Supreme Court judges were secretly recorded. What does this mean for the rest of us?

While posing as a “Christian conservative” at the Supreme Court Historical Society’s members-only black tie gala, liberal journalist and director Lauren Windsor secretly recorded her conversations with Chief Justice John Roberts, Justice Samuel Alito, and Alito’s wife, Martha-Ann Alito. The event, which took place on June 3, was not open to journalists.

The nature of the remarks contained in the secretly obtained recordings renewed debate about Justice Alito’s impartiality – which was Windsor’s goal in creating the recording – and raised questions about journalistic ethics. But the videos also highlight two significant issues facing society.

The first is the reality of today’s ubiquitous electronic surveillance: everyone wears or wears one or more always-on smart devices equipped with highly advanced audio and video detection capabilities. Microphones and cameras in smartphones and smartwatches record, collect and share users’ communications, locations and activities. Even the rare people who avoid such devices are usually surrounded by other people’s devices.

Second, the once-robust regulatory framework of U.S. electronic surveillance law, embodied in the federal Electronic Communications Privacy Act, commonly known as the Wiretapping Act, and the failure of their state counterparts to keep pace with the era of smart devices. The weakening of surveillance safeguards is accompanied by a lack of legislation to protect data privacy.

I am a lawyer and professor of law at the University of Richmond School of Law, and these laws and issues are the focus of my legal practice and research as lead author of “Wiretapping & Eavesdropping,” a four-volume work on privacy and electronic surveillance law.

Who, how and where to record

Electronic surveillance laws make it an offense to use a “device” to secretly record or intercept communications such as emails and oral conversations without consent. Such activities, whether remote or in person, are sometimes referred to as eavesdropping or electronic eavesdropping. The nature of Samuel and Martha-Ann Alito’s remarks suggests that they were unaware they were being recorded. So did this undercover journalist violate wiretapping laws?

From a legal point of view, the facts about who was recorded, how and where they were recorded are important. If someone is aware that they are being recorded – and continues to speak – or has consented to being recorded, the recording is usually legal.

The Wiretapping Act and some state equivalents, including District of Columbia law (as well as Hawaii law), allow recording if one person in a conversation consents, even if the other participants in that conversation are unaware that they are being recorded . In other words, if you talk to someone privately, you run the risk that they might record you, even if they deceive you about who they are, as Windsor did in this case, and as undercover agents do all the time.

Some states, such as Maryland, require consent from everyone involved in a private communication before it is recorded. The provisions on wiretapping and wiretapping also take into account whether the communication or conversation is private, taking into account the place and manner of its occurrence. If it happens in a public place where others can hear what is being said, it is usually not private and unprotected.

What device did Lauren Windsor use? She could have used a small, sophisticated device designed specifically for electronic eavesdropping, or she could have used a telephone. In the eyes of the law, it does not matter much. It was a device and practically everyone carries highly sophisticated listening and recording devices in the form of smartphones and smartwatches.

The facts surrounding this recording indicate that it was made in Washington, D.C. – in a unilateral jurisdiction with consent – by a person who was a party to the conversation. More importantly, this recording took place at an event where many people attended and spoke within earshot of others.

Given the judges’ location and importance as public figures at the event, recording their conversations is likely legal – regardless of jurisdiction. Windsor may have breached some of the terms of participation in the events – legally speaking, it is a contract – but not the rules regarding wiretapping and wiretapping.

Failure of wiretapping and privacy laws

The judges shouldn’t be surprised by this video. Nobody should. Wiretapping laws currently provide little protection. These laws’ outdated consent exceptions – introduced long before the era of always-on, always-listening smart devices – and the lack of a federal data privacy law render once-robust electronic surveillance laws toothless.

Because people routinely click “I agree” on terms presented by smart devices and apps – which is often the only way they can use a device or app – by doing so, they consent to being tracked and logged 24/7 by devices and apps. Smart devices are listening at all times, ostensibly to be able to respond to a user’s verbal queries or prompts, but they also aim to collect communications and related data. This data can then be analyzed, sold or traded on a data marketplace for behavioral manipulation through targeted messaging or advertising.

Because users have consented to being tracked or recorded at some point, regardless of how significant and informed that consent was, the protections of wiretapping laws are weakened.

Almost everyone is recorded, almost all the time.

This article is republished from The Conversation under a Creative Commons license. Read the original article.