Despite the rapid advance of video and audio recording technology, laws regarding the use of these devices remain incredibly imbalanced. Recently, a story of a special needs student who recorded being bullied in the classroom has gained national attention because, despite his previous reports of bullying being ignored, the student is being prosecuted for recording the encounter due to Pennsylvania’s strict wiretapping law preventing recording in areas of expected privacy.
In March, just a few states over, the Massachusetts Supreme Court ruled that there was no statute on the books that would prevent publicly taking pictures underneath someone’s clothing without their knowledge. Clearly, states have not found the right balance of privacy and protection currently demanded by a society where nearly everyone carries around a phone capable of making audio and digital recordings. That is not to say finding such a balance is an easy task. With the popularity of apps like Snapchat, recording people without their knowledge has become all too common a practice.
To me, the two most important ideals over which we must maintain balance are personal privacy and the likelihood of whistleblowers. I have written several articles expressing my disturbance with the erasure of privacy in modern society, and I definitely feel the culture of recording people without their knowledge is a part of that. However, the right to record and report an instance of injustice is fundamental to a functioning society.
Sadly, states that are updating their wiretapping laws from the early to mid 20th century, are doing so in a way specifically targeting whistleblowers. Some so-called “ag-gag” bills, designed to stop animal rights activists from videotaping abuses at farms and slaughterhouses, were a direct response to last year’s influx of covert videos of animal abuse.
At the heart of this debate is the larger issue of regulation in reference to recording devices. Certainly legislators all across the U.S. want to halt the recording of private matters, as a citizen’s right to privacy has been a concern since the founding of this nation. However, by creating laws requiring two-party consent to being recorded, legislators have made it illegal to record abuses whether they occur at a farm, during a police encounter or even in the classroom.
Effectively, this forces any activist or citizen concerned with their wellbeing into a hearsay situation with an entity who likely holds much more power than they do. In such a struggle, it is rare that the individual’s voice is heard over the brute force of an institution.
Thus, the only way to have a law governing the recording of others is to ensure that there is a clear “whistleblower” exception to the law. In my mind, such an exception would safeguard all recorded events that were recorded for the purposes of whistleblowing, or in other words, recorded for the purpose of revealing an abuse of the law.
In addition to protecting activists, this type of exception would ensure that investigative journalists are able to break abuses to the public. As for the other side of this balancing act, recording others for the purposes of sharing the recording must be done with the knowledge of the party being recorded. The tricky realm of intellectual property law clearly applies to speeches, lectures, and presentations to support this strong aspect of a law.
As for personal conversation, a lesser of two evils approach must be applied. While covertly recording a conversation to reveal hate speech or other troubling views has certainly lead to advances in the dialogue concerning important issues, the potential to use and abuse covert recordings is far too great to allow recording without making the recorded party aware. This might be hard for “Snapchatters” to accept, but in the end, the right of privacy is far more important than a type of social interaction.