Body worn cameras (BWC) continue to grow in popularity across industries as everyone from law enforcement departments and healthcare teams to retailers are seeing the value of implementing a body worn camera program. Despite this growing popularity, there continue to be concerns around privacy and audio recording.
In another article, we tackled some of the concerns around privacy and are now going to take a similar approach to looking at audio recording. Much of the hesitation stems from 18 U.S. Code Chapter 119, or as it’s more commonly known, “The Wiretap Act,” which focuses on the interception and sharing of communication without consent. Because this is a federal law, it applies to everyone, whether law enforcement or the general public. And since body worn cameras can record audio, this topic comes up in every conversation around implementation and often becomes a sticking point, especially for organizations operating in two party consent states.
If you have experience working with security cameras and know the limitations surrounding audio recording with those devices, this hesitation should come as no surprise. The goal of this article is to provide you with the information you need to work with your legal teams to navigate the challenge of audio recording with body worn cameras. As you read the article, you’ll find that even with the current laws in place, body worn cameras, even when used as intended, may fall outside the scope of U.S. federal law.
Origins of “The Wiretap Act”
The origins of 18 U.S. Code Chapter 119 can be traced all the way back to the 18th century and the Laws of England. During that time, the act of eavesdropping, which was the literal act of standing under the eaves of another’s house to secretly hear a conversation, was greatly looked down upon. However, it wasn’t until 1860 with the installation of the first intercontinental telegraph line that the first laws came about to protect the physical lines and criminalize the act. And then came the American Civil War.
The American Civil War led to a rapid expansion of telegraph technology, as it was an important tool to communicate information to the battlefront. In turn, both sides began physically tapping into the lines to intercept secret communications about troop movement and supplies, thus giving birth to the term “wiretap.” A history of wiretapping in the U.S. can be read in Brian Hochman’s book, The Listeners: A History of Wiretapping in the United States. Throughout this book, Hochman discusses how the U.S. got to where it is today and more importantly for our discussion, how the way laws are written and specific words are used has impacted the interpretation and application of audio interception laws.
Prior to 1934, there were no federal laws against wiretapping. It wasn’t until a landmark case, Olmstead vs the United States in 1928, that the demand for a federal law grew. Olmstead was a bootlegger during the Prohibition era who was caught because of a government wiretap. His case was appealed all the way to the Supreme Court, where his defense argued that Olmstead’s Fourth and Fifth Amendment rights had been violated. Ultimately, the Supreme Court ruled that because there was no physical trespass, the government agents had not violated Olmstead’s rights. This case became the catalyst for the Communications Act of 1934 and the formation of the Federal Communications Commission (FCC). The Communications Act of 1934 was the first step in creating a federal law banning any person, not authorized by the sender, from intercepting and sharing communications.
Interpretation of laws
Word choice matters. Words are what give legislative experts room to interpret different laws. While the Communications Act of 1934 laid important framework for protecting against the interception of communications, the language used to write it was subject to various interpretations, which led to additional court cases and ultimately four additional revisions to get to where we are today.
One case that led to revisions of the Communications Act of 1934 was Nardone vs. the United States in 1937. Nardone, another bootlegger, had his calls intercepted by wiretap experts, who then shared information with government agents. Based on that information, the government agents were able to gather additional evidence against Nardone. In the first trial, Nardone was found guilty as the lower courts ruled in favor of the government, since the government was not the one that intercepted that information.
The way the Communications Act was written, a person may not intercept and divulge communications they are not privy to. In this case, the lower courts ruled the Communications Act did not apply, since the government was not the one who intercepted the communication, and the word person did not apply to federal law enforcement agents. The case was appealed to the Supreme Court, where it was ultimately ruled that the government had indeed violated the Communications Act and went on to further state that any evidence gathered as a result of the intercepted communication was inadmissible.
However, it wasn’t until the 1968 Omnibus Crime Control and Safe Streets Act, in which Title III was introduced, that communication protections for citizens from unlawful wiretaps were clearly outlined. This new language clarified what was permissible and when, including when law enforcement was allowed to use wiretaps under judicial review and watch. This bill introduced the concept of one-party consent, in which one person, privy to the conversation, must consent to it being recorded. It also established that the law is violated only if the recording is done without consent and in a secretive manner, which is frequently defined as “surreptitious”.
Case Law Examples
As we established at the beginning of the previous section, words matter and the choice to repeatedly reference surreptitious in court cases will continue to be important as we discuss cell phones and body worn cameras. 18 U.S. Code Chapter 119, and the word surreptitious played a major role in the trial outcomes of two major cases that are frequently referenced when it comes to audio recording.
Massachusetts, a two-party consent state, has two significant cases that we’re going to look at. In the case of the Commonwealth vs. Hyde in 2001, Hyde was pulled over by police and prior to the officers approaching the window, Hyde took a voice recorder and hid it out of site. The traffic stop resulted in both parties sharing some aggressive verbal communication but ended with Hyde being let go with a warning. Later, Hyde went to make a complaint about the officers and introduced the recording as evidence. The police subsequently filed a criminal complaint as they felt Hyde violated the federal audio recording laws. Upon adjudication the judge sided with the government as Hyde intercepted the communication in a “surreptitious” manner without consent.
In Glik v. Cunniffe in 2011, Glik, who was a member of the public, was passing by a group of law enforcement officers, who were in the middle of an arrest. Glik recorded the incident with his cellphone, which was recording both audio and video. He was then arrested by the officers and charged with illegal recording of audio in violation of the federal “wiretap” statue. The courts later dismissed this charge because Glik was not recording in a secretive manner, as his phone was in clear view.
These two cases are referenced in a 2016 statement by the ACLU of Massachusetts on cell phone recording of police and body worn cameras. In it, they state body worn cameras, when used in the course of normal police duty and in plain view do not violate wiretap laws.
Consent and Body Worn Cameras
The language used in writing 18 U.S. Code Chapter 119, has led many police departments, even in two-party consent states, to determine that their officers are not required to get consent before recording with their body worn cameras. As long as the body worn camera is in plain view, and not recording in a surreptitious manner, consent should not be required. Worcester Police Department’s body worn camera policy reads, “BWC officers are not required to notify citizens in areas where a citizen does not maintain a reasonable expectation of privacy”. The LAPD have a similar policy, “Officers are encouraged to inform individuals that they are being recorded when feasible. Officers, however, are not required to obtain consent.”
Closing
18 U.S. Code Chapter 119 applies to both law enforcement and public/private entities. Any end user that is considering a body worn camera program but is concerned about violating audio recording consent laws, should sit down with their legal team and review this information, as it could help move the program forward.
Body worn cameras have become an invaluable asset for law enforcement and public/private entities. One should not stall or not consider a body worn camera program due to expectation of privacy concerns or the fear of violating federal audio recording laws. As long as proper policies and procedures have been written, quality training is available to employees, and a thorough review of local laws has been done, a body worn camera program can (and should) become a vital asset to your organization helping to improve workplace safety and operational efficiency, no matter what state you are operating in.
