Secret recording surges ... and it's legal, too

Marshall H. Tannick
BridgeTower Media Newswires

“Be secret and exult ... that is most difficult.” — William Butler Yeats, Responsibilities (1914)

The surge in surreptitious recording was highlighted recently with the revelation of the secret White House recordings, reportedly up to 200, by ousted Trump administration aide Omarosa Manigault Newman.
The disclosure, accompanying the publication of her book “Unhinged” about her experiences on the 2016 presidential campaign and her ensuing two-plus years in the White House, came on the heels of the divulgence of potentially inculpatory secret recording of President Donald Trump by his former trusted lawyer and “fixer,” Michael Cohen, who entered an eight-count felony guilty plea a few weeks ago. Meanwhile, Bob Woodward’s new best-seller about discord within the administration, “Fear,” relies heavily on recorded interviews by the Pulitzer Prize-winning author of Watergate fame, but these apparently were done consensually."

Clandestine recording of presidential conversations has a significant and sordid history. It was done, to varying extents, by Franklin D. Roosevelt, John F. Kennedy and Lyndon Johnson.
But Richard Nixon turned it into an art form, and it was turned against him. It was his surreptitious taping of his own Watergate-related conversations with his factotum that put the nail in his impeachment and resignation from office 34 years ago last month.

Clandestine culture

Secret recording has come a long way since then technologically, legally and perhaps morally as well. Advances in electronic gadgetry have greatly facilitated the practice. Unlike the awkward body wiring to capture the remarks of crooks, as in the movies about the Mafia and police corruption like “Serpico,” the klunky machines stashed in apparel pockets or purses or the hit-and-miss telephone recording instruments of the not-so-distant past, devices today are so small, undetectable, and easy to activate that users no longer need to tell surreptitiously recorded subjects to, in effect, talk into the lampshade.
Clandestine recording, audio, visual and both combined, have been encouraged by the culture. Surveillance cameras seemingly everywhere in private facilities and in public streets and other places, have made people accustomed to having nearly everything they do outside of their homes —and even sometimes there, too — watched and heard.
The practice of secretly recording conversations, whether on the telephone or in-person, raises a number of concerns and questions.

First and foremost

The first and, perhaps, foremost issue is: Is it legal?

The answer, contrary to popular misconception, is decidedly yes, at least in most places. Unlike wiretapping or other physical intrusions, which are subject to federal constitutional and statutory provisions, the legality of clandestine recording is governed, for the most part, by laws in each jurisdiction. In 40 of them secret recording, whether in person or otherwise, is lawful if done by a participant in the conversation or with the approval of one of them. In these so-called “one-party” consent jurisdictions, taping need not be preceded by beeps, flashes or other warnings as in the “Rockford Files” television show. Washington, D.C., where Omarosa did her recording and New York, where Cohen did his, are among those jurisdictions.

But in some states, such as California and Pennsylvania, surreptitious recording, even with one party’s consent, is a serious offense, giving rise to criminal and civil penalties. One state, Illinois, had its prohibition deemed unconstitutional four years ago. People v. Melango, 2010 Ill. 114852 (2014).

But woe unto those who do likewise in other states where secret recording may be a felony or a lesser criminal offense. Had Omarosa strayed a few miles and done her recording in neighboring Maryland, she could have faced criminal charges if she knew it was illegal to do so.  Md. Code Am. § 10.402. This odd gravamen nearly tripped up Linda Tripp, Monica Lewinsky’s confidante during the Bill Clinton impeachment imbroglio; although she ultimately was acquitted under the aberrant principle that lack of knowledge of the law is a valid defense to breaking it, a contention that usually falls on deaf ears in connection with other offenses.

Seamy suspicions

Despite its legality, surreptitious recording is viewed as somewhat seamy, at least for attorneys in the private sector. The Minnesota Lawyers Professional Responsibility Board in 1996 cautioned most lawyers not to engage in such activities. According to its Opinion No. 18, lawyers were prohibited from surreptitiously recording conversations or aiding or assisting others in doing so.

The opinion declared it to be “professional misconduct … to record any conversation without the knowledge of all parties to the conversation.” The proscription was consistent with many jurisdictions that have addressed the issue and the view of the Minnesota State Bar Association, whose committee on ethics and professional responsibility issued a somewhat similar edict in 1974.

The premise of the prohibition, according to the comment to Opinion No. 18, is the secret recording — even if not illegal — is “inherently deceitful” and runs afoul of the ethical rules barring dishonest behavior by lawyers.

Nonetheless, the proscription was not preclusive. The opinion permitted surreptitious recording by attorneys in several circumstances. It did not apply at all to criminal prosecutions and defense lawyers may also do so outside of their “professional activities” and they can secretly record “a threat to engage in criminal conduct.”

Additionally, while forbidding lawyers from recording, or aiding others in doing so surreptitiously, the opinion did not prevent lawyers from informing others of the legality of the practice.

Accordingly, the opinion established somewhat of a twilight zone for most lawyers outside of the public sector, who cannot participate in surreptitious recording, or aid or assist others in doing so, but may apprise clients of the permissibility of their doing so. The proscription created an awkward situation in which lawyers cannot engage in lawful activities that their clients are permitted, and sometimes encouraged, to do.

Notwithstanding the profession’s antipathy to surreptitious recording, the practice often is useful and sometimes reasonably necessary means of gathering evidence. Its utility, along with other technological developments, led to the demise of the prohibition years ago, and now lawyers, too, can secretly tape or otherwise record most matters.

But the recording of a client, as Cohen did to Trump, raises some ethical enigmas and the subsequent disclosure of it magnifies those issues as possible breach of attorney — client “confidentiality.”

True tale

Clandestine recording in “one-party” states may raise other additional concerns, both legal and otherwise. The misuse of the recording, especially for commercial purposes, could lead to civil litigation for violation of the right to privacy or commercial misappropriation.

Eavesdropping and privacy laws may be invoked to prosecute unauthorized recording. Take the true tale of the enterprising Minneapolis journalist, ejected, along with others, from a meeting of a unit of the Board of Regents. He nevertheless managed to write an accurate account about what occurred during the session. A threatened criminal prosecution for illegal eavesdropping evaporated when his lawyer alleged that the gathering was conducted in violation of the state Open Meeting Law.

The participants in the meeting and law enforcement authorities alike were mystified how the reporter was able, without any leaks from insiders, to use verbatim quotes in his story.

To this day they were unaware that he did it the old-fashioned way: he put an empty drinking glass against the wall of an adjoining room and listened through it.

Try it; it works!

(Conflict alert: The writer represented the crafty reporter.)

Recording risks

Legality aside, secret recording is not without its risks. An employer may discipline or even fire an employee for doing so, particularly but not solely if there is an anti-recording policy in effect. However, the disciplinary action may be wrongful and warrant a civil lawsuit if the employee’s recording was undertaken in order to establish unlawful discrimination or other wrongdoing or done as a whistleblower.

The issues of law attendant clandestine recording, like most legal concerns, do not address the moral question: is it ethical to do so?

The answer, like those to many moral conundrums, often depends upon the circumstances and the perceptions of those responding to it.

Regardless of the answer, with the ubiquitous nature of covert recording these days from the streets of the city to the rooms of the White House, Big Brother is watching and listening to you and Big Sister is, too.


Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick, P.A.