Liability of Illegal Recordings - Wireless Recorder/Transmitters

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Paul F

Veteran
There was an interesting thread on another forum discussing actor's having private conversations when wired with a transmitter that also records. The point was, does a person wearing a wireless transmitter have a 'reasonable expectation of privacy' (as the law prescribes). when they are wearing a wireless microphone. It's illegal to record a person that has 'a reasonable expectation of privacy'.

The Reporters Committee (thanks Jim Feeley) https://www.rcfp.org/reporters-recording-guide/california/ provides some guidance, by state. But there are no clear cut answers.

Ok, so it's debatable whether an actor or TV talent off-set, would expect privacy. My guess is they should not expect privacy. But Jim Feeley came up with the scenario of a person wired with a transmitter that is always recording. If such a person is talking to another person off set, that other person probably has a reasonable expectation of privacy. Therefore, it would seem that any recordings of the conversation are illegal. Essentially, the actor/talent is wearing a wire.

What raised the issue on the other forum is that the recording contained a conversation that had something to do with sexual harassment.

For many years when wiring people, I've told people to consider their off-set conversations as not private. But this is a whole other thing. People are now wearing a wire.

Interesting issue.
 
I have been doing it since 1980, in the UK, the sound people NEVER even mention that conversations are not private, and no sound engineer with a career ever considers revealing what they know. It's a question of trust. Actors tend to be easily worried and they simply don't want to even think about this. A few who recognise the privacy issues that could happen simply ensure when they are miked up, they are aware of the fact somebody could be listening. Sadly, I have had to lose a sound person for revealing private info. Absolutely the worst gross misconduct they could have done. I personally have heard people saying really nasty and untrue things about me personally, and you need to split this off, so when you next talk to them, you do not reveal you know, and let them, know you know - if you see what I mean. In real terms though, I doubt anyone has a legal expectation of privacy, when they don a device that broadcasts their speech - and often the talent does not have access to the controls. I'd bet that this would wreck any expectation of privacy. Only an idiot would assume radio mics were selective on conversations.

In real legal terms, in the UK, wireless mics used professionally are licensed and come under the control of the Wireless Telegraphy Act, and one of the small print sections covers the interception of communications, which essentially says if you hear something not intended for reception by the person transmitting, and make this public or known to others, an offence has been committed. I don't think anyone has been prosecuted, but anyone who recorded a bootleg recording via wireless, could be prosecuted under the Act and passing information acquired to a third party would also be an offence. Here - the clearly is a legal path for action, and I'd bet the FCC in the US have something similar, although I wonder, as in the US listening to the Police, Fire and emergency services is legal, and broadcasters get stories that way. We cannot do that in the UK, and couldn't;t even when such comms were not encrypted as they are now.
 
All true, but that's not the point. I derailed the discussion by bringing up my anecdote which has nothing to do with the issue. Being that with transmitters recording all day, private conversations are being recorded and now, someone has made an issue of it regarding something to do with sexual harassment. There is an expectation of privacy by a third party having a private conversation in a hallway, outside, in a dressing room and unknowing that the actor is wired. The transmitter file is accessible by the producers, director, and post house. They may here something that leads to an action such as is the case that brought up this discussion.

A recording was made that had a conversation that had something to do with sexual harassment. Let the lawsuits fly.

Clearly, it is illegal to record the private conversation as the third party fully has an expectation of privacy. Well, at least a lawyer who sees a pot of gold could make a strong case. Is it an issue? Probably not in 99% of the recordings that will be made. But in this case it has become an issue.

Regarding my anecdote, I've done many election broadcasts and in those cases, I've always reminded politicians that their conversations are not private. Many a politician has been upended by a hot microphone.
 
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One of our prime ministers or senior minister did just this after a head on clash with an old lady who berated him, and he blew up when in the ‘privacy’ of the official limo.

I can’t advise not knowing US law. An accidental recording of an incident I think would be valid here. It’s legal to have a gun in the US but not legal to record somebodies words? Even if it confirms they broke the law? Wow.
 
paulears said:
I can’t advise not knowing US law. An accidental recording of an incident I think would be valid here. It’s legal to have a gun in the US but not legal to record somebodies words? Even if it confirms they broke the law? Wow.
Click to expand...

I'm no expert on UK law, but this site makes it sound that things are sort of similar in the UK and much of the US. Perhaps there are different senses of when the offense/illegality occurs (as in: For the US, when a recording is made without consent of all parties, in the UK when the recording is released/shared without consent of all parties).

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https://recordinglaw.com/recording-laws-uk/

UK Audio Recording Laws for Individuals
According to the Regulation of Investigatory Powers Act 2000 (RIPA), recording conversations without consent in the UK is legal provided the recording is done for personal use, this includes telephone conversations.
However, problems can arise when such recorded conversations are shared to third parties without the consent of the participants of the conversation. It is an offence to sell recorded conversations to third parties or make public such conversations without the consent of the participants in the conversation.
Can Recordings Obtained without consent be used as evidence in court?
According to The Civil Procedure Rules which govern legal proceedings in England and Wales, courts may use their power to dismiss evidence that would otherwise be admissible.
====

There's another section on that page that covers "Interception of Communications" that might maybe perhaps apply to our use of wireless transmitters and recorders (OK, and body pack recorders and recorders/transmitters). Interesting reading, but I don't know how it would play out in real cases.

But to Paul E's (I think) main point, we all overhear stuff that's basically private. For example, actors complaining about directors, producers, ADs, screenwriters, producers, and producers. But just like HMU, wardrobe, drivers, and the rest, we should keep that stuff private, stop recording if we can, and otherwise act as we and our systems didn't overhear anything.

In the specific case Paul F talks about, my (hazy) understanding is the recording happened when the cameras weren't rolling. So did the person wearing the Zaxcom tx/recorder have a reasonable expectation of privacy? My guess would be (that a lawyer could argue) yes.

The incident didn't occur in California, but since that's where I live, I'll quote part of RFCP's summary of Calif law:

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https://www.rcfp.org/reporters-recording-guide/california/

In-person conversations
All parties to any confidential communication must give permission to be recorded, according to California’s eavesdropping law. Cal. Penal Code § 632(a). The law, however, specifically excludes from its application any conversations occurring in public places or government proceedings open to the public, or where the participants could reasonably expect to be overheard or recorded. Cal. Penal Code § 632(c).

[snip]

Civil suits
Under the state’s eavesdropping and wiretap laws, anyone injured by an illegally recorded or disclosed in-person or telephone conversation can recover civil damages of $5,000 or three times the actual damages, whichever is greater. Cal. Penal Code § 637.2. The court may also impose injunctions preventing the use of illegally obtained information. Cal. Penal Code § 637.2(b).
====

RCFP is writing for journalists. But I'd guess for us, the issue is don't record between takes (and IIRC, you can remotely turn off recording on Zaxcom's recording transmitters). That gets trickier for reality and documentary...

Or to riff on a popular aphorism:

Dance as if nobody is watching.
Record as if you'll be sued or deposed.


Jim "been threatened with being subpoenaed...mainly to harass me" Feeley
 
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paulears said:
Doesn't this cause grief with Ring Doorbells and security systems that record audio?
Click to expand...

Great question. I'm no expert, but when we were looking for some security cameras, I learned about some of the privacy and consent issues around Ring. Briefly, Amazon was (is?) accused of giving police access to videos recorded on customers' Ring systems without first being shown a warrant (or getting consent from the Ring customer, iirc). And since we wanted to have a camera in our back yard....

The civil-liberties group, Electronic Frontier Foundation, has been doing some work in this area. Here's something they wrote a few months ago:

New EFF Report Shows Cops Used Ring Cameras to Monitor Black Lives Matter Protests
LAPD Wanted Unknown Amount of Video for Unknown Reasons – Raising First Amendment Concerns
https://www.eff.org/press/releases/n...atter-protests

And there's this from 2020 case in New Hampshire (a state in the northeast of the US):

Judge: Audio from Ring doorbell can be used as evidence in Rochester shooting case
[snip]
[Judge] Howard used the legislative history of New Hampshire’s wiretapping statute to help clarify his statements. He said that in 2012, during the amending of the definition of “oral communication,” a proponent testified that if a person is on the street, acting in public, they cannot expect privacy.

If that person is huddled next to another person talking privately, putting a directional microphone on them to pick up the conversation from 30 feet away is violation of privacy, the proponent testified.
https://www.unionleader.com/news/cri...22fbcdc2f.html


So it looks like for states with all-party consent laws, there can sometimes be an issue. But I'm not up to date on issues around Ring and other home security cameras. Perhaps someone else here is.
 
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People where I now work have been sacked for off air remarks and there is now a strict discipline in place. As sound supervisors we are part of that making sure that mics are not left open or available for recording.

The presenters are all trained to turn their radio mics off and as one always says:

"You are never alone with a microphone"

Gordon Brown our Prime minister was caught out as was good old Donald trump with his cat grabbing remarks so it is down to the individual to make sure that they either mind their words or remove any devices when not required.
 
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