Covertly Recording Telephone Conversations
In this post, Fang Zhouzi recounted an incident in which a friend Sima Nan consulted him about whether to accept an interview with Southern People Magazine. Since Fang Zhouzi held the opinion that everyone that he has ever dealt with at Southern People Weekly Magazine is a crook without any professional ethics and personal morals, he told Sima Nan to decline so as not to provide another chance for distortion and rumor mongering. Thus, Sima Nan refused the interview.
But when the issue of Southern People Weekly Magazine appeared, Fang Zhouzi saw a small article credited to Sima Nan with the annotations: "Intern reporter Xu Zhenjiang organized this report based upon a telephone recording; this account has not been reviewed by the author." When Fang called Sima Nan, the latter was surprised. Fang read the article to him, and Sima realized that when the reporter called, he induced some replies which were surreptitiously recorded. So even though Sima Nan refused to be interviewed, the reporter still came up with a telephone interview.
Fang went on to note: According to American law, it is illegal to record a telephone conversation without the consent of the other party. There is no such law in China, but it is at least unethical action and immoral behavior.
In a follow-up post, Fang noted the reaction from someone who apparently think that such the United States does not have such restrictions on freedom. Fang noted that the various states have different requirements. In California, where Fang Zhouzi was, Criminal Law Article 631 says that all deliberate recording of telephone conversations without the other party's consent are violations that could result in not more than US$2,500 and/or 1 year in jail for the first offence. Law enforcement personnel acting with a proper court warrant are obviously except (and the President also thinks that he has the unilateral power to order wiretapping anytime without any basis).
What is the real deal here? See Reporters Committee for Freedom of the Press:
Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. A majority of the states and territories have adopted wiretapping statutes based on the federal law, although most also have extended the law to cover in-person conversations. Thirty-eight states and the District of Columbia permit individuals to record conversations to which they are a party without informing the other parties that they are doing so. These laws are referred to as "one-party consent" statutes, and as long as you are a party to the conversation, it is legal for you to record it. (Nevada also has a one-party consent statute, but the state Supreme Court has interpreted it as an all-party rule.)
Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Be aware that you will sometimes hear these referred to inaccurately as "two-party consent" laws. If there are more than two people involved in the conversation, all must consent to the taping.
Regardless of the state, it is almost always illegal to record a conversation to which you are not a party, do not have consent to tape, and could not naturally overhear.
If the aforementioned conversation with Sima Nan had taken place in New York State, it would be legal because the reporter has given consent.
I will recount some of my encounters with the American law in my previous life as a professional translator (see Translation and its Discontents). Most of the taped conversations took place in New York state, which has a "one-party-consent" statute. Thus, the protocol requires that the investigating officer begin with a preamble: "I am officer XXX with the Joint Federal Task Force Number X. In the matter of Case #XXXX, undercover officer ID UC12345 will be calling telephone number XXX-XX-XXXX. Do you, UC12345, give your consent voluntarily to have the conversation recorded?" "I do." A tape recording without this preamble may be challenged by the defense attorney, as it is not sufficient to give the consent retroactively.
Here, we have to give some credit to how criminals are often quite savvy about these surveillance laws. But the criminals fail because they made one key assumption -- trust.
For starters, wiretap orders are tied to specific telephone numbers (such as someone's home telephone). Therefore, criminals will often call each other from street telephone booths. A judge will not issue a wiretap on a public telephone, because this would intrude upon the privacy of other members of the public. A couple of decades ago, the strip along 14th Street in the Lower East Side of Manhattan, New York City was essentially the turf of drug dealers. They ran their businesses off the public telephone booths on the street. Actually, if a member of the public wanted to use to the street phone to make a call, they may be told by the drug dealers to get lost because it interfered with their conduct of business. That section of 14th Street was cleaned up eventually, and removing those public telephone booths had plenty to do with it.
But the monitoring that we are talking about here is not about fixed telephone numbers. This is about communication among individuals on the move. These individual know about the "one-party consent law" or "two-party consent law" and they realize that as long as they keep moving (use public telephones or hold in-person meetings in public places), they can't be effectively monitored.
So here is the most interesting conversation that I have ever translated (in the case of Taiwan's Bamboo Union gang with White Wolf, Yellow Bird, Little Tung and others):
Person 1: Do you think the police are listening in on us?
Person 2: How? We are calling each other from street telephones that we have never used before. They cannot be tapping the phone lines. Besides, this is a "two-party consent law" state, so they cannot listen in unless they have both our consent. You know that you haven't given consent, and I know that I haven't given consent. So they cannot listen in. Even if they did, the conversation cannot be used as evidence in court.
Person 1: Yes, I know that. I was just checking.
Of course, the trick was that one of the persons was working with the police and gave his consent before the telephone call was initiated. I leave it as an exercise as to whether it was (a) Person 1; (b) Person 2. Alternately, you can reject both (a) and (b) and assert that both persons were probably collaborating with different law enforcement groups and you just may not be wrong. It is truly rare for a case to break without some form of outside penetration or inside cooperation.
The standard Chinese saying is "The good guys rise up by a foot, but the bad guys rise up by ten feet (道高一尺﹐ 魔高一丈)." My experience was more like "The bad guys rise up by a foot, but the good guys rise up by ten feet (魔高一尺﹐ 道高一丈)." But then I only deal with the successfully investigated cases, whereas the total number of true crimes is unknown.
This does not illuminate about whether you want to be interviewed by Southern People Weekly Magazine ...