From: John De Armond
Subject: Re: Speaker Phones and the Courts
Date: 30 Sep 90 18:47:47 GMT
Organization: Radiation Systems, Inc. (a thinktank, motorcycle, car
 and gun works facility)

In article <12692@accuvax.nwu.edu> Jeff Dalton <esl!bambam!jsd@ames.
arc.nasa.gov> writes:

>I'm guessing that a tape recording of a phone conversation cannot be
>used as evidence in court unless both parties are aware they're
>being recorded. But what if one end of the conversation is on a
>speaker phone with witnesses listening.  I would guess that the 
>witness could testify about the content of the conversation and the
>person on the other end of the phone wouldn't have to know someone
>else is listening.

>Does anyone know anything about this?

Yes I do. *Caution*  Your mileage may vary widely by state.  My
experience is based on the laws of Tennessee and GA.

I have used tape recordings of my own phone calls in court.  According
to FCC rules, only one party to the conversation (that's me) now must
to be aware of the recording.  In other words, third party wiretapping
is still illegal but it is not illegal to record your own
conversations.

The recordings may be introduced as evidence but only under strictly
controlled conditions.  The recordings must have been made available
for discovery in the pre-trial proceedings.  It is advisable to have
written transcripts made of the important parts.  The recordings can
only be used as rebuttal evidence.  It is considered heresay (?!?)  as
direct evidence.  In other words, you CANNOT use a recording to prove
something was said.  You CAN use it to prove that the person who said
it is now lying about what he said.

Tapes are subject to all the usual rules of evidence.  The other side
will do all in its power to discredit the tapes.  It is highly
advisable to set up a recording system with this in mind - a lawyer's
adivice is highly recommended.  One of the big things you'll need to
do is to be able to prove the authenticity of the tapes and to prove
the time and dates of the recordings.  What I did was after the call
was finished and with the tape still rolling, I'd dial the local time
and temp. number and get a time stamp or for really important calls,
I'd call the National Observatory number in DC.  The DTMF would be
recorded and the charge would show up on the phone bill.

In summary, yes one can make very effective use of phone recordings
but some legal advice and planning is necessary.  I'd imagine that an
ad-hoc recording of a conversation that started to get hot probably
would not withstand the challenge to its authenticity.  And I'll
repeat again, get good legal advice in your state.  I've heard that
some states have tried to restrict your right to record.  It is my and
my attorney's opinion that federal preemption would apply but none of
us likely has enough money to prove the point.


John De Armond, WD4OQC   Radiation Systems, Inc. 
Atlanta, Ga             {emory,uunet}!rsiatl!jgd

Date: Mon, 13 Jan 1997 23:48:49 -0800
From: John Higdon <john@bovine.ati.com>
Newsgroups: comp.dcom.telecom
Subject: Re: MCI Bait-And-Switch Beware

Dave Keeny <keenyd@ttc.com> wrote:

> Federal law allows telephone conversations to be taped as long as at
> least one of the participants agrees to it -- this allows you to record
> your own conversations; however, state laws may differ and the legality
> is not always clearcut ...

>> From http://www.cpsr.org/dox/factshts/wiretapping.html :

>> California law does not allow tape recording of telephone calls
>> unless all parties to the conversation consent...

Yet another case of California's parochial myopia. What on earth would
stop someone in CA from calling anyone (including someone in the
state), then three-waying someone else into the conversation who
happened to be located in a state that allows recording without both
parties' consent? The person making the recording is indeed one of the
parties to the conversation, so he is satisfying the Federal and his
state's law. California law would not apply to someone living in
another jurisdiction. And being in compliance with Federal law,
California could expect no cooperation from any other agency in
dealing with this recordist.

Furthermore, it would be very difficult to prove that such a recording
was NOT made in the above-described manner. In other words, I could
call a downtown business, record the conversation clandestinely, and
then later produce the recording as evidence claiming that it was made
by someone in, say Arizona, who happened to be on the line. Who could
prove otherwise?


John Higdon  |    P.O. Box 7648   |   +1 408 264 4115     |       FAX:
john@ati.com | San Jose, CA 95150 |   +1 500 FOR-A-MOO    | +1 408 264 4407
             |         http://www.ati.com/ati/            |

From: floyd@ptialaska.net (Floyd Davidson)
Newsgroups: comp.dcom.telecom.tech
Subject: Re: Linda Tripp's wirtetap hearing coming up
Date: 16 Dec 1999 09:04:55 GMT

Lisa or Jeff <hancock4@bbs.cpcn.com> wrote:
>
>...  But I think telephone conversations should be respected as
>private per the law.  The Telephone Directory has started for
>as along as I can remember that tape recording of phone calls
>requires a 15 second beep tone.

Federal law was changed some time back, and requires only that
one party to the conversation give permission (meaning that any
party to a conversation may record it without notification to
other parties).  Hence there is no Federal requirement for the
15 second beep tone.

State laws vary.  Some still reflect the old Federal law, and
may require all parties to be notified and/or may require a 15
second interval beep.  Or they may not.

In addition, the Federal law specifically allows a telephone
company to monitor conversations without notification for a
number of reasons (evaluating work performance of employees, in
the performance of work on equipment etc., and to investigate
fraud and/or abuse of the Public Switched Telephone Network).

I have specifically discussed the significance of conflicts
between State and Federal laws with an attorney.  The advice I
received (which related of course specifically to Alaska
statutes only) was that technically the more limiting State code
is enforceable (in the general sense, which ever law is the most
restrictive would apply).  However, the gist of the conversation
was very well summed up by the attorney, whose statement about
the likelihood that the State would either investigate or
prosecute such a violation was "The State Troopers have murders
to investigate."

And in fact, a short time after that conversation took place
the State Troopers in the process of a murder investigation
used telephone company facilities to place a wiretap for which
no court order existed on a line connected to a cell phone being
used by a Trooper (who had given permission!).  At the same
time, the local newspaper was monitoring cell phone calls,
and recorded that same call without permission!  It was never
specifically made public that the Troopers had a tap in place,
but the newspaper published a verbatim transcript of the
conversation, on the front page, over a 3-4 day period.

Needless to say, no prosecution for any violation of privacy
or illegal wire tapping took place.  (The suspect was convicted
and is serving a jail term.)

In perspective, the prosecution of Tripp is astounding, even
if pedantically it is a correct interpretation of Maryland law.

  Floyd

--
Floyd L. Davidson                          floyd@barrow.com
Ukpeagvik (Barrow, Alaska)