Privacy

5. Surveillance cases

People who object to having their conversations quoted in the media or to having their photographs published or broadcast often threaten to sue for invasion of privacy.  The courts have held, however, that in order to carry through successfully with such a threat, one must have a reasonable expectation of privacy.  The law requires people in public and semi-public places to assume that they may be photographed or recorded.  Indeed, it is often said that “what the eye may see, or the ear may hear, may be recorded and reported.”^[17]  In a typical case, a Washington state court ruled that a television crew did not “intrude” by shining lights into a pharmacy in order to film persons inside because the same persons could have been seen by any passerby who looked into the store from the street.^[18]

Likewise, courts have routinely upheld the media’s right to use traditional reporting techniques, such as asking questions of persons who have access to confidential information.^[19]  For example, a reporter who asks a college basketball coach about the SAT scores of a high school recruit does not commit an invasion of privacy, even though the coach has no legal right to disclose the information without the recruit’s permission.

Surveillance cases often turn on the specific circumstances in which the alleged intrusion occurs.  For example, in a 1971 case, Dietemann v. Time, Inc., two Life magazine employees used false identities to gain entrance to the home of an allegedly “quack” doctor.  Once inside, one of the reporters secretly photographed the “doctor”^[20] while the other transmitted their conversation with him to a recorder hidden in a nearby automobile.  A federal court held that the doctor’s residence “was a sphere from which he could reasonably expect to exclude eavesdropping newsmen.”^[21] The court also rejected the magazine’s claim that concealed cameras and secret recording devices are indispensable to investigative reporting and that their use is protected by the First Amendment.  In a passage that has been cited frequently, the court said:

The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office.^[22]

By contrast, in a Ky. case, a drug dealer told two newspaper reporters that an attorney had offered to arrange with a judge to keep her out of jail for a fee of $10,000.^[23]  The reporters gave the drug dealer a tape recorder, which the dealer concealed on her person during a visit to the attorney’s office.  During the conversation, the attorney asked the woman if she was carrying a tape recorder, but she denied it.  When the attorney sued the reporters’ newspaper for intrusion, the Ky. courts rejected his claim and distinguished his case from that of the doctor in Dietemann.^[24]  The courts said that because the attorney continued to talk with the woman even after he suspected that he was being recorded, he had a lesser expectation of privacy than the doctor did.^[25]

Intrusion claims often arise out of attempts to eavesdrop on telephone conversations.  Moreover, “bugging,” wiretapping and eavesdropping on telephone conversations are illegal under both N.C. and federal statutes.^[26]  The federal law, part of the Omnibus Crime Control and Safe Streets Act of 1968, makes it illegal to intercept not only traditional telephone conversations but also conversations and data transmitted via cellular telephones, electronic mail and satellites.^[27]

It is important to note that although state and federal law prohibit the interception, surveillance or recording of telephone conversations by third parties, neither N.C. law nor federal law prohibits your recording a telephone conversation in which you are a participant unless the recording is made “for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any state.”^[28] Also, the Federal Communications Commission requires broadcasters to give advance warning if a recorded telephone message is intended for broadcast.^[29]

This means that print reporters may lawfully record a telephone interview with or without the knowledge or consent of the other party. Broadcast reporters must seek consent if the recording is to be aired.        

Although it is illegal for someone who is not a participant to intercept or record a telephone conversation, journalists sometimes come into possession of tapes or transcripts made by eavesdroppers.  One such incident occurred in the 1992 N.C. gubernatorial campaign, when a supporter of one candidate used a police scanner to intercept a conversation between two supporters of the opposing candidate, one of whom was using a wireless phone.  When the taped conversation was given to reporters, the news media had to decide whether they could legally disclose the contents of the conversation.  It was not broadcast.  

In 2001, the U.S. Supreme Court ruled in Bartnicki v. Vopper^[30]  that a journalist’s disclosure of such a tape was protected by the First Amendment because the contents related to a matter of public concern and were lawfully obtained.  Although this ruling is helpful to journalists, reporters who acquire recordings of telephone conversations should consult with an attorney knowledgeable about First Amendment issues before publishing or broadcasting them.

References