What Are The Legal Ramifications Of Videotaping Or Recording An Adverse Party's Telephone Conversations?
by ELIZABETH COUGHTER
Currently in Virginia, there are laws that prohibit the videotaping or filming of another and the illegal interception of a wire, electronic or oral communication. Virginia Code §18.2-386.1 makes it a crime to videotape, photograph or film a non-consenting person who is totally nude or clad in undergarments, or in a state of undress, so as to expose that person's private parts and the circumstances are such that that person has a reasonable expectation of privacy. On the other hand, there is Virginia Code §19.2-61 et. seq. which is the Interception of Wire, Electronic or Oral Communications Act which is similar to the federal proscription against such conduct. 18 U.S.C. §2510 et. seq. These wiretapping statutes may also apply to videotaping and are broader in scope than §18.2-386.1.
The wiretapping statute applies to certain videotaping which records oral communications. There are, however, exceptions to the prohibited conduct. Videotaping which lacks voice recording has not been prohibited by either state or federal law. Such videotaping commonly occurs in public places, such as retail establishments and banks. In addition, such videotaping may occur in one's home when one is attempting to film the actions of a nanny or daycare provider.
The unwary may believe that it is permissible to hide a video camera in one's home or elsewhere which also records the oral communications that took place during the videotaping. Such taping is prohibited under the wiretapping statute. Virginia Code §19.2-61 et. seq. mirrors, but is not identical to, 18 U.S.C. §2510 et. seq. There is no Virginia case that has addressed the illegality of videotaping someone without their consent and capturing the oral communications that take place during the videotaping. There is a consensus of law, however, that neither the state nor federal statutes applies to videotapes when the sound is not recorded because the wiretapping acts are intended to apply to aural transfers of the human voice. Audenreid v. Circuit City Stores, 97 F. Supp. 2d 660 (E.D. Pa. 2000) (employer permitted to videotape his employees without sound recording); People v. Drennan, 84 Ca. App. 4th 1349, 101 Cal. Rpt. 2d 584 (2000) (high school principal's office may be videotaped by the school board without sound recording). Videotaping would only be illegal if the sound is simultaneously recorded. Videotaping can take place anywhere and does not have to occur on one's private property.
If the videotaping does record sound, however, there are exceptions to the wiretapping act that could permit such interceptions. Virginia Code §19.2-62(B)(2) specifically exempts from the criminal offense of wiretapping a person who intercepts an oral communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such an interception. This same exception is found in the U.S. Code at 18 U.S.C. §2511(2)(d).
Aside from the statutory exceptions, there have been cases where a parent who has secretly taped the telephone conversations of his or her child with the other parent or other party and have been found not to be in violation of state or federal law. In those cases, the courts have determined that the child whose conversations were taped had provided vicarious consent to the recording through the parent who made the recording. In Pollock v. Pollock, 975 F. Supp. 974 (W.D. Ky. 1997), it was held that the mother who taped her child's telephone conversations with the father did not violate the federal wiretapping statute. The mother successfully argued that the taping of the phone calls was done with the children's consent, not actual consent, but vicarious consent. The mother, in fact, was consenting on behalf of her children. The mother was the primary physical custodian of the children at issue. The United States District Court reasoned that as long as the guardian (the mother in this case) had a good faith basis that is objectively reasonable for believing that it was necessary to consent on behalf of her children to the taping of the telephone conversations, vicarious consent is permitted in order for the guardian to fulfill a statutory mandate to act in the best interests of the children. Citing, Thompson v. Dulaney, 838 F.Supp. 1535 (Dist. Utah 1993).
In another case involving vicarious consent, the court recognized that a parent in a bitter custody dispute should be able to tape the conversations of the child with the other parent when such taping is made in good faith and in the best interests of the child. D'onofrio II v. D'onofrio, 2001 N.J. Super. LEXIS 365. In this New Jersey decision, the court found that such taping is not a violation of either state or federal wiretapping statutes. The court found compelling reasons to render its decision because the conversations were clearly taped in the best interest of the four children when the parent who was being taped used vulgar, obscene, profane and crude language, as well as, made comments that were denigrating and demeaning of the other parent. The recorded parent also discussed with her children the ongoing custody and divorce litigation which was not considered to be in the children's best interests.
Another exception to the wiretapping statutes is when there is not a reasonable expectation of privacy. The expectation of privacy will be lost when conversations are so loud that they can be heard through the common wall of two homes. In Commonwealth v. Louden, 536 Pa. 180, 638 A.2d. 953 (1994), the Supreme Court of Pennsylvania found that there was no violation of its state wiretapping statute when a sister-in-law recorded the obscene conversations, threats and arguments along with screams of the children that were emanating from her brother's home which was right next door to her own home. The two homes had a common wall. The conversations were loud enough to be heard through the common wall and, therefore, there was no expectation of privacy.
One should also be mindful of the evidentiary limitations to the use of recorded telephone conversations. If the conversation is recorded with consent of all parties to the conversation or if the recording contains admissions that would constitute criminal conduct, which is the basis for a civil action and one of the parties consents to the recording and it is not an action for divorce, separate maintenance of annulment, then such recordings shall be admitted into evidence in any civil proceeding. Virginia Code §8.01-420.2. This Code section also mandates that if the recording is being offered into evidence on the basis of the consent of all parties to the conversation, then such consent shall be noted at the beginning of the recorded portion of the conversation. On the other hand, state law strictly prohibits the use of illegally intercepted wire or oral communications in any trial, hearing or other proceeding. Virginia Code §19.2-65. Therefore, a recording with consent may be offered into evidence under limited circumstances in a civil action under the first statute. However, any recording that violates Virginia's wiretapping statutes is inadmissable for any purpose in any court according to the latter statute.
Finally, damages may be assessed for a violation of Virginia's wiretapping statute. Virginia Code §19.2-69. These damages include actual damages, punitive damages, and attorney's fees recoverable in a civil action against the person who does the illegal interception. Therefore, to avoid a wiretapping violation, the person recording the telephone conversation had better be a consenting participant to that conversation. The violation of the wiretapping act is also punishable as a class I misdemeanor. Virginia Code §19.2-63(C)(4).
The practitioner should also be aware of LEO Opinion No. 1738 which addresses the issue of whether an attorney or someone acting under an attorney's direction may ethically tape record the conversation of a third party without the third party's knowledge. This most recent LEO opinion dated April 13, 2000 reviewed all prior LEO opinions regarding similar issues. It cites the Virginia Supreme Court case, Gunther v. Virginia State Bar, 238 Va. 617, 385 S.E.2d 597 (1989) and ABA Formal Opinion No. 337 (1974).
Attorney Gunther was found to have violated the Virginia Code of Professional Responsibility when he directed an investigator to install a recording device on the telephone of his client's marital residence and which devise recorded any and all conversations. Mr. Gunther had been brought up on charges of violating Virginia's wiretapping statute and was acquitted on those criminal charges. This criminal acquittal, however, did not absolve him of unethical conduct. The Supreme Court upheld the finding that even though Mr. Gunther's actions were not illegal, that does not mean that they were ethical. In fact, his actions violated DR1-102(A)(4) which prohibits an attorney from engaging in conduct involving fraud, dishonesty, deceit or misrepresentation. This prohibited misconduct is now incorporated in Rule 8.4 of the Rules of Professional Conduct.
It would appear from this LEO that there are only limited circumstances in which an attorney may advise a client to record telephone conversations or in which the attorney himself may record such conversations. The two limited exceptions recognized in this LEO are where a lawyer engages in a criminal investigation or housing discrimination investigation. Under such circumstances, recordings are not unethical. The LEO also recognizes that it is not improper for a lawyer to record a conversation involving threatened or actual criminal activities when the lawyer is the victim of that threat. Therefore, although a client may wish to record a telephone conversation in which the client is a party and which is not violative of the wiretapping statutes, it may be unethical for an attorney to advise a client to make such a recording according to the most recent LEO opinion.
In conclusion, when advising a client on the risks associated with videotaping an adversarial party, the best advice is to record oneself in the videotaping or record the consent of the other party at the beginning of the recording. Absent your client's participation in the recordings or the express consent of the other party, turn the audio off and record by videotaping without worry. The recording of telephone conversations may present an ethical dilemma for the attorney, but is not illegal if the party performing the recording is a consenting party to it.
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