Watch What You Record: Proposed N.J. Legislation Aims to Change State Wiretapping Law

Ryan J. Brown
Thursday, July 10, 2014

I. The Proposed Legislation
            Two members of the New Jersey Assembly, Minority Leader Jon Bramnick (R-Morris, Union, and Somerset) and Asw. BettyLou DeCroce (R-Essex, Morris, and Passaic) introduced Assembly Bill 1567, which is currently pending in the Assembly Judiciary Committee.[1] If enacted, the bill will amend the New Jersey Wiretapping and Electronic Surveillance Act (Wiretap Act), which controls the recording of any “wire, electronic or oral communication,” and in effect will make it unlawful for a private citizen to “record a communication unless all parties have previously consented.”[2] The sponsors state that the bill intends to “prevent persons from being recorded without their knowledge,” especially since advancing technologies have impacted individuals’ freedom of privacy.[3] Identifying a potential harm that could result from such a recording, the sponsors suggest “false information about an individual can spread quickly if a wrongdoer fraudulently alters a legitimate recording and posts the altered version online.”[4]One might question whether this example is consistent with the type of harm the bill intends to prevent in that altering a legitimate recording and posting it online seems like a different type of harm than invasion of privacy.
II. The Current Wiretapping Law in New Jersey
            New Jersey’s Wiretap Act, in its present form, allows a private citizen to record a communication when that person is a party to the communication, or if one of the parties to the communication gave the person consent to such recording.[5] The provision of New Jersey’s Wiretap Act that allows private citizens to record conversations mirrors the corresponding language of the Federal Wiretap Act, which also permits the recording of communications when one party consents.[6] With that said, it is not surprising that the majority of U.S. states allow recording when one party consents, whereas only twelve states require consent of all parties.[7]
III. The Implications of One-Party Consent and All-Party Consent Wiretapping Laws
            Wiretap laws that permit the recording of communications with the consent of only one of the parties provide the public with a useful way of gathering information. While some may think that surreptitious recordings are inherently wrong, others may see such recordings as a way to prevent injustice that would otherwise go undetected. For example, in Scheller v. Rutgers Casualty Insurance Company, an insurance company refused to fully comply with the “take-all-comers” provision of the Fair Automobile Insurance Reform Act (FAIRA), which required that “an insurance agent must write an application for any eligible person who requested coverage and could not ‘channel away’ higher-risk applicants.”[8] Scheller, an insurance agent who had a broker agreement with Rutgers to sell automobile insurance, taped telephone conversations with Rutgers representatives because they were telling him to do things he knew were in violation of FAIRA.[9] Rutgers went on to terminate the insurance agency contracts of Scheller and four other agents who were put in allegedly similar situations.[10] Without the telephone recordings supplied by Scheller, it would have been harder for the plaintiffs to prove that their terminations were related to FAIRA violations by Rutgers.
            In states that require all parties to consent to the recording of their communications, private citizens are not able to lawfully record communications they participate in without the consent of whomever else they are communicating with. To demonstrate how this can produce an undesirable result, one need only look to the current Donald Sterling scandal. For those who are not aware, Donald Sterling is the owner of the Los Angeles Clippers, a National Basketball Association (NBA) franchise.[11] The NBA Commissioner, Adam Silver, fined Sterling $2.5 million and banned him from the NBA for life shortly after an investigation surrounding an audio recording that was released by TMZ, in which Sterling was heard making several racist remarks to his female friend.[12] Silver also stated that he intended for the NBA to initiate proceedings to terminate Sterling’s ownership of the Clippers.[13] Mac Nehoray, the attorney representing V. Stiviano, the woman on the recording, claims that Stiviano had Sterling’s consent to record the conversation.[14] However, Sterling contends that he gave no such consent, which was a crucial part of his answer to the NBA’s charges because California is an all-party consent state.[15] Sterling contends that the audio recording is illegal under California law and consequently, cannot be used for “any purpose.”[16] Therefore, Sterling believes that since the NBA’s charges are based solely on the recording, the proceedings to terminate his ownership should be aborted.[17] It is somewhat ironic that if the conversation took place in a one-party consent state, which the majority of states are, the main thrust of Sterling’s argument would be turned upside down. Instead, he may be able to escape punishment for what many consider to be reprehensible acts because California is a two-party consent state.
IV. Conclusion: A Balancing of Interests
            In deciding whether to adopt the proposed amendment to New Jersey’s Wiretap Act, which would make New Jersey an all-party consent state, the New Jersey Legislature needs to balance the interest of privacy with the interest of protecting the public from wrong-doers. After Mitt Romney’s infamous “Forty-Seven Percent” video, it is understandable why some politicians might want to enact a law that makes it unlawful to record the things they say behind closed doors without their consent—such recordings, in the wrong hands, can seriously damage their political capital.[18] The same can be said for any public figure; a harmful recording made public can damage the reputation a person relies on for success. However, the likelihood that a similar type of recording will have a serious negative impact on the life of an average American is slim.
            Sure, there are probably strained relationships where spouses are recording each other’s statements, hoping to compile evidence that will help them get a better divorce settlement. There is also no doubt that people, on occasion, use information obtained in private to blackmail or extort victims. However, these privacy concerns need to be weighed against the benefits of keeping New Jersey as a one-party consent state in which people have the right to record the conversations they participate in. Under the current law, a person being extorted can make a recording of the threats made by the offender, which the courts could use as admissible evidence. When consumers are in the market for a used car, they can protect their interests by recording the conversations they have with salespersons, who are generally known to have a less-than-desirable reputation of making false or misleading statements in order to close deals. Additionally, employees are lawfully permitted to record communications with their bosses, who might be discriminating against them based on age, race, sex or religion. Without direct evidence of the discrimination, the victims’ cases could be hard to prove.
            Although a statistical comparison is outside the scope of this blog entry, it is a safe bet that acts of misrepresentation and discrimination far outweigh acts of extortion or bribery in this country. At its core, the benefit of New Jersey’s current Wiretap Act is that it promotes honesty, because there is always the chance that the person someone is communicating with could be recording the conversation. If Assembly Bill 1567 is passed by the New Jersey Legislature, people might be able to communicate whatever they want, regardless of the consequences, and have a good chance of getting away with it. 

*Ryan J. Brown is a December 2014 J.D. candidate at Rutgers School of Law—Camden. He may be contacted by email at ryanjbrown85@gmail.com
[1] See Assemb. 1567, 216th Leg., 1st Sess. (N.J. 2014), available at http://www.njleg.state.nj.us/2014/Bills/A2000/1567_I1.PDF

[2] Id. at 3-4 (emphasis added).

[3] Id. at 4.

[4] Id.

[5] The Act states that it is not unlawful for “a person not acting under color of law to intercept a wire, electronic or oral communication, where such a person is a party to the communication or one of the parties to the communication has given prior consent to such interception . . . .” N.J. STAT. ANN. § 2A:156A-4(d) (West, Westlaw through L. 2014, c. 11 and J.R. No. 1) (emphasis added). The Act defines intercept to mean “the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device.” N.J. STAT. ANN. § 2A:156A-2(c). Therefore, a recording is within the meaning of intercept.

[6] 18 U.S.C. § 2511(d) (2012).

[7] See Gregg P. Leslie, The News Media and the Law, 36 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 3 (Summer 2012), available at http://www.rcfp.org/rcfp/orders/docs/RECORDING.pdf.

[8] Scheller v. Rutgers Cas. Ins. Co., A-2548-06T2, 2008 WL 2121254, at *1 (N.J. Super. Ct. App. Div. 2008).

[9] Id. at *3.

[10] Id. at *1, *3-4.

[11] Los Angeles Clippers, Inc., LEXISNEXIS CORPORATE AFFILIATIONS (May 27, 2014), https://advance.lexis.com/GoToContentView?requestid=ed63a627-07f7-b3eb-5b43-5b8de4dfab05&crid=8fe0da5c-68f9-123b-62a0-c3b576148025.

[12] Jeff Zillgitt, Adam Silver Gives Donald Sterling Lifetime Ban From NBA, USA TODAY (Apr. 29, 2014, 8:14 PM), http://www.usatoday.com/story/news/usanow/2014/04/29/donald-sterling-fine-penalty-racism-audio-commissioner-adam-silver-los-angeles-suspension/8460575/.

[13] Id.

[14] Steve Gorman & Dana Feldman, Racist Remarks by Clippers Owner Recorded With His Consent: Lawyer, REUTERS (May 2, 2014, 6:34 AM), http://www.reuters.com/article/2014/05/02/us-nba-clippers-stiviano-idUSBREA4102J20140502.

[15] Brent Schrotenboer, Donald Sterling Vows Fight, Says He Has Offers of $2.5B, USA TODAY (May 28, 2014, 7:33 PM), available at http://www.usatoday.com/story/sports/nba/clippers/2014/05/27/donald-ster....

[16], In the Matter of the Termination of the National Basketball Association Membership of Donald Sterling, USA TODAY (May 27, 2014) available at http://i.usatoday.net/sports/!sterling/2014-05-27%20Secured%20DTS%20Answer%20to%20NBA%20Charge.pdf.

[17] Id.

[18] Mojo News Team, Full Transcript of the Mitt Romney Secret Video, MOTHER JONES (Sept. 19, 2012, 4:00 AM), http://www.motherjones.com/politics/2012/09/full-transcript-mitt-romney-secret-video.