In several states in the US, there exist wiretap laws regulating when it is illegal for citizens to record phone calls or conversations. Some states, like massachusetts,have a so called “two party consent law”. More accurately, the law makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium. Other states have a so called “one party consent law” which makes it illegal to record a conversation unless you are a party to the conversation, present during the conversation or discussion, or one party to the conversation consents.
A “two-party consent” law may be problematic as an example from massacusetts demonstrates (read about the Massachusetts wiretapping law here – with articles about wiretapping laws in other states to the right on the page). In a 2007 case, a political activist was convicted of violating the wiretapping statute by secretly recording video of a Boston University police sergeant during a political protest in 2006. The activist was shooting footage of the protestwhen police ordered him to stop and then arrested him for continuing to operate the camera while hiding in his cot. As part of the sentencing, the court ordered the defendant to remove the footage from the Internet.
Fro this case, it appears that you can violate the statute by secretly recording, even when you are in a public place. However, in a 2011 case, the U.S. Court of Appeals for the First Circuit held that recording police activity in the public is independently proteted by the First Amendment, and that it is unconstitutional for the state to prosecute those recording the police in public under Massachusetts’s wiretapping law; this ruling might protect secret as well as open recordings.
In 2012, however, the journalist behind a popular activism site was charged with three felony counts of wiretapping. Adam Mueller was indicted following a report he filed in response to an incident at a Manchester, New Hampshire high school last year that ended with a 17-year-old boy being slammed face-first into a table and detained for disorderly conduct and resisting arrest. Video footage of a school police officer picking up Harrington and assaulting him were leaked to Mueller, who followed up on his own and attempted to interview a Manchester police captain, the manchester High School West principal and a school secretary as part of his investigation into the incident. Mueller later used samples of those recorded phone interviews in a video report of the incident that he published into his website, and although he identified himself as a member of the media when approaching those officials for comment. he was charged with felony wiretapping for allegedly putting those conversations on tape without expressed permission.
On August 13, 2012, he was convited, but as this article shows, Judge Michael Valentine misinterpreted the law when Mueller was sentenced for a felony. At worst, he could be sentenced for a misdemeanor. And, of course, there is the question of the constitutionality of ste verdict.
In Illinois, a court ruling orders police not to enforce the state’s wiretapping law. Still, Chicago police continue to intimidate citizens from recording them in public. The Supreme Court has now rejected a plea to ban taping of police in Illinois.