Monday, June 04, 2012

Noxious Creeping Part IV: By reading this, you've consented to audio surveillance

“(T)he erosion of freedom rarely comes as an all-out frontal assault but rather as a gradual, noxious creeping, cloaked in secrecy, and glossed over by reassurances of greater security.” – Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major expansion of government surveillance power.  They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through the legislature before it can get a thorough review from lawmakers and the public. The bill would make about a dozen changes to current law, many of which seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a series of posts. This post discusses a proposal to add a notice exception to the definition of “oral communications.” The new exception would allow anyone who gives notice of surveillance to record otherwise private conversations.

Part IV: By reading this blog post, you have consented to audio surveillance.

One of the most far-reaching proposals of HB 2400 creates a “notice exception” to the definition of oral communications.  Currently, the wiretap law bans recording most private oral communications. HB 2400 proposes a new rule that an oral communication isn’t private if the speaker has notice that it might be recorded.  In other words, as long as someone has notified you that surveillance may happen, you have no right to expect that your conversation is private.

This includes “actual notice,” which means you actually are aware that you may be recorded. It also includes “constructive notice.” That’s a jargony term meaning, “it’s written down on something that you were supposed to read.” Like a sign in the front office of a building, or in the back of the employee handbook. If HB 2400 passes, we can expect to see “you may be under surveillance” signs popping up all over. And you can expect to be under surveillance whenever you are not at home, whether you are out in public or not.

The notice exception makes it easy for anyone to remove any expectation of privacy in public and private space. Let’s consider a couple examples. An employer could post a sign about audio surveillance in the front office or in an employee handbook. Then the employees’ private conversations could be recorded in elevators, offices, shop floors, and lunch rooms. Don’t criticize the boss, and don’t talk about unionizing at work. 

The exception would apply in schools as well. The meetings of student groups such as the Gay-Straight Alliance might be recorded. Or administrators might decide to listen in on school newspaper meetings or student government meetings to make sure no one criticizes school policies.
Instead of the notice exception, the ACLU of Pennsylvania supports a different definition of “oral communications” that protects privacy rights. We ask the legislature to define “oral communications” as, “Any oral communication uttered by a person possessing a reasonable expectation of privacy in such communications.” Our proposal clarifies the current law rather than changing it significantly. Since 1998, Pennsylvania Courts have interpreted “oral communications” to cover only situations where the parties to a conversation had a reasonable expectation of privacy. See Agnew v. Dupler, 553 Pa. 33 (Pa. 1998). Our proposal would rewrite the current statute to make it crystal clear that a person’s “reasonable expectation of privacy” should remain the cornerstone of privacy rights in the wiretap act.

The “reasonable expectation of privacy” rule protects privacy where HB 2400 would threaten it. Instead of looking only to whether someone posted notice somewhere, courts interpreting the “reasonable expectation of privacy” rule look to all the circumstances surrounding a conversation. So even if the front office had a sign about audio recording, students might still be able to have a private conversation in a closed classroom, or employees might still be able to speak in an otherwise empty elevator without the boss listening. 

All of us—whether as employees, students, or in some other role—should have the right to hold private conversations from time to time, even if we are not at home. HB 2400, as it is currently written, would make this right a rare one. 

Nathan Vogel, Frankel Legislative Fellow, ACLU of PA

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