Legislator Introduces Bill To Legalize Recording Of Conversations With Feds

from the has-its-problems,-but-still-an-improvement dept

“Accountability” is a word often tossed around by government officials in an effort to appear trustworthy and genuine. However, this is seldom followed up by action. Everyone agrees it’s a fine principle, but far too idealistic to apply to the realities of governing, apparently. Rep. Lynn Jenkins seems to both 1) believe the government needs more accountability and 2) be willing to do something about it.

On Wednesday, Jenkins introduced legislation that she says would expand the rights of Americans to record their conversations with federal employees. Under current law, people are only able to lawfully record certain in-person conversations with IRS officials.

But under Jenkins proposal, that law would be expanded to allow people to record both in-person and phone conversations with most agencies in the executive branch. It would also require these government officials to tell people they have the right to record these conversations.

Jenkins’ bill would cover conversations with personnel from a large number of agencies that fall under the “executive agency” label, which would include agencies from the Dept. of Justice and Dept. of Defense, among others.

The specifications of the bill allow individuals to record what could be loosely termed “protective” recordings — the sort of recording that would prevent “he said/agency said” discrepancies further down the road.

Any employee of an Executive agency who is conducting an in-person or a telephonic interview, audit, investigation, inspection, or other official in-person or telephonic interaction with an individual, relating to a possible or alleged violation of any Federal statute or regulation that could result in the imposition of a fine, forfeiture of property, civil monetary penalty, or criminal penalty against, or the collection of an unpaid tax, fine, or penalty from, such individual or a business owned or operated by such individual, shall allow such individual to make an audio recording of such in-person or telephonic interaction at the individual’s own expense and with the individual’s own equipment.

This would seem to cover conversations with such federal agencies as the ATF, DEA and the especially recording-shy FBI, the latter of which still prefers to use its own pen-and-paper accounts of “interviews.” Unfortunately, even though these agencies (along with the DHS) fall under the “executive agency” banner, the bill’s list of exceptions would seem to make almost every conversation with these agencies off limits.


(1) CLASSIFIED INFORMATION, PUBLIC SAFETY, CRIMINAL INVESTIGATION.—This section shall not apply to any in-person or telephonic interaction—

(A) that is likely to include the discussion of classified material;
(B) that is likely to include the discussion of information that, if released publicly, would endanger public safety; or
(C) that, if released, would endanger an ongoing criminal investigation if such investigation is being conducted by a Federal law enforcement officer (as defined by section 2 of the Law Enforcement Congressional Badge of Bravery Act of 2008) who is employed by a Federal law enforcement agency.

The “endanger public safety” exception is nothing more than an out for any agency remotely concerned with “fighting terrorism.” This pretty much allows the DHS to prevent recording of conversations, even if the subject matter would seem to be completely unrelated to terrorist activity. Furthermore, the wording allows ANY agency to decide what will or won’t “endanger” the general public, with the likelihood being that most conversations carry that potential.

The FBI (along with the ATF, DEA and others) will be able to use exception (C) to prevent recordings, as almost all of these agencies’ conversations will pertain to some sort of ongoing investigation.

Jenkin’s bill may push accountability on some federal agencies, but the ones with the most worrying track records probably won’t feel a thing. It would be extremely tough to sell this bill without the exceptions, but their inclusion severely undercuts the stated aim.

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Comments on “Legislator Introduces Bill To Legalize Recording Of Conversations With Feds”

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Anonymous Coward says:

Why have that conversation at all?

Am I the only person wondering why government agencies would be talking about “classified material”, “information that, if released publicly, would endanger public safety”, or information that “would endanger an ongoing criminal investigation” with a private citizen?

Haven’t they already let the cat out of the bag by discussing it with that person, who is under no obligation to keep anything secret? What’s the harm in the recording, at that point?

Anonymous Coward says:

Re: Why have that conversation at all?

It is harder to paint a recording as a raving lunatic, when reporting to the upper echelons about cases.

At the same time, they cannot redact information they do not want in the public hands.
Often investigations involve keeping secret certain evidence that only the criminal would know about, to better be able to remove overclaimers. It is a fact that word of mouth is a very distortive and crude way of spreading information. A recording is neither crude nor distortive…

Anonymous Coward says:

Re: Why have that conversation at all?

Keeping someone from recording any conversation that they are involved in is unenforceable anyway. They can try to restrict what you can do with the recording once you have it but trying to keep you from recording it at all is a fool’s errand. Especially if you don’t tell them you are recording it in the first place.

The Real Michael says:

How generous...

So let me get this straight. We live in a (supposedly) free society wherein the NSA spies on all our communications, violating our Constitutional rights without reprisal, yet for some unfathomable reason we require the government’s permission in order to record a conversation with federal employees in the executive branch? Yeah, that makes sense, about as much as getting beat up at school, having your lunch money stolen and then being handed a lollipop.

To hell with that. Give back what you unrightfully stole.

Anonymous Coward says:

Re: Re: How generous...

Because it’s that whole “we’re the dictator and you’re the willing peasants” type of democracy.

Democrats idea of “democracy” is to beat its people with it until they submit. How else do you explain the whole Obama Administration attitude when the spying scandal exploded.

Anonymous Coward says:

There already is a federal law...

Although some states require both parties of a conversation to be aware that one party is recording the conversation, federal law provides that only one party has to be aware which means you have a right to record it even if they do not know you are recording it. What you are able to do with it afterwards is another matter altogether, but as far as making the recording in the first place, you have every right to make it.

Anonymous Coward says:

Re: Re: There already is a federal law...

And you are wrong about that too. California law (for instance because it is a two party state) does not apply to someone physically in another state like Texas. If I want to record a conversation I have with someone in California without telling them there is nothing they can do. Furthermore, that conversation classifies as interstate commerce which only Congress can regulate, not any of the states. State laws do not apply.

Aidian Holder says:

Re: Re: Re: Not sure I agree 100% with your police work there, lou

California supreme court has specifically held that a call with one end in California is governed by the California ‘two party’ consent law (and, typical for Cali., a poorly written, vague, and overreaching version of a two-party consent law at that).

Other state courts have made similar rulings; I can think of at least one off the top of my head and I’m sure there are a few others.

I can not recall any specific court ruling that went the other direction, holding that a call between a one-party state and a two party state was governed by the rules of the one party state. Doesn’t mean there hasn’t been one, just that I haven’t hear about it.

Anonymous Coward says:

Re: Re: Re:2 Not sure I agree 100% with your police work there, lou

There is a distinction between if its legal to record the conversation and what you can do with it. Given that its interstate commerce, I don’t see how California would have a leg to state on if they wanted to criminally charge the out-of-state individual. OTOH, California courts could certainly refuse to admit into evidence such a recording.

Aidian Holder says:

Re: Re: Re:4 Not sure I agree 100% with your police work there, lou

The California Supreme Court apparently believes the state’s laws apply to any call where at least one party is in the state. The case is Kearney vs. Solomon Smith Barney.

Outside Cali, the picture gets more muddled, and there’s apparently no clear case law saying if and when federal law controls.

If you doubt me, I would respectfully suggest two minutes on Google.

I don’t see how California would have a leg to [stand] on…

In my experience, whether the state has a logical, legal, or moral leg to stand on or not has little to do with the actions and policies of state government.

Anonymous Coward says:

Re: Re: Re:5 Not sure I agree 100% with your police work there, lou

The only reason why they could be held liable is that the company had offices in California as well. It’s like state sales tax. When a company does business (ie. has offices and or stores) in a state, they are bound by the laws of that state just as are the residents of that state. They have to charge sales tax for applicable products the sell in that state to residents of that state. However, for a person who doesn’t live in that state and isn’t in that state ordering something trough the mail, California state sales tax isn’t applicable to non-residents ordering from out of state. I don’t live in California, don’t do any business there, don’t own property their and basically have no personal ties whatsoever to the state apart from knowing a few people who live there. If I decided to call someone there from Texas and record the call without telling them there is absolutely nothing in California law applicable to me. That was not the case with Soloman Smith Barney.

Anonymous Coward says:

I don’t know what everyone’s hang up is. I simply do not need nor require permission to record any conservation. If someone is calling me on my home phone or cell phone, and I don’t wish to speak to them, I simply lead with the statement:

“This phone call is being recorded for prosperity and for review. Because YOU have placed this call, I am under no obligations to stop recording or to send you copies of this recording. If you do not wish this phone call to be recorded, simply end your phone call.”

’nuff said

jonsnow (user link) says:

recording of phone calls for civilians

I believe the government will do what they want to do regarding recording conversations. It is interesting to know the law regarding civilians. In 11 states it requires consent of both parties of a conversation/phone to record the call while in other states, its sufficient to have one party consent. I know of a website named Recordator which allows recording of phone calls without additional hassles.

Old Poor Richard says:

Alternative Suggestion

Those loopholes for public safety and criminal investigation are nonsense. If I can simply recall the conversation verbatim, then I can record it with no worse impact on public safety or on an investigation.

This is all about non-repudiation. Government dirtbags want to retain the ability to lie and deny and plant doubt about what was really said during a conversation.

Talking out the other side of their mouths, we know that cops frequently engage in illegal warrantless wiretaps, and then a cop who listens to the illegal wiretap poses as a faux “informant” claiming to be privy to that conversation except as a witness who testi-lies in an affidavit which then is used to secure a warrant.

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