What May Be Recorded Without Your Consent?

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Surreptitious Recording of Telephone Conversations

Disclaimer: The information contained in this FAQ is provided for general information purposes only and is not intended to be a legal opinion, legal advice or a complete discussion of the issues related to the surreptitious recording.

Every individual's factual situation is different and you should seek independent legal advice from an attorney familiar with the laws of your state or locality regarding specific information.

Key Link:

http://uscode.house.gov/download/pls/18C119.txt

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We are often asked whether one party to a telephone conversation may tape record the conversation without the consent of the other party. A related question involves surreptitious recordings of employees or others by their employers or others using an extension telephone or similar device on the same premises. This area is subject to a patchwork of both federal and state regulation. Accordingly, it is necessary to look at both federal and state law; whichever law is more restrictive will generally be applicable. Federal law may preempt state law in certain instances. As noted below, an attorney should be consulted because of the complex interplay of different regulatory schemes.

Federal Law
The federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., prohibits the willful interception of telephone communication by means of any electronic, mechanical, or other device without an applicable exemption. There are two principal exceptions:

Federal Exceptions

Consent: In the absence of more restrictive state law, it is permissible to intercept and record a telephone conversation if one or both of the parties to the call consents (as long as the tape is not made for a tortious, criminal or otherwise illegal purpose such as blackmail). Consent means authorization by only one participant in the call; single-party consent is provided for by specific statutory exemption under federal law. 18 U.S.C. § 2511(2)(d).

"Business telephone" exception: The "business telephone" exception, which generally allows monitoring of calls and taping over an extension phone which is both provided to a subscriber in the ordinary course of a telephone company's business and is being used by that subscriber in the ordinary course of its business. This provision generally permits businesses to monitor the conversations of their employees, including personal conversations (although this result may vary depending on the federal circuit in which the taping occurs).

Penalties: The federal statutes provide criminal penalties for unlawful interception of telephone conversations, including up to five years' imprisonment or a maximum of $10,000 in fines. They also allow for civil remedies, by which private parties are entitled to recover actual and punitive damages, together with fees and costs. Violations of the Electronic Communications Privacy Act may also qualify for an award of minimum statutory damages of $10,000 per violation.

State law
State law most directly governs the propriety of any recording and is not consistent with regard to the availability of exceptions to the general rule against interception. In general, the state law of the state where the recording is made (rather than to which the call is placed, if different) will govern. If federal law is more restrictive than the state law of the place where the taping occurs, then federal law will generally be controlling. The following list includes all of the all-party-consent states (and some one-party states) as of March 14, 1994.

California: California prohibits telephone monitoring or recording, including the use of information obtained through interception unless all parties to the conversation consent. Cal. Penal Code §§ 631, 632. There is no statutory business telephone exception and the relevant case law all but excludes this possibility. California courts have recognized "implied" consent as being sufficient to satisfy the statute where one party has expressly agreed to the taping and the other continues the conversation after having been informed that the call is being recorded. Violation is punishable by a fine of up to $2,500, imprisonment for not more than one year, or both. A civil plaintiff may recover the greater of $3,000 or three times the amount of any actual damages sustained.

Connecticut: Under Connecticut law, recording without consent of at least one party is a Class D felony punishable by one to five years' imprisonment. Conn. Gen. Stat. § 53a-189. However, failure to obtain the consent of *all* parties is a statutory tort for which damages, costs and attorneys' fees may be recovered. Conn. Gen. Stat. § 52-570d. There are exception in the latter case for, among other things, recipients of extortionate or harassing calls.

District of Columbia: D.C. follows federal law. Single party consent is sufficient and potentially unlawful interception devices do not include telephone equipment furnished to a telephone company subscriber and used in the ordinary course of business. D.C. Code Ann. § 23-541 et seq.

Florida: Florida is a strict all-party-consent state. Fla. Stat. Ann. ch. 934 (Supp. 1980).

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Illinois: Illinois requires prior consent of all participants to monitor or record a phone conversation. 720 ILCS 5/14-2. There is a new specific business telephone exception, but in general courts have found extension telephones do not constitute eavesdropping devices. Criminal penalties for unlawful eavesdropping include up to three years' imprisonment or $10,000 in fines and the civil remedy provides for recovery of actual and punitive damages.

Maryland: Maryland is an all-party-consent state. Md. Cts. & Jud. Proc. Code Ann. § 10-402 (1980).

Massachusetts: Massachusetts requires consent of all parties unless another exception applies. Mass. Gen. Laws Ann. ch. 272, § 99. Telephone equipment which is furnished to a phone company subscriber and used in the ordinary course of business is excluded from the definition of unlawful interception devices. Id. at 99(B)(3). Office intercommunication systems used in the ordinary course of business are similarly exempt. Id. at 99(D)(1)(b). The criminal penalty is a fine of up to $10,000, imprisonment for up to five years, or both. In civil litigation, an injured party may recover actual and punitive damages as well as costs and fees. It is a separate violation to divulge or use the information garnered through unlawful interception and an additional penalty of up to two years in prison or $5,000 may be imposed on this count.

Michigan: Michigan's statute is ambiguous on its face, but judicial authority suggests that the consent of any one party is sufficient. MCL 750.539c; MSA 28.807(3); Sullivan v. Gray, 117 Mich.App. 476, 324 N.W.2d 58 (1982).

Montana: Montana is an all-party consent state. Mont. Rev. Codes § 94-8-114 (1973).

New Hampshire: New Hampshire requires the consent of all parties. N.H. Rev. Stat. Ann. §§ 570 A:2 (Replacement 1974).

New York: New York is a one-party-consent state. N.Y. Penal Law § 250.00. There is no business telephone exception; the New York Attorney General has taken the position that an employer must obtain the prior consent of one party before intercepting an employee's calls. Violation carries a maximum criminal penalty of four years' imprisonment. There is no civil cause of action.

Oregon: Oregon requires the consent of all parties. Or. Rev. Stat. §§ 165.540 (Replacement 1979).

Pennsylvania: Pennsylvania requires the consent of all parties. 18 Pa. Cons. Stat. Ann. § 5704(4), but surreptitious use of extensions for these purposes constitutes interception within the wiretapping statute. Felony penalties may be imposed for violation of the Pennsylvania statute.

Washington: Washington requires the consent of all parties. Wash. Rev. Code Ann. Sec. 9.73.030 (Supp. 1979).

Lawyers: Under ABA Formal Opinion 337 (August 10, 1974), and certain state and local opinions, it is generally unethical for an attorney to make an undisclosed recording of other persons.

FCC Rules: The FCC Regulations require telephone carriers to file tariffs with the Commission to the effect that: (1) adequate notice be given to all parties that their conversation is being recorded; (2) that such notice be given by the use of an automatic tone warning device; and (3) that the tone warning device be furnished, installed and maintained by the telephone company along specified technical guidelines. 11 FCC 1033, 1050, 12 FCC 1005, 1008 (1947). These regulations are directed toward the telephone carriers, and do not make recording a criminal offense. However, a person who fails to use the "beep" tone as required may have his telephone service terminated.

Evidentiary issues: Individuals and businesses that make surreptitious recordings often do so with the expectation that the recordings will be useful as evidence. Such recordings are subject to significant barriers to use as evidence. First, if made in violation of either federal or state law, the recordings will almost certainly be inadmissible. Second, even if lawfully recorded, the tapes will constitute "hearsay" and thus need to come under some exception to the hearsay rule in order to be usable for impeachment or other evidentiary purposes. Anyone contemplating an evidentiary use of surreptitious recordings should consult with an attorney prior to making the recording.

Conclusion: Because the law relating to surreptitious recording of telephone conversations varies from state to state, a person who may have valuable rights affected by such laws should consult with an attorney who specializes in such matters. The foregoing is intended to be a general summary, not an exhaustive treatise, and should in no event be construed as legal advice...

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United States Telephone Recording Laws
Legal Aspects of Recording Telephone Conversations: A Practical Guide

Introduction Why Record Telephone Calls?
Consent
The U.S. Laws
The US Federal Law
Evidentiary Issues
Recording Telephone Calls with Parties in Different Jurisdictions
The Role of FCC
State Laws (Table)
Interesting Facts About Recording Telephone Calls In Different States
References
The United Kingdom
Australia
Canada
The USA
Federal and State Laws

The U.S. 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 have also extended the law to cover in-person conversations. 38 states and the D.C. permit recording telephone conversations to which they are a party without informing the other parties that they are doing so.

12 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.

It is illegal under all jurisdictions to record calls in which one is not a party.

A complete state-by-state set of regulations regarding telephone call recording may be obtained in the following report published by The Reporters Committee for Freedom of the Press:

http://www.rcfp.org/taping/states.html

The US Federal Law

The federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510 et seq., prohibits the willful interception of telephone communication by means of any electronic, mechanical, or other device without an applicable exemption. There are two principal exceptions:

Federal Exceptions
Consent: In the absence of more restrictive state law, it is permissible to intercept and record a telephone conversation if one or both of the parties to the call consents. Consent means authorization by only one participant in the call; single-party consent is provided for by specific statutory exemption under federal law. 18 U.S.C. Sec. 2511(2)(d).


"Business telephone" exception
The "business telephone" exception, which generally allows monitoring of calls and taping over an extension phone which is both provided to a subscriber in the ordinary course of a telephone company's business and is being used by that subscriber in the ordinary course of its business. This provision generally permits businesses to monitor the conversations of their employees, including personal conversations.

Penalties: The federal statutes provide criminal penalties for unlawful interception of telephone conversations, including up to five years' imprisonment or a maximum of $10,000 in fines. They also allow for civil remedies, by which private parties are entitled to recover actual and punitive damages, together with fees and costs.

Evidentiary Issues
Individuals and businesses that make surreptitious recordings often do so with the expectation that the recordings will be useful as evidence. Such recordings are subject to significant barriers to use as evidence. First, if made in violation of either federal or state law, the recordings will almost certainly be inadmissible. Second, even if lawfully recorded, the tapes will be exempt from the hearsay rule and will not, in most jurisdictions, be usable for impeachment. Anyone contemplating an evidentiary use of surreptitious recordings should consult with an attorney prior to making the recording.

Recording Telephone Calls with Parties in Different Jurisdictions

Federal law may apply when the conversation is between parties who are in different states, although it is unsettled whether a court will hold in a given case that federal law "pre-empts" state law, but either state may choose to enforce its own laws. Therefore it is better to err on the side of caution when recording an interstate telephone call.

The Role of FCC

The FCC's role in assisting consumers who believe their telephone conversations were unlawfully recorded is generally limited to ensuring that telephone companies enforce their tariff provisions regarding recording of telephone conversations. The only penalty that can be enforced by the local carrier is revocation of telephone service. (In the Matter of Use of Recording Devices in Connection with Telephone Service)

The FCC protects the privacy of telephone conversations by requiring notification before a recording device is used to record interstate or foreign telephone conversations. These types of conversations may not be recorded unless the use of a recording device is:

Preceded by verbal or written consent of all parties to the telephone conversation; or
Preceded by verbal notification which is recorded at the beginning, and as part of the call, by the recording party; or
Accompanied by an automatic tone warning device, sometimes called a beep tone, which automatically produces a distinct signal that is repeated at regular intervals during the course of the telephone conversation when the recording device is in use.
Also, no recording device may be used unless it can be physically connected to and disconnected from the telephone line or switched on and off.
The above FCC rule requirements apply to telephone common carriers. Similar requirements are imposed on consumers through the carriers' tariffs.

State Laws (Table)
While the U.S. federal law only requires one-party consent, many states have accepted different laws. In some states all parties must give their consent or at least be notified that the call is about to be recorded (with necessary opt-out option: if you don’t like them to record the call, you can ask them to stop recording). There also was a case law decision from many years ago (the 1950's) that went to the Supreme Court and affirmed that the federal law does not supersede state authority/statutes unless the call or the tap crosses state lines – that is why each state went ahead and established their own guideline/statute.

States Requiring One Party Notification

Alabama
Alaska
Arizona
Arkansas
Colorado
District Of Columbia
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky Louisiana
Maine
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Jersey
New Mexico
New York
North Carolina
North Dakota
Oklahoma Oregon
Ohio
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
West Virginia
Wisconsin
Wyoming

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States Requiring Two Party Notification

California
Connecticut
Delaware
Florida Massachusetts
Maryland
Michigan
Montana New Hampshire
Pennsylvania
Washington

Interesting Facts About Recording Telephone Calls In Different States


Arizona
Arizona is a "one-party" state, ARS 13-3005.A(1)(2), and also permits a telephone "subscriber" (the person who orders the phone service and whose name is on the bill) to tape (intercept) calls without being a party to the conversation and without requiring any notification to any parties to the call, ARS 13-3012(5)(c).

Illinois
Illinois is, by statute, a two-party state. However, case law from both the IL Supreme Court and various Illinois appellate courts have declared Illinois a one-party state in the case of private citizens (businesses and plain folks - NOT law enforcement). The reigning consensus is that one-party consensual recording is merely "enhanced note-taking" and since some folks have total recall without recording, how can the other party have any expectation of privacy to a conversation held with another person.

Illinois requires prior consent of all participants to monitor or record a phone conversation. Ill. Rev. Stat. Ch. 38, Sec. 14-2. There is no specific business telephone exception, but in general courts have found extension telephones do not constitute eavesdropping devices. Criminal penalties for unlawful eavesdropping include up to three years' imprisonment or $10,000 in fines and the civil remedy provides for recovery of actual and punitive damages.

In the state of Illinois it is illegal to monitor cordless phones.

Wisconsin
Wisconsin is currently a one-party state though recent attempts in the legislature there have attempted, unsuccessfully so far, to change it to two-party. Even so, any evidence gathered by a one-party consensual recording is inadmissible except in murder or drug cases, as they say.

The Wisconsin Stats 885.365 Recorded telephone conversation (1) states "Evidence obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other number, shall be totally inadmissible in the court of this state in civil actions, except as provided by 968.28 to 968.37." Exceptions are it the party is informed before the recording is informed at the time that the conversation is being recorded and that any evidence thereby obtained may be used in a court of law or such recording is made through a recorder connector proved by the telecommunications utility as defined in WI Stats 968.28 - 968.37 (which is the stat for court ordered wiretaps) which automatically produces a distinctive recorder tone that is repeated at intervals of approximately 15 seconds. Fire department or law enforcement agencies are exempt as are court ordered wire tapes.

Also a recording on the phone made from a out of state call or made to an out of state party, has to have the party informed of the recording and his consent or the tone on line, every 15 seconds, or a consent in writing before the recording is started.

Needless to say this does not allow a person not a party to the conversation to record any part of the conversation without the parties to the conversation being informed the third party is recording the conversation.

California
Although California is a two-party state, it is also legal to record a conversation if you include a beep on the recorder and for the parties to hear. This information was included with my telephone bill.

California prohibits telephone monitoring or recording, including the use of information obtained through interception unless all parties to the conversation consent (California Penal Code Sections 631 & 632). There is no statutory business telephone exception and the relevant case law all but excludes this possibility. California courts have recognized "implied" consent as being sufficient to satisfy the statute where one party has expressly agreed to the taping and the other continues the conversation after having been informed that the call is being recorded. Violation is punishable by a fine of up to $2,500, imprisonment for not more than one year, or both. A civil plaintiff may recover the greater of $3,000 or three times the amount of any actual damages sustained.

Washington
Washington requires the consent of all parties. Some companies manage to work around that by going to the Indian reservations or any federally owned property to make the call - Federal law is a one party consent.

Indiana
In the state of Indiana it is one party authorization. As far as what is admissible in court it is still being tested per each case individually by the prosecutors office in the county in which the investigation or case was done.

New York
New York is a one party state, however some courts will not admit an interview with a witness to an event if they were not informed they were being recorded. Apparently the judge may use his discretion.

Pennsylvania

Pennsylvania requires the consent of all parties. 18 Pa. Cons. Stat. Ann. Sec. 5704(4) with the following exception: any individual may record a phone conversation without the other party's consent if:

The non-consenting party threatens the life or physical well being of the consenting party, or any member of his/her family.
The non-consenting party commits any criminal action (the statute specifically uses the example of telling the consenting party that they have marijuana they want the consenter to buy, but does state ANY criminal act).
Felony penalties may be imposed for violation of the Pennsylvania statute

Connecticut
Connecticut joined the ranks of two-party consent about 3 years ago. The State Police there is quite diligent in enforcing the law. Ironic, since they were the ones responsible for the law going into effect by illegally recording the telephone calls of prisoners at the individual barrack when arrested.

Massachusetts
Massachusetts requires consent of al parties unless another exception applies (Massachusetts Gen. Laws Ann. ch. 272, Sec. 99). Telephone equipment, which is furnished to a phone company subscriber and used in the ordinary course of business, is excluded from the definition of unlawful interception devices (Id. at 99(B)(3)). Office intercommunication systems used in the ordinary course of business are similarly exempt (Id. at 99(D)(1)(b)). The criminal penalty is a fine of up to $10,000, imprisonment for up to five years, or both. In civil litigation, an injured party may recover actual and punitive damages as well as costs and fees. It is a separate violation to divulge or use the information garnered through unlawful interception and an additional penalty of up to two years in prison or $5,000 may be imposed on this count.

References

Electronic Communications Privacy Act. United States Code. Title 18. Crimes And Criminal Procedure. Part I – Crimes. Chapter 119 – Wire And Electronic Communications Interception And Interception Of Oral Communications. http://floridalawfirm.com/privacy.html

The Reporters Committee for Freedom of the Press: A Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and D.C. http://www.rcfp.org/taping/

Broadcast of Telephone Conversations, 47 C.F.R. §73.1206 (1989)

P.L. 99-508 ("The Electronic Communications Privacy Act of 1986"), amending 18 U.S.C. § 2510 -...

18 U.S.C. § 2510 - ... (1999) (Wire and Electronic Communications Interception and Interception of Oral Communications)

FCC Consumer Information Bureau http://www.fcc.gov/cib/

“Recording Telephone Conversations” http://www.fcc.gov/Bureaus/Common_Ca...ts/record.html

“Interception And Divulgence Of Radio Communications” http://www.fcc.gov/Bureaus/Common_Ca...stigation.html

U.S. Department of Justice http://www.usdoj.gov/

USA Bulletin, September 1997 Vol. 45, No. 5, 6. Electronic Investigative Techniques I, II: http://www.usdoj.gov/usao/eousa/foia...m/usab4505.pdf, http://www.usdoj.gov/usao/eousa/foia...m/usab4506.pdf

Telephone Tape Recording Law. Ralph Thomas. National Association Of Investigative Spe******ts. http://www.pimall.com/nais/n.tel.tape.law.html

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here is the main link:


Sound Recordings As Evidence In Court Proceedings




INTRODUCTION

FEDERAL RULE OF EVIDENCE 901 (A) PROVIDES in general terms that the requirement of authentication or identification as a condition precedent to the admissibility of evidence is satisfied by proffered proof sufficient to support a finding that the matter in question is what its proponent claims it to be. A foundation for authentication of sound recordings was established in the federal courts in United States v. McKeever,*1* and upheld in cases such as United States v. McMillan.*2* In McMillan the court ruled that where a government agent testified that he heard the voice .of an informant at all times when he was making a recording of a telephone conversation, that this part of the conversation was accurate, and that immediately after the telephone calls were completed, a tape was replayed by the agent in the informant's presence to verify that the conversation had in fact been recorded and that the instruments were operating correctly, it was sufficiently established that the recordings were true and accurate as a basis for their admission in evidence.

In United States v. Kandiel,*3* the court ruled that any question concerning the credibility of a witness who identifies voices on a tape recording admitted into evidence simply goes to the weight which the jury accords the evidence, not its admissibility. Referring to McMillan the court said:
Applying [the McMillan case], we conclude that the government laid a proper foundation for introduction of the two cassette tapes into evidence. The tapes were found at appellant's home. Ahmed Kandiel [defendant's brother] testified that the tapes were made in Egypt and sent to appellant by their mother and father while Ahmed was living with appellant. The contents of the tape recordings have numerous references to people, places and activities that were corroborative of other testimony in the record. We believe the government has offered sufficient circumstantial evidence to establish the prima facie authenticity and correctness of the tapes. Furthermore we find that the government sufficiently established the identity of the speakers through the testimony of Ahmed Kandiel. Appellant's argument that Ahmed's credibility was suspect, and that therefore his testimony was insufficient to establish foundation for the admission of the tapes is with out merit. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, may be made "by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." Fed. R. Evid. 901(b)(5). Any question concerning the credibility of the identifying witness simply goes to the weight the jury accords this evidence, not to its admissibility. United States v. Kirk, 534 E2d 1262, 1277 (8th Cir. 1976), cert. denied, 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091 (1977). Our review of the record convinces us that the district court did not abuse its discretion in finding that proper foundation was laid for admitting the tapes. See United States v. Johnson, 767 E2d 1259, 1271 (8th Cir. 1985).*4*The cases are, therefore, now in general agreement as to what constitutes a proper foundation for the admission of a sound recording and indicate a reasonably strict adherence to the rules prescribed for testing admissibility of recordings, as set forth in McMillan.*5*

These rules can be summarized as follows:

The recording device must have been capable of taking the conversation now offered in evidence
The operator of the device must be competent to operate the device
The recording must be authentic and correct
Changes, additions or deletions have not been made in the recording
The recording must have been preserved in a manner that is shown to the court
The speakers must be identified
The conversation elicited was made voluntarily and in good faith, without any kind of inducement.*6*

THE BASIC PROCESS

OVER THE PAST 35 YEARS, ATTORNEYS HAVE UTILIZED THE basic process set forth in McMillan to create cases for admission of tapes or, on the opposition side, to deny admission of tape evidence.

This process involves the following elements:

Capability of the recording device:

this first requisite may be fulfilled simply. The very existence of the tape recording proves that the recording device was functioning and capable of duplicating sounds.*7*


Competency of the operator:

today most people know how to operate a tape recorder so this step is almost automatic. In United States v. McCowan,*8* the agent merely testified that he learned how to use the recorder on the day he made the tapes. The fact that he successfully made the recordings satisfied the competency requirement.


Authenticity and correctness of the recording:

authentication is satisfied by evidence sufficient to support a finding that the matter in question is "what its proponent claims,*9* as decreed in Federal Rule of Evidence 901. The standard for correctness of a recording is whether "the possibility of misidentification and adulteration [is] eliminated, not absolutely, but as a matter of reasonable probability."*10*

Preservation of the recording with no additions, deletions or changes:

an aural overview of the tape allows the court to hear signs (i.e., gaps) which might indicate tampering. If there exist signs of tampering, a forensic expert is often consulted. If there are no signs of tampering, a proper chain of custody documentation may suffice.*11*

Chain of custody:

this fifth step has created stumbling blocks for proponents of admissibility. The proponent for the tape's admittance can assure the court that the item offered as evidence is substantially the same as it was originally by documenting its "chain of custody." A proper chain of custody begins with consecutively numbered and dated tapes. Careful logs are then kept which note the time of particular conversations and the locations on the tapes at the time of occurrence. These evidence tapes are sealed and stored in separate envelopes and appropriate chain of custody records are maintained by the evidence custodian. *12*


Identification of the speakers:

Federal Rule of Evidence 901(b)(5) states that: "Voice identification is adequate if made by a witness having sufficient familiarity with the speaker's voice." The rule goes on to clarify that familiarity may be obtained previous to or after listening to the recorded voice. This standard for voice identification has been upheld in cases such as United States v. Rizzo, United States v. Bonanno, and United States v. Hughes)*13*

Voluntary elicitation of the recorded conversation:

as long as one participant in the conversation is aware that he is being recorded, the tape fulfills this final requirement. This means that a defendant's Fourth Amendment rights are not violated when the conversation is electronically monitored by a government agent with consent of the government informant in the investigation.*14*

SL: What?
That is how, preciselu, the Police State infringes on the Constitutional Rights of the People!


Not so?

Look at that, "with consent of the government informant"....
how about consent of the People?...


That is how, precisely, the Police State infringes on the Constitutional Rights of the People!


Not so?

Look at that, "with consent of the government informant"....
how about consent of the People?...

When did the People give the Police State more rights than to themselves?
Insanity of the dictatorship of the Feudal Lords posing as Democracy in the name of the People, while acting in their Titles of Nobility:

1. the minions of the State,
2. the Esquires,
3. the "Lords" -

the evil trifeca....

We are the People... begin they Proceedings, while they do what can to take the rights of the People
away and annex to themselves, getting their rewards for being the minions of the Apparatus to Suppress and Control -
which is the essence of any violating liberties Policing State.

That is the Truth and nothing but the Truth, so help us God!
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ADMISSIBILITY OF INAUDIBLE SOUND RECORDINGS:




IT IS A GENERAL RULE THAT A sound recording is admissible unless the inaudible portions or omissions are so substantial as to render the recording as a whole untrustworthy as evidence.*15* It has further been established that the question of admissibility of audible portions of tape recordings, when certain portions were inaudible, was properly addressed to the discretion of the-trial court.*16*

RECENT COURT RULINGS

THE HISTORICAL PROCESS SET OUT ABOVE, AS FIRST ESTABLISHED in United States v. McMillan, is widely used today even though several recent court decisions provide more relaxed rulings on admissibility. For example, in United States v. Traficant*17* the court stated that:

"Recent cases have developed more flexible standards for the admission of tape recorded conversations. The most important criterion for admission is that the tapes accurately reflect the conversation which they purport to record .... This evidence may be circumstantial or direct, real or testimonial, and need not conform to any particular mode." Therefore, according to the more liberal admission rulings, a tape recording may be admitted into evidence if a proper chain of custody is proven. Or, if the chain is not strong enough, the proponent of the tape may submit it to a qualified forensic expert for authentication. In United States v. King,*18* the United States Court of Appeals for the Ninth Circuit characterized the elements of the process as "useful, but not dispositive guidelines for determining when a proper foundation for the introduction of sound recordings has been made." The Ninth Circuit said that the trial court, in the exercise of its discretion, must be satisfied that the recording is accurate, authentic and generally trustworthy.


EXAMINATION REQUESTS AND REQUIRED EQUIPMENT

WHEN AN AUDIO TAPE IS SUSPECTED OF HAVING BEEN TAMPERED with, it may be forwarded to a qualified forensic audio spe******t for authentication. Prosecutors often request investigation of deficiencies in the previously mentioned process.

Examples of such problems are:

Credibility questions relating to the tape recorder operator
Chain-of-custody contradictions
Differences between the content of the tape and testimony of what was said.
Most often, however, a forensic expert is contacted when the tape is believed to have been altered or tampered with. Due to the nature of the allegations surrounding tampering issues, the examiner will requirements specific items from the party.

The Federal Bureau of Investigation, for example, has a protocol of required information, including:

The original tape

The tape recorders and related components used to produce the recording
Written records of any damage or maintenance done to the recorders, accessories and other submitted equipment
A derailed statement from the person or persons who made the recording, describing exactly how it was produced and the conditions that existed at the time, such as: 1. Power source, including a portable generator or drycell batteries; 2. Input, such as telephone, radio frequency transmitter/receiver, miniature microphone, etc.; 3. Environment, such as telephone transmission line, restaurant, apartment, street, etc.;4. Background noises, such as television, radio, unrelated conversations, computer games, etc.; 5. Foreground information, such as number of individuals involved in the conversation, general topics of discussion, closeness to microphone, etc.;6. Magnetic tape, such as brand, format, when purchased, whether previously used;7. Recorder operation, such as number of times turned on and off in the record mode, type of keyboard or remote operations for all known recorded events, use of voice-activated features, etc.
A typed transcript of the entire recording or, if that is not available, transcriptions of the portions in question. The items listed above are examples of what is required by a forensic expert as she begins an examination of questioned audio recordings
Extraneous voices: background voices which at times appear to be as near as the primary voices (these can, at times, even block the primary voices).

TECHNICAL DEFINITIONS

CERTAIN TECHNICAL DEFINITIONS SHOULD BE UNDERSTOOD by prosecutors and others in considering the technical process of examining sound recordings. They include the ones listed below.

FALSIFICATION OF TAPES

A QUALIFIED FORENSIC EXPERT DETERMINES AUTHENTICATION by performing a number of scientific tests which detect evidence of tampering or falsification. The four basic types of tampering are these:

Deletion: the elimination of words or sounds by stopping the tape and over-recording unwanted areas
Obscuration: the mixing in of sounds of amplitude sufficient to mask waveform patterns which originally would show stops and starts in inappropriate places
Transformation: the rearranging of words to change con- tent or context
Synthesis: the adding of words or sounds by artificial means or impersonation.


ELECTROMECHANICAL INDICATIONS OF FALSIFICATION

THESE ARE SOMETIMES REFERRED TO AS "ANOMALIES" AND include the following:

Gaps: segments in a recording which represent unexplained changes in content or context (a gap can contain buzzing, humming or silence)
Transients: short, abrupt sounds exemplified by clicks, pops, etc. (transients may indicate tape splicing)
Fades: gradual loss of volume (fades can cause inaudibility and are considered gaps when the recording becomes fully inaudible)
Equipment sounds: inconsistencies of context caused by the recording equipment itself (common equipment sounds include hums, static, whistles, and varying pitches)


DETECTING FALSIFICATIONS

A FORENSIC EXPERT IS TRAINED to detect falsifications and to authenticate sound recordings. The expert correlates his observations of anomalies with machine functions to interpret events in the following ways.

Critical listening: this involves the use of human analytical capabilities to locate anomalies. The forensic expert listens with proper headphones to the original tape using high-quality analytical equipment. He first performs a preliminary overview of the original tape and notes events, including starts, stops, speed fluctuations, and other variations requiring further investigation. He then examines recorded events and categorizes them as environmental or non-environmental. After examining recorded events, the expert analyzes background sounds. He listens for abnormal changes, absences or the presence of environmental sound. The final phase of critical listening is an extensive audit of the foreground information. He concentrates on voices, conversations and other audible sounds. Here anomalies include sudden changes in a person's voice, abrupt unexplained topic change or strong foreground interruptions indicative of obscuration. The initial forensic process of critical listening provides foundation and direction for later intensive instrumental tests.

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Physical inspection:

the forensic expert next inspects for tampering with thorough visual inspection of the tape itself. She inspects the housing for pry marks, welding, size, label and date, consistent with the alleged recording date. She also measures the tape and assures that the splicing of the magnetic tape to the leader is consistent with a normal manufacturing process. Any other splices are noted as possible alterations.
Magnetic development: direct visual observation of the "developed" tape is conducted to find track widths, the type of recorder used and the presence or absence of residual speech signals.


Spectrum analysis:

specialized computer equipment and programs to produce a visual interpretation of a frequency- versus-amplitude and frequency-versus-amplitude-versus-time displays. This allows the expert to view the entire spectrum or to zoom in on an area of particular interest thereby helping to characterize the acoustic quality of anomalies and identify their source.
Waveform analysis: a computer generated display representing time-versus-amplitude of recorded sounds in graphic form. With such analysis the expert can often measure signal return time, which reveals how long a recorder had been turned off. He can identify record- mode events, including the measurement of record-to- erase-head distance, determination of the spacing between gaps in multiple-gap erase heads and inspection of the signature shape and spacing of various record event signals.

Recorder performance:

various electrical and mechanical measurements of standard and modified recorders for use in finding possible origins of buzz sounds, hum, etc.

CONCLUSION

IN ORDER TO SUBMIT SOUND RECORDINGS AS EVIDENCE IN court, a prosecutor or other attorney must establish that the tape is an authentic representation of the conversation it is said to record. The traditional method of establishing authenticity involves maintaining a chain of custody which logs all persons, times and locations concerned in the creation of the tape. Then, the tape must be officially sealed and stored to complete a proper chain of custody. However, even if this procedure is strictly observed, there may still be challenges to the tape's authenticity.

The recording may contain inconsistencies suggestive of tampering. In such cases, a prosecutor may consult a qualified forensic examiner to inspect the tape. The examiner would initially listen critically for signs such as gaps, transients fades, equipment sounds or extraneous voices which indicate tampering. Then she would utilize other methods like physical inspection, magnetic development, spectrum analysis and waveform analysis to discover anomalies.

It is relatively easy to change the content of a recording by deleting words or sections, by obscuring meaning with over-recorded sounds, or by transforming context through rearrangement of selected phrases or by adding additional words through synthesis. Nevertheless, falsifications normally leave detectable magnetic and waveform acoustic signatures which can lead to forensic individualization of the evidential recorders and tapes.

End notes:

1 United States v. McKeever, 169 E Supp. 426, 430 (S.D.N.Y. 1958), rev'd on other grounds, 271 E2d 669 (2d Cir. 1959).
2 United States v. McMillan, 508 E2d I01,104 (8th Cir. 1974), cert. denied, 42 1 U.S. 916 (1975); see also United States v. Kandiel, 865 E2d 967,973-974 (8th Cir. 1988), cert. denied, 487 U.S. 1210 (1988); Todisco v. United States, 298 E2d 208 (9th Cir. 1962).
3 United States v. Kandiel, 865 E2d 967,973-974 (8th Cir. 1988),cert. denied, 487 U.S. 1210 (1988).
4 Kandiel, 865 E2d at 974.
5 McMillan, 508 E2d at 104.
6 Id. at 104.
7 United States v. Moss, 591 E2d 428, 433 (8th Cir. 1979); United States v. McCowan, 706 E2d 863 (8th Cir. 1983).
8 McCowan, 706 E2d at 863.
9 Zenith Radio Corp. v. Matsu****a Electrical Industries Co., 505 E Supp. 1190 (E.D. Pa. 1980), and Finance Co. of America v. Bankamerica Corp., 493 E Supp. 895 (D.C. Md. 1980).
10 Gass v. United States, 416 E2d 767,770 (D.C. Cir. 1969); United States v. Haldeman, 559 E2d 31 (D.C. Cir. 1976).
11 United States v. Faurote, 749 E2d 40 (7th Cir. 1984).
12 United States v. Craig, 573 E2d 455 (7th Cir. 1977), cert. denied, 439 U.S. 820 (1978).
13 United States v. Rizzo, 492 E2d 443 (2d Cir. 1974), cert. denied, 417 U.S. 944 (1974); United States v. Bonanno, 487 E2d 654 (2d Cir. 1973); United States v. Hughes, 658 E2d 317 (5th Cir. 1981).
14 United States v. White, 401 U.S. 745 (1971); United States v. Bonanno, 487 E2d 654 (2d Cir. 1973); United States v. Bishton, 463 E2d 887 (D.C. Cir. 1972); United States v. Quintana, 457 E2d 874 (10th Cir. 1972), cert. denied, 409 U.S. 877 (1972); United States v. Holmes, 452 E2d 249 (7th Cir. 1971), cert. denied, 405 U.S. 1016 (1972).
15 United States v. West, 948 E2d 1042 (6th Cir. 1991); People v. Rogers, 543 N.E.2d 300 (Ill. 1989); State v. Rodfiguez, 583 N.E.2d 795 and. 1972).
16 United States v. Enright, 579 E2d 980 (6th Cir. 1978); United States v. Gordon, 688 E2d 42 (8th Cir. 1982).
17 United States v. Traficant, 558 E Supp. 996, 1002 (N.D. Ohio, 1983).
18 United States v. King, 587 E2d 956, 961 (9th Cir. 1978)

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http://caselaw.lp.findlaw.com/script...frame=ri ght2




New York State Consolidated Laws : Criminal Procedure


ARTICLE 700--EAVESDROPPING AND VIDEO SURVEILLANCE WARRANTS

Section
700.05 Eavesdropping and video surveillance warrants; definitions of
terms.
700.10 Eavesdropping and video surveillance warrants; in general.
700.15 Eavesdropping and video surveillance warrants; when issuable.
700.20 Eavesdropping and video surveillance warrants; application.
700.21 Temporary authorization for eavesdropping or video surveillance
in emergency situations.
700.25 Eavesdropping warrants; determination of application.
700.30 Eavesdropping and video surveillance warrants; form and content.
700.35 Eavesdropping and video surveillance warrants; manner and time
of execution.
700.40 Eavesdropping and video surveillance warrants; order of
extension.
700.50 Eavesdropping and video surveillance warrants; progress reports
and notice.
700.55 Eavesdropping and video surveillance warrants; custody of
warrants, applications and recordings.
700.60 Eavesdropping warrants; reports to the administrative office of
the United States courts.
700.65 Eavesdropping and video surveillance warrants; disclosure and
use of information; order of amendment.
700.70 Eavesdropping warrants; notice before use of evidence.

S 700.05
Eavesdropping and video surveillance warrants; definitions of terms.
As used in this article, the following terms have the following
meanings:
1. "Eavesdropping" means "wiretapping", "mechanical overhearing of
conversation," or the "intercepting or accessing of an electronic
communication", as those terms are defined in section 250.00 of the
penal law, but does not include the use of a pen register or trap and
trace device when authorized pursuant to article 705 of this chapter.
2. "Eavesdropping warrant" means an order of a justice authorizing or
approving eavesdropping.
3. "Intercepted communication" means (a) a telephonic or telegraphic
communication which was intentionally overheard or recorded by a person
other than the sender or receiver thereof, without the consent of the
sender or receiver, by means of any instrument, device or equipment, or
(b) a conversation or discussion which was intentionally overheard or
recorded, without the consent of at least one party thereto, by a person
not present thereat, by means of any instrument, device or equipment; or
(c) an electronic communication which was intentionally intercepted or
accessed, as that term is defined in section 250.00 of the penal law.
The term "contents," when used with respect to a communication, includes
any information concerning the identity of the parties to such
communications, and the existence, substance, purport, or meaning of
that communication. The term "communication" includes conversation and
discussion.
3-a. "Telephonic communication", "electronic communication", and
"intentionally intercepted or accessed" have the meanings given to those
terms by subdivisions three, five, and six respectively, of section
250.00 of the penal law.
4. "Justice," except as otherwise provided herein, means any justice
of an appellate division of the judicial department in which the
eavesdropping warrant is to be executed, or any justice of the supreme
court of the judicial district in which the eavesdropping warrant is to
be executed, or any county court judge of the county in which the
eavesdropping warrant is to be executed. When the eavesdropping warrant
is to authorize the interception of oral communications occurring in a
vehicle or wire communications occurring over a telephone located in a
vehicle, "justice" means any justice of the supreme court of the
judicial department or any county court judge of the county in which the
eavesdropping device is to be installed or connected or of any judicial
department or county in which communications are expected to be
intercepted. When such a justice issues such an eavesdropping warrant,
such warrant may be executed and such oral or wire communications may be
intercepted anywhere in the state.
5. "Applicant" means a district attorney or the attorney general or if
authorized by the attorney general, the deputy attorney general in
charge of the organized crime task force. If a district attorney or the
attorney general is actually absent or disabled, the term "applicant"
includes that person designated to act for him and perform his official
function in and during his actual absence or disability.
6. "Law enforcement officer" means any public servant who is empowered
by law to conduct an investigation of or to make an arrest for a
designated offense, and any attorney authorized by law to prosecute or
participate in the prosecution of a designated offense.
7. "Exigent circumstances" means conditions requiring the preservation
of secrecy, and whereby there is a reasonable likelihood that a
continuing investigation would be thwarted by alerting any of the
persons subject to surveillance to the fact that such surveillance had
occurred.
8. "Designated offense" means any one or more of the following crimes:
(a) A conspiracy to commit any offense enumerated in the following
paragraphs of this subdivision, or an attempt to commit any felony
enumerated in the following paragraphs of this subdivision which attempt
would itself constitute a felony;

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FISA Court rejected Bush surveillance applications?

A report from UPI claims that Bush decided to eavesdrop outside of FISA because the FISA court, in 2003 and 2004, began modifying, and even rejecting, applications by the Bush Administration for surveillance at an unprecedented rate. From the Intelligencer:


Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.

The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an acknowledged authority on the supersecret NSA, which intercepts telephone calls, e-mails, faxes and Internet communications.

Government leaks in this matter thus far have been quite suspect, and one would be well-advised to go to the original source rather than relying on newspaper accounts of them. The story purports to rely upon "Justice Department reports to Congress" but it's unclear whether the referenced reports are public or not. What makes this article a bit difficult to believe is this bit:



To win a court-approved wiretap, the government must show "probable cause" that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that "may" involve a violation of criminal law.

Faced with that standard, Bamford said, the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States.

It is hard to believe, to put it mildly, that the FISA court refused to allow surveillance on "dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States." If someone were communicating with a "targeted al-Qaida suspect," they presumably were considered to be that by virtue of some evidence of their communications with al-Qaida, which would easily prompt approval by the FISA court for surveillance (not to mention that it is equally hard to believe, at least, that this Administration knows of "dozens of people" in the country "who were communicating with targeted al-Qaida suspects" and did nothing other than apply for warrants to eavesdrop on them).

And it is worth mentioning that this "stingy FISA court" excuse for violating FISA did not arise until now -- more than a week after initial disclosure of this program and all sorts of entirely different excuses for eavesdropping outside of FISA have been offered up by the Administration. Similarly, the FISA court's rejection of a few applications would hardly explain a wholesale refusal to comply with FISA -- the creation by the Administration of a whole new eavesdropping program designed to exist secretly outside of the law -- as opposed to proceeding with eavesdropping in those handful of cases where the FISA court refused to allow it.

But really, none of this actually matters. There is no doubt that Bush defenders will sieze on these types of reports as though they constitute some sort of justification for Bush deciding to eavesdrop in violation of FISA. To preempt that illogic, let's review a few basic principles again.

In a constitutional republic, the President does not have the right to break laws simply because he believes the law in question is a bad law or because he believes that he has a good reason for breaking the law. Nor does he have the right -- once a court refuses to give him authorization -- to do exactly that which the law clearly states he can do only with judicial approval.

Bad laws can be changed just as easily as they were enacted, especially by a President whose political party controls both houses of the Congress. If the FISA standards were too stringent to permit the Executive branch to engage in the surveillance it believed it needed to engage in, then the President could have sought changes to those standards (the way he did after 9/11 when the Patriot Act was enacted, which, in part, liberalized FISA in obvious anticipation by the Congress that FISA would continue to serve as the framework for our surveillance efforts). Or he could have sought a judicial determination -- including from the secret FISA court -- declaring that he did not have to comply with FISA.

But he did none of that. Instead, at least according to this story, when the court ruled that he was not permitted under the law to engage in the surveillance he wanted to engage in, he went ahead and did it anyway. That behavior is the very definition of lawlessness.

We are likely to start seeing all sorts of leaked stories like this designed to illustrate how imperative it was for Bush to eavesdrop outside of FISA. But none of that matters to the issue at hand. What the rule of law means is that nobody, including the President, has the right to violate it -- to engage in criminal conduct -- just so long as they find a good excuse for having done so once they get caught.