Article

Beware What You Say—Someone Might Be Recording It
by Christina L. Saveriano

It could be a casual conversation at a local restaurant or a conversation on a more important subject over the telephone, but both are subject to being recorded without your knowledge. Under the New Jersey Wiretapping and Electronic Surveillance Control Act (“Act”) N.J.S.A. 2A:156A-3, your conversation could be recorded and used without you even being aware of it having been done. As a result, you may want to be careful what you say and who you say it to.

The New Jersey Wiretapping and Electronic Surveillance Control Act

The Act provides that “any person who purposely intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication . . . shall be guilty of a crime of the third degree.” However, the Act is subject to several exceptions. The most important exception is that a party to the conversation can consent to the recording of the conversation. That means that although you may not be aware that the conversation is being recorded, the other party to the conversation effectively consents by recording the conversation. Under the Act, the party recording the conversation has no affirmative duty to advise the other party that the conversation is being recorded because only one party to the conversation has to consent to the recording.

Thus, you may not be aware that your friend, colleague, family member or even spouse is recording a conver- sation in which you are a participant. Indeed, you may think that you are having a private conversation with another party that you would not expect to be recorded or ever made public, but it is possible that your conversation could be recorded and used at a later time. The bigger issue is how this could later be used to your detriment. One example is the case of D’Onofrio v. D’Onofrio, a family action where the mother challenged the admission of audio tapes containing conversations between her and her children under the Act. The mother and father were involved in a custody dispute over the couple’s four children. The father taped telephone conversa- tions between the mother and their children. Those tapes were considered by the court in awarding the father custody of the parties’ children.

The court explained that “the taping of one’s own . . . conversation with another, while an ‘intercept’ within the meaning of [the Act] is [not a violation of the Act].” In that matter, the court recognized the “consent exception” included the right of a parent to vicariously consent to the recording of his or her child’s conversations. Thus, the tapes were properly admissible against the mother who was unaware that her private conversations with her children were being recorded.

Conversations in Public Under the Act

Further, any conversation occurring in public may be subject to recording. The issue is of greater concern now more than ever due to the increase in reality television programming. You never know where a television camera is lurking and picking up your conversation. With respect to the recording of such conversations, the courts have held that the recording is permitted either as an exception to the Act or due to the fact that the participants had no expectation of privacy because the conversation took place in a public area.

This issue was recently reviewed by the court in Kinsella v.Welch. In that matter, the plaintiff claimed that a news program violated the Act when the program’s producer videotaped the plaintiff in a hospital emergency room. While plaintiff was in the emergency room, NYT Television was taping a television program.

Under the consent exception, the court held that if the videotape recorded any communication between plaintiff and the Jersey Shore medical staff, the Act would not apply because Jersey Shore consented to NYT’s videotaping. The impact of that holding is that you could be recorded without your knowledge, and the recording is legal because someone else consented to the taping.

In addition, conversations recorded in public are not generally protected by the Act because there is no reasonable expectation of privacy with respect to conversations had in public. However, in cases where someone is challenging the recording of a conversation, the following factors are considered by courts to determine whether an individual had any reasonable expectation of privacy in publicly accessible places: (1) the volume of the communication or conversation; (2) the proximity or potential of other individuals to overhear the conversation; (3) the potential for communications to be reported; (4) the affirmative actions taken by the speakers to shield their privacy; (5) the need for technological enhancements to hear the communications; and (6) the place of location of the oral communications as it relates to the subjective expectations of the individuals who are communicating.

Conclusion

Under the consent exception to the Act is it is possible that you could be recorded by another without them having to advise you that they are recording your conversation. Such conversations could have an impact on you later and could be used in a legal proceeding.

If you have any questions regarding this or any legal matter, the experienced attorneys of Hill Wallack LLP are ready to assist you. Christina L. Saveriano is an associate in the Regulatory and Government Affairs and Complex Litigation Practice Groups.

Christina L. Saverianois an associate in the Regulatory and Government Affairs and Complex Litigation Practice Groups.