw. Rev. Stat. § 711-1111. It is also a misdemeanor to possess materials obtained through illegal surveillance. Haw. Rev. Stat. § 711-1110.9.
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I tape every shop I do, and I keep every recording.
As to the entrapment issue, I tend to agree that any type of recorded shop that requires you to tape a TARGET is entrapment. I have an issue with the video ones most of all, where you are directly recording the OTHER, not you. As an ex-HR director, I am well aware that employees are given paperwork to sign on their first day of work that signs away all kinds of rights. If you want the job, you sign. In some states, like CA, anything signed under duress, which that is, will not hold up in court. In some states, it is airtight. Given that this kind of "consent" feels utterly wrong to me, I tend to avoid audio shops of most kinds, and will only do them when they allow me to get someone random and do not give me a set script I must use, so I am really recording my experience with any given employee. I will NEVER perform a video shop, even if the MSC paid me $1 mill.
To each their own. But the laws are real, and the penalties are real, and you need to know if what you are doing is legal where you live or do work, even if you do it solely "to keep accurate notes."
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“Lying in bed would be an altogether perfect and supreme experience if only one had a colored pencil long enough to draw on the ceiling."
~Gilbert K. Chesterton
Edited 2 time(s). Last edit at 05/25/2010 09:32AM by dee shops.