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EXPECTATION OF PRIVACY: UNPACKING THE MYTHS FOR FIRST AMENDMENT AUDITORS

Updated: Dec 28, 2023

One of my favorite moments in a First Amendment audit occurs when someone tells the auditor “You don’t have my permission to record me.” The auditor inevitably responds, “There’s no expectation of privacy in public.”


woman in a phone booth representing right to privacy in public

Unfortunately, though, as we researched this issue, we found that the issue wasn’t quite as black and white as we had expected. The issue of recording in public spaces and the right to privacy in public is actually very complex and often layered with legal nuances that vary by jurisdiction.


The Misconception of Absolute Rights


While the First Amendment provides robust protection for activities such as recording in public spaces, it doesn’t grant an absolute right to record anything and everything. Legal protections against invasions of privacy can, and do, limit this right.


The landmark case, Katz vs. United States, is the most notable case in this area of law. Charles Katz used a public pay phone (remember those?) to transmit illegal gambling wagers to Boston and Miami. Unbeknownst to Katz, the FBI was recording his conversations via an electronic eavesdropping device attached to the exterior of the phone booth. Katz was convicted based on those recordings.


Happily for Katz, the Supreme Court overturned his conviction, stating that the FBI's actions violated his right to privacy and the Fourth Amendment, which protects against unreasonable searches and seizures. The case established that private conversations are protected, regardless of where they are conducted along with the principle that the Fourth Amendment protects people, not places. The court introduced the "reasonable expectation of privacy" test. According to the court, because Katz was in an enclosed booth, he had a reasonable expectation of privacy when he made his calls.


Nevertheless, the decision was not necessarily a hindrance to First Amendment auditors. While it established that there can be a reasonable expectation of privacy, by extension, it established that the expectation of privacy is limited in places where it’s not reasonably expected.


Understanding Contextual Privacy


In addition, the courts have determined that even in public settings, certain activities and areas are afforded privacy protections. For instance, using zoom lenses to peer into private residences, or recording in a way that captures private moments, is legally questionable and can be challenged. For example, in Kyllo v. United States (2001), the court ruled that using technology to view details of a home not visible to the naked eye is a search under the Fourth Amendment, requiring a warrant. While the case specifically addressed law enforcement's use of technology for surveillance and the need for a warrant, the principles established in the case may have broader implications for private citizens using recording devices, particularly when it involves recording in areas where individuals have an expectation of privacy.


The Fine Line of Consent Laws


Another gray area relates to one-party and two-party consent laws. These laws exist in many different forms across the country. One-party consent laws allow an individual to record a conversation they are part of without needing the other party's consent. In two-party consent states, all parties involved in a conversation must agree to the recording.


Given how often we hear “there’s no expectation of privacy in public,“ many First Amendment auditors might be surprised to learn that a number of states prohibit “wire, oral, or electronic” recording if not all parties have consented to the recording. Delaware, Florida, Maryland, Oregon, and Washington are some of the states with strong two-party consent laws. These laws refer primarily to audio recording. However, if the video recording includes audio and is in a context where the participants have an expectation of privacy, then the same one-party or two-party consent laws would likely apply to the audio component of that recording.


Many state laws have very specific exceptions and allowances. To be on the safe side, make sure you’re aware of the laws in your state to ensure you’re not crossing the line while exercising your First Amendment rights.


If you’re interested in learning more about state consent laws, www.recordinginlaw.com is a great resource.


Recording Public Servants


The final point, and one that should be reassuring to First Amendment auditors, is that the courts view recording public officials, particularly in public spaces when they are performing their duties, differently than they view recording private individuals. When it comes to public officials, the courts have favored the right to record. Landmark cases like ACLU v. Alvarez have supported the right to record police officers in the course of their duties.


Conversely, when it comes to private citizens, the right to record is more limited due to stronger privacy protections. Keep in mind that the courts have placed limits on recording private individuals without consent, especially in situations and settings where individuals have a reasonable expectation of privacy.


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The bottom line we suppose is a statement of the obvious. Recording in public is of course a critical tool for First Amendment auditors, but it should be conducted with an awareness of the boundaries set by privacy laws and the nuances of state-specific legislation. Usually, common sense in who and where to record will carry the day. But auditors have the responsibility to respect those laws and the privacy of individuals while exercising their right to record and to disseminate information in the public interest.


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