
Prostitution cases dismissed because cops’ cameras mistakenly recorded audio - danso
https://www.seattletimes.com/seattle-news/crime/men-caught-in-bellevue-prostitution-sting-get-off-because-cops-recorded-audio-with-hidden-cameras/
======
wu-ikkyu
>According to the city of Bellevue, detectives used hidden cameras to document
elements of the crime of patronizing a prostitute. “Unfortunately, audio
conversations were unintentionally captured between the suspect and the
undercover officers in 61 of the 110 cases,” the city wrote in a news release.
State law requires two-party consent to record audio conversations.

So it's legal to do surveillance by video recorder but not audio recorder? I
don't know what to think about that.

~~~
danso
FWIW, the _majority_ of states allow for one-party consent audio recording --
i.e. one person secretly taping a conversation without telling the others:
[http://www.slate.com/articles/news_and_politics/crime/2011/0...](http://www.slate.com/articles/news_and_politics/crime/2011/03/broken_record_laws.html)

Not sure what the history of case law regarding audio vs video recording, but
it seems video recording is almost always legal in public areas (i.e. not a
dressing room). Video being subject to a two-party consent rule, or even one
-party consent, would make most video surveillance illegal, such as security
cameras outside of stores.

[https://lifehacker.com/what-you-need-to-know-when-
recording-...](https://lifehacker.com/what-you-need-to-know-when-recording-
your-enemies-1795226719)

~~~
eesmith
"security cameras outside of stores" would be in public areas, yes? The
Lifehacker link you pointed to says "Generally speaking, you have the right to
record video in all public spaces without need of consent."

Now for the fun part - it can be possible to extract audio from video, by
careful processing of the small motions the sound induced in objects in the
frame. See
[https://www.youtube.com/watch?v=FKXOucXB4a8](https://www.youtube.com/watch?v=FKXOucXB4a8)
. High-speed camera is best, but at the end they show how a regular consumer-
level camera can also be used.

~~~
danso
Right, that's what I meant. If video were subject to 2-party consent rules
like audio, many public security cameras (such as those that overwatch a
parking lot) might be illegal, particularly without signage.

With audio, 2-party consent makes it illegal to record audio anywhere,
including public places, without informing the other party.

~~~
eesmith
I don't think that's a correct interpretation of 2-party audio recording laws,
and therefore don't think the parallelism to video recording applies.

The relevant Washington law for audio recordings is at
[http://apps.leg.wa.gov/rcw/default.aspx?cite=9.73.030](http://apps.leg.wa.gov/rcw/default.aspx?cite=9.73.030)
. It applies to:

> Private conversation, by any device electronic or otherwise designed to
> record or transmit such conversation regardless how the device is powered or
> actuated without first obtaining the consent of all the persons engaged in
> the conversation.

A conversation outside, in a public area, which can be overheard by others, is
not a private conversation, so outside the scope of this law. I think.

Looking at [https://www.mwl-law.com/wp-content/uploads/2013/03/LAWS-
ON-R...](https://www.mwl-law.com/wp-content/uploads/2013/03/LAWS-ON-RECORDING-
CONVERSATIONS-CHART.pdf) , the entry for Illinois says it's a two-party
(rather, all-party) state, but adds that after an earlier version was found
unconstitutional, "On December 30, 2014, the statute was amended to permit
recording of conversations in public places, such as in courtrooms, where no
person reasonably would expect it to be private."

That looks to me like there is no necessary conflict between being a two-party
state _and_ allowing audio recording of public conversations without consent
of any party.

~~~
danso
What you cited -- _Private conversation, by any device electronic_ \-- makes
no mention of private vs. public when it comes to _areas_. IANAL but that
would mean that "private conversation" is open to interpretation and could
very well include conversations that occur in public places.

I can't speak to Washington state specifically, but it seems successful
lawsuits and charges have been brought against people in 2-party consent
states who have recorded conversations that took place in public areas:

\- Pennsylvania high school student was criminally charged for secretly taping
bullying in his classroom: [https://www.washingtonpost.com/news/volokh-
conspiracy/wp/201...](https://www.washingtonpost.com/news/volokh-
conspiracy/wp/2014/04/14/crime-for-high-school-student-to-secretly-audio-
record-his-tormentors-in-the-classroom/)

\- Project Veritas is facing a lawsuit for a Florida sting that took place at
a teacher conference: [https://www.buzzfeed.com/charliewarzel/a-teacher-is-
suing-br...](https://www.buzzfeed.com/charliewarzel/a-teacher-is-suing-
breitbart-and-project-veritas-for)

\- In MA, which is 2-party-consent, there appears to be an exception for
recording of public officials in public areas:
[https://www.boston.com/news/local-news/2015/04/24/how-a-
bost...](https://www.boston.com/news/local-news/2015/04/24/how-a-boston-case-
won-you-the-right-to-record-police)

~~~
eesmith
Washington state law is different from PA, FL, or MA. What is illegal there
may not be illegal in WA.

My conclusion was that there "is no necessary conflict between being a two-
party state and allowing audio recording of public conversations without
consent of any party".

That doesn't mean that a two-party consent state _must allow_ public audio
recordings. It doesn't mean that a two-party consent state _must prohibit_
public audio recordings.

But it clearly is legal in some two-party consent states, in some contexts, to
allow audio recordings of public conversations.

I agree that the definition of "private" is definitely open to interpretation
under WA law.

Montana, another two-party consent state, specifically excludes "persons
speaking at public meetings".

