Monday, March 24, 2014

Secretly record your spouse? More common in divorce cases and legal in Nebraska.

With all the hand-wringing, finger-wagging, document-leaking and late-night-comedian-joke-telling about the NSA and U.S. government collecting data on everyone’s phone calls and emails, one Nebraska family law attorney brought up a really good old-school question: is it okay to record your own phone calls when the other person doesn’t know it? Is that illegal spying too?

Angela Y. Madathil, a Nebraska divorce lawyer wrote in her blog “I have had several clients ask me if they can record telephone calls with their ex-husband or ex-wife.” My first reaction: the statement said a lot about the nasty nature of divorce these days.  Ms. Madathil doesn’t make any moral judgment of her clients or their estranged spouses armed with digital recorders. The clients ask, she explained, hoping to make use of the recording at just the right time in court. Apparently all’s fair in what-used-to-be love and war.

The legality, the ethics, and the advisability of making a secret recording are great questions. Reporters and lots of other professions wrestle with the same decisions. 

What’s are the rules in Nebraska?

First, to make it perfectly clear, the question here is whether a call can be recorded when one person is aware the call is being recorded and the other person is left in the dark. (Here's Nebraska's law.) If neither person knows the conversation is being preserved that is most definitely against the state and federal law unless someone (like an actual law enforcement agency) got a court order.

In her online write-up, Ms. Madathil distills the family law side of the issue more clearly and professionally than I can, so read all about it here.

There are a couple of other areas she doesn’t cover which I also find interesting.

If it’s legal to record your phone call, is it ethical? A few years ago a Nebraska lawyer asked the state’s Supreme Court for guidance. The high court has responsibility for issuing advisory opinions on ethical issues when requested.  In its opinion the justices said it’s a best practice to ask permission before punching the record button. However the opinion added if no law is broken “an attorney does not act unethically by recording a conversation with a third party without disclosure of such recording.”  

The American Bar Association added strict rules against secret taping in 1974 (heard of Watergate?) but dropped its prohibition in 2001.

Reporters may be the best practitioners, or worst offenders. It is often with good intentions. Yes, I have recorded people I’ve contacted without them knowing it, but I do so rarely. I have no problem justifying those few occasions as both a favor to the person being recorded in the hope of adding accurate quotes to a story. It also serves as a defense against the all too common “I never said that” reaction after a story airs. In my radio work for NET News I always ask before recording when I want to use an interview in a broadcast story. (But it's no small irony that if I recorded a phone call that I did not use in a broadcast I could quote freely from the conversation for an article on the NET News webpage.)

The tricky part for reporters, or anyone else, becomes when you’re talking to, and potentially recording the conversation with, someone from another state. These laws vary when crossing borders. Getting that surreptitious evidence on a spouse, or legal client, or news source in Nebraska may be legal inside the state border, but when calling Michigan or Montana or one of the ten other states you need consent from everyone on the line before capturing the call.

If you want more information about the guidance given journalists and the laws for recording calls in each state, check out the terrific guide prepared by the Reporter’s Committee on Freedom of the Press. You can download it here.

(And in case it’s not obvious, I am not an attorney and do not practice law so please do not consider this any form of official advice. Consult a real lawyer for advice!)