Do Wire Trapping Laws Apply To The 'I Hate America' Video?

One thing video surveillance professionals consistently warn about is the risks of using audio surveillance. This is because laws about recording people's speech (i.e., wiretapping) tend to be significantly tighter than recording what they do.

This week, social media went nuts when some American singer (or something) declared she hated Americans after licking a donut.

What's interesting for surveillance professionals is that the donut store evidently had a surveillance camera with audio being recorded. Here's the clip:

California, where this incident occurred is a two-party consent state, meaning the 'recorded' needs to know and agree to have their audio recorded. On the other hand, there sometimes is an exception if it is a public place, but it is unclear to us how this is applied / decided.

So, what do you think, audio surveillance is fair game in stores and restaurants?

I have not seen any pushback or criticism on the mainstream press or from the singer's people about the legality of the recording.


We just took over a Mobotix system that was installed in a retail environment. The owner had audio enabled on the cameras and said he was using it monitor the sales peoples converstions with the customers to make sure they were not saying things they shouldn't be. I explained to the customer he is opening himself up to legal issues but he was more intresting in making sure his employees are saying the right thing. Needless to say we did not configure the audio recording in the new VMS platform but he still has access to it direcly via his cameras.

Not related to CCTV but there was an intresting case locally that involved a meeting that was recorded with glasses with a built-in camera with audio.

Interesting topic.

I don't know the specifics of what 'consent' needs to be (legally) given by both parties, but could an establishment not simply have a sign at their entrance doors stating the you are on camera and by entering the facility you agree (consent) to have video and audio of you recorded?

This is from CA penal code 632(c) which addresses expectations of privacy in public places.

The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

So I'd argue there's no law violated here because there's a reasonable expectation that her comment would be overheard by an employee, other patron, etc.

At Louroe we see audio regularly go into fast food/QSR establishments in all 50 states, not just CA

And do Louroe customers provide any notice or warning about audio recording in two party consent states? Or do they just expect to be excluded by the 'public gathering' clause and therefore can ignore 'two party' consent?

Or do they just expect to be excluded by the 'public gathering' clause and therefore can ignore 'two party' consent?

Can it ignore one party consent also?

Remember, this device can easily record people talking privately when the owner or employees are not present, and if no one, but two patrons talking between themselves, are present is not a public gathering.

And zero parties to the conversation have given consent. Therefore this is 'third-party' recording...

Signs, I would think are necessary.

But are signs enough?

A reasonable person could say, "I didn't see the sign". They might be busy in conversation, they might be looking the other way, etc.

And if they are enough, how big or prominent do they need to be?

We include 2 of the pictured decals with every product we ship and offer them free of charge to anyone who wants extras. The decal is roughly 4"x4" and we offer them in English, Spanish, and French. Our recommendation is to always give notification where audio products are installed, regardless whether its a 1 party or all party consent state. Ultimately it's the end user's responsibility to use surveillance equipment (both audio and video) in accordance with federal and state laws. There's a reference on our website to all 50 state statutes and DC at http://www.louroe.com/support/audio-the-law-in-your-area. Some of these statutes are quite lengthly like California's and some are only a few sentences. Many are 40+ years old and haven't been updated to keep up with modern use of technology.

The difference between one party consent and all party is important, but it ignores whether or not there's an expectation of privacy in the first place. Take for example a cell phone recording of police in public in an all party state like California. It doesn't matter if the police have consented to the cell phone recording or not because there's no expectation of privacy in the first place. If you record a street musician it's not wiretapping because the musician is out in public. So the bigger consideration when using audio isn't one party or all party consent but whether or not there's an expectation or privacy to begin with.

And that is the tricky part - whether this is an expectation of privacy. For example, I am eating dinner at a restaurant, negotiating a business deal. Expectation of privacy or not? It's not a private home but it seems weird to think the restaurant can freely record audio of my conversations.

Secondly, how does a sign have any impact on whether there is or is not an expectation of privacy?

Secondly, how does a sign have any impact on whether there is or is not an expectation of privacy?

Assuming you read and understood it, you would not expect that you could say something without it being 'overheard'.

Restaurant example:

A. You are telling your friend over dinner about IPVM's Planned Massive Expansion. The waiter happens to be clearing dishes at that moment and overhears. Not a violation because you should realize you can be overheard.

B. You are telling your friend over dinner about IPVM's Planned Massive Expansion. The waiter happens to be standing motionlessly behind an opaque partition next to your table listening to your conversation. Violation because you reasonably assume you cannot be overheard.

"Assuming you read and understood it."

Sure, but you could reasonably argue that you did not read and understand, ergo why these things are typically done in writing or with verbal consent (e.g., 'this conversation will be recorded, do you understand?'). Just having a sign leaves open a lot of grey area, no?

Your A vs B example is not germane as I am referring to electronic, not human based surveillance.

Yes, just a sign or two may be risky, especially considering languages. Is there an international symbol for "Audio may be recorded"?

Your A vs B example is not germane as I am referring to electronic, not human based surveillance.

Yes germane, as the test for the expectation of privacy is the same, no matter how that privacy may be violated. In any event, just put a camcorder in the waiter's hand with a blinking red light if you need it to be electronic.

"Yes germane, as the test for the expectation of privacy is the same, no matter how that privacy may be violated."

But the waiter is moving around and, due to that motion, can reasonably be expected to accidently sometimes overhear something.

By contrast, the microphone / audio surveillance camera is mounted on the wall fixed.

In this instance the CA code calls out communication in public as not being considered private, but you're correct that sometimes it's difficult to ascertain whether or not a given circumstance can be considered private.

Signage is one form of notification to be sure that an expectation of privacy is removed. The most common form people encounter is "this call may be recorded for quality assurance." One could generally use the same rules of thumb as with video. Obviously don't put surveillance equipment in a restroom, but at the cash register you're probably expecting to be monitored.

"The most common form people encounter is "this call may be recorded for quality assurance."

That sounds reasonable because the person is on the phone listening directly.

However, not seeing a sign is a lot easier than not hearing a statement made vocally when you are on the phone.

Does the actual clip violate the wiretapping statute?

IMHO, no.

Are wiretapping laws being broken by this setup?

IMHO, yes.

Why?

Because the person saying 'I hate America' does not have a reasonable expectation of privacy in that case since it would appear that they are intentionally speaking loud enough that anyone could hear them, even strangers.

On the other hand, the setup HAS likely recorded people other times when they thought no one would hear them, for instance if someone were to say "this employee is stupid" in hushed tones to their spouse when the employee went in the back.

Edit: just saw Cameron's post, and I agree.

Extended treatment of the issues can be found in the discussion: Cops Hope CCTV Audio Catches Thief

Until we see an actual case on something with these exact details (or reasonably close) we won't know if it is legal/illegal. I would argue that most lawyers would not know if it was legal/illegal until they dug into it.

Here's an actual case from last month in Virginia. A man recorded his colonoscopy (audio only thankfully) and heard the doctors making insulting comments about him. It went to court for defamation and the use of the audio was challenged and the court upheld the admissibility of the recording.

To go back to the video above, I think every would agree there's a much higher expectation of privacy in a colonoscopy than there is in a donut shop.

Edit: Link to the article on the case

Cameron, you leave out a critical point mentioned in the article as well:

"The doctors’ attorneys argued that the recording was illegal, but the man’s attorneys noted that Virginia is a “one-party consent” state, meaning that only one person involved in a conversation need agree to the recording."

California is a two party consent state and Ariana Grande surely did not consent to her being recorded in the donut shop.

Btw, those doctors are incredibly mean-spirited and disgusting. Surely that did not help their case either.

That article actually leaves out a critical point about consent. Technically how was there even one party consenting to the recording?

The plaintiff made the recording by accident and was unconscious anyway. Hardly a 'party to the conversation'. So why wasn't the recording thrown out?

Because the judge decided he was a party to the conversation since some of the mockery addressed the patient directly, as if he could hear it. IMHO, that could decision could have went either way but, to your point, the viciousness of the worker's verbal assault did them in here. From Huffington Post:

Ingham's lawyer, D. Lee Rutland, argued unsuccessfully to have the recording tossed out of court on the theory that it was improperly recorded. In Virginia, a person can record a conversation to which they are a party without the consent of the other parties, but Ingham's lawyer argued that the patient was unconscious and not a party to the conversation at all. A judge rejected that argument after the patient's lawyer pointed out that Ingham directed some of her mockery directly at the patient while he was unconscious.

"A judge rejected that argument after the patient's lawyer pointed out that Ingham directed some of her mockery directly at the patient while he was unconscious."

I'm going to enroll in law school, graduate, pass the VA state bar, then offer my services to Ingram for free to appeal this moron judges ruling that an unconscious person can engage in a conversation.

...this moron judges ruling that an unconscious person can engage in a conversation.

You are obviously new to the forum. ;)

Wolfee Donuts in Lake Elsinor, CA - the scene of the lick:

Signs

I can't read that, but if it is the sign indicating audio recording it seems pretty well-positioned to be seen, since a persons face is literally directly in front of it as they open the door.

Can someone please 'enhance' this pic? I don't have Jack Bauer's email.

"if it is the sign indicating audio recording it seems pretty well-positioned to be seen"

And everyone is expected to read fine print when opening a door? I suppose if a judge buys that argument but reasonable people are going to be more focused on getting a donut than reading text on a door.

What is the legal threshhold for sign placement?

I'm sure it varies, but simply placing signs conspicuously or prominently would seem to suffice for most that the customer has been appropriately alerted I think. And my point was that the location that they chose (if this is indeed an audio recording notice) would seem to be good choice to negate the defense of 'I didn't see no sign'.

Should they make people sign waivers upon entering a business that they have read and agreed to each of the stores signs?

"but simply placing signs conspicuously or prominently would seem to suffice for most that the customer has been appropriately alerted I think."

Other signs:

  • If you come into my store, you agree to pay me $1000.
  • If you come into this restaurant, you agree to be filmed on my reality show without any compensation.
  • If you keep reading this web page, you agree to change your name to John Doe.

The alternative:

"Should they make people sign waivers upon entering a business that they have read and agreed to each of the stores signs?"

Yes. That's what consent typically means and reasonably functions as.

"Yes. That's what consent typically means and reasonably functions as."

Signage (prominently displayed) infers implied consent - just as staying on a phone call once alerted that the conversation is being recorded gives implied consent. No overt action (such as signing a document) is required.

Your examples all contain contractual obligations - which I would assume would require such a signed document.

"Signage (prominently displayed) infers implied consent"

This is some very risky legal advice, as it runs counter to most everything that is out there about wiretapping / audio surveillance.

Implied consent requires proof that the party being tapped / surveilled knew they were being so. Your specific example above of the small text over the donut store entrance, even if it said, "We are recording all conversations inside" would be at a high risk of failing implied consent for the reasonable counterargument that the person did not see it.

As this legal article notes:

"Implied consent is a possibility, but tougher to rely upon. Consent will not be casually implied, as the intent of the law is to protect individual privacy. Thus, an employee who has consented to the monitoring of calls for business purposes should not be considered to have given consent to monitoring of personal calls."

And here is a case where implied consent was allowed but specifically because the party admitted she knew she was being recorded:

"The Mississippi Supreme court rejected wife’s arguments that the tape recordings were illegally obtained finding “consent to interception of a phone call may be inferred from knowledge that the call is being monitored or taped.” The court went further stating “. . . [wife] had knowledge that her conversation was being taped as evidenced by her testimony that she had the impression that [husband] had ‘rigged’ the phone and wanted to ‘give him an earful’ for doing so.” As such the court held that wife had consented to the recordings."

So how do you recommend dealing with your client being sued because the person being recorded claims they did not see your sign?

So how do you recommend dealing with your client being sued because the person being recorded claims they did not see your sign?

Let's remember that this is a highly unlikely scenario in any case. To prevail in a civil lawsuit one would need to show minimally that:

  1. A communication was actually intercepted.
  2. The communication was of a private nature
  3. That the plaintiff had a reasonable expectation of privacy
  4. That damages were caused by the privacy violation

This case might come close, but even there number #2 and #3 are not clear.

In tort cases the decision often rests on what the judge or jury believes is 'reasonable', given the circumstances. Of course if it gets to trial the owner has already 'lost'.

But, IMHO, it is extremely rare that a case will have elements 1-4. Take out the superstar aspect of it and it is even rarer.

"In tort cases the decision often rests on what the judge or jury believes is 'reasonable', given the circumstances. Of course if it gets to trial the owner has already 'lost'."

Yes that underlies why legal advice typically is against using audio surveillance, because there is too much risk in what might if this did get to court.

Contrast to video, where, in the US, there is no legal concern for almost all locations save bathrooms / changing rooms.

Contrast to video, where, in the US, there is no legal concern for almost all locations save bathrooms / changing rooms.

For sure video recording is far less legally problematic than audio. Why do you suppose that society in general permits one and prohibits the other?

Video records what we do, but audio records what we think.

Legal question - 10 pts:

Are the requirements for recording video in a School for the Deaf any different than other schools?

Should they be?

Decent article on the legality of surveillance recordings and the feasibility of signage, with a California slant.

Highlights:

Both federal and California law prohibit the recording of only private oral conversations, meaning communications as to which participants have a reasonable expectation that no one is eavesdropping or recording the conversation.

California law is less developed on the issue of implied consent. While the case law suggests that consent could be implied in some instances, California's strong policy against recording private conversations probably will confine those instances within narrow limits.

Federal courts have been more willing than some state courts to hold that a conversation is not private if the conversation can be overheard by persons nearby. On the other hand, for example, California courts have held that persons engaged in conversations do not lose their expectation of privacy simply because others nearby may overhear the conversations.

Some businesses have considered posting signs in key locations to put persons on notice of audio recording. Such signs arguably would suffice to imply consent if the signs are extremely prevalent throughout the office space and emphasize that audio/video surveillance is occurring in all relevant locations of the office at all times. The signs should leave no room for doubt that persons entering the building should expect to have their conversations recorded. The posting of such signs might technically be feasible, but ultimately impractical, because the signs might well offend clients, customers, or anyone else who may have business in the building.

Short of obtaining the formal written consent of all persons who will be subject to the audio/video surveillance security system, there exists no certain way to employ such a system without risk of civil and criminal liability under federal and state law.

"Let's remember that this is a highly unlikely scenario in any case."

Has any business owner in the state of California ever been prosecuted under their wiretap laws for recording audio in a business with signage in place?

"The posting of such signs might technically be feasible, but ultimately impractical, because the signs might well offend clients, customers, or anyone else who may have business in the building."

20 Louroe signs, 1 on each wall, 1 on each door. Done and done. Everybody wins, except the terrified customers.

Thank you for sharing that which strengthens my point about the challenges of using signs to deliver implied consent.

Thank you for sharing that which strengthens my point about the challenges of using signs to deliver implied consent.

No problem, though I wasn't the one arguing signs would be enough, that was #2. In my view, you are better off with a perfunctory, inconspicuous sticker since it is highly unlikely that a recording could lead to a successful civil action for reasons I stated above, re: tort.

And even if it was brought to trial, the size and the number of stickers, IMHO, would not be key.