August 1, 2005

It only takes a few muscles to press RECORD.

The firing last week of Miami Herald columnist Jim DeFede raises a range of questions about what should happen before any tape starts rolling.

Would recording this interview help to make my story better?

Many reporters use recording devices during interviews to ensure the accuracy and context of the conversation.

“There’s no doubt it heightens the accuracy of my story, and not only because the quotes are accurate,” Chip Scanlan wrote in “Reporting and Writing: Basics for the 21st Century.”

“Taping means I have the full context of an interview,” wrote Scanlan, senior faculty at Poynter. “Many, if not most, complaints about misquotes, I believe, stem from a person’s remarks being taken out of context.”

Am I required by law to ask my source for permission to record our conversation?

Recording phone conversations is legal in all of the 50 states and the District of Columbia. Federal law permits electronically recording a phone conversation with the consent of only one person involved in the conversation. This “one-party” rule requires the consent of at least one person in the conversation. The law deals primarily with wiretapping and law enforcement –- recording conversations to which the recorder is not a party. But for journalists, this means that only the reporter herself is required to know that the conversation is being recorded.

Do I live in a state that requires me to ask for permission to record?

Twelve states have their own laws covering surreptitious recording. They require varying degrees of consent from the parties involved in phone interviews. In Florida, the consent of all parties involved in a recorded conversation must be granted:

It is lawful under ss. 934.03-934.09 for a person to intercept a wire, oral, or electronic communication when all of the parties to the communication have given prior consent to such interception.

In other states, it is enough for a reporter to announce that he is recording so that all parties involved are informed.

Journalists in Connecticut, Pennsylvania, Washington, California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada and New Hampshire are subject to similar rules, with similar potential consequences for breaking the law: jail time, fines and both criminal and civil charges.

Does my newsroom have a policy about recording phone conversations?

Many newsrooms’ policies do not specifically address the recording of telephone interviews, but some include clauses that require employees to obey the law. The Herald‘s policy does not specifically prohibit recording interviews without a source’s consent, but requires its employees to “avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public.”

At The Tampa Tribune, deputy managing editor Larry Fletcher said, “We don’t have any written rules about tape recording, but we certainly expect everyone to adhere to the law.”

Am I speaking to a source who is in a state other than mine? What are the laws there?

Because the requirements for consent differ from state to state, reporters making interstate phone calls should be particularly careful to gain the consent of their sources before recording them.

“That’s the rule of thumb,” said Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press, which publishes “‘Can We Tape?’: A Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and D.C.” “And that’s the ethical thing to do anyway. You always have to know what the law is, and you are always better off having the permission of the person you’re recording.”

Should I ask my source before I hit RECORD?

“The first thing I tell any Florida journalist is this: the law in Florida requires the consent of all parties to tape record a conversation,” said Alison Steele, a St. Petersburg-based attorney whose firm, Rahdert Steele Bryan Bole & Reynolds, periodically represents Poynter and St. Petersburg Times. “You say, ‘I’m going to turn the tape recorder on. Is that all right?’ … Then you turn it on and you say, ‘I have turned a tape recorder on with your consent. Is that right?'”

That way, Steele said, a reporter can first obtain consent, then have a tangible record of it.

Most state laws don’t require a recorded confirmation of consent. Connecticut is an exception, where consent must be either in writing or at the beginning of the recording. Journalists in the state are also permitted to record if the conversation is “preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party,” according to the Connecticut statute.

In the state of Washington, the person recording the conversation must announce to the other people involved in the conversation that it is being recorded, and then record the announcement.

Even when not required by law, an oral or written record of all parties’ consent is good journalistic practice, Steele said.

“You are safest –- and, I think, most responsible when you get consent to tape record. That way, there’s no question,” she said.

Have other journalists gotten in trouble because they didn’t ask for a source’s permission?

Partly because court records are filed differently in each state, it is difficult to know exactly how many journalists have gone to trial over the issue. Anecdotally, it seems that few journalists have been prosecuted under these surreptitious recording laws.

In Florida, cases heard by the state’s Supreme Court in 1976 and 1977 involved journalists who had recorded conversations without their sources’ consent. In one decision, the court upheld the state’s ‘surreptitious recording’ law [Fla. Stat. ch. 934.03(2)(d)(1974)], saying that it does not violate a news organization’s First Amendment rights or infringe on its newsgathering process. 

What could happen to me if I press the button without asking for permission?

These types of laws are difficult to prosecute, largely because sources often don’t know that they have been recorded. But choosing to record a source without his or her knowledge is just as much an ethical issue as a legal one. Trust and transparency are among the most closely held values of journalism. It is legal to record an interview without a source’s consent in most states. But its appropriateness in those cases is left for the journalist to decide.

“Surreptitious taping in a one-party state, even if it’s legal for one party to know… is something that should be rarely used,” said Al Tompkins, broadcast/online group leader at Poynter. Journalists should record without permission “only in situations of great journalistic importance, great gravity and only if there is no other way to get the information,” he said.

Go ahead. Now press the button.

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Meg Martin was last year's Naughton Fellow for Poynter Online. She spent six weeks in 2005 in Poynter's Summer Program for Recent College Graduates before…
Meg Martin

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