August 1, 2014

Reporters frequently cite mobile apps that record phone calls as among their favorites, according to David Ho, The Wall Street Journal’s editor for Mobile, Tablets & Emerging Technology, who has trained some 1,500 journalists on how to use tech tools in their work.

But reporters might not realize that these apps often store the recordings of calls on their own servers or the cloud – and then send a copy to the user’s cell phone. This means third parties can access the information, which raises questions about who owns the recording and whether communications with sources are confidential.

“Once information gets into a third party’s hands, there is a risk that your protections could be minimized as a result,” said Bruce Johnson, a media attorney at Davis Wright Tremaine in Seattle.

Despite the risks, call-recording apps have benefits. They’re convenient, as people normally have their phone with them. They also offer easy ways to label, catalogue and share recordings.

Still, Ho recommends that reporters become aware of how these apps work before they use them.

“Journalists should be making informed decisions when they choose to use this kind of technology,” Ho said in an email. “They may not realize someone else is on the call with them.”

One way reporters can familiarize themselves with the ins-and-outs of call-recording apps is to read the terms of service, which are normally on companies’ websites.

Journalists should pay special attention to ownership clauses, and may want to avoid products that claim redistribution rights of recordings, NPR Associate General Counsel Ashley Messenger said.

Reporters also should learn the apps’ policies on subpoenas and confidentiality.

If the government or a private party wants to use the recording in a court case, it could try to get the information from the third-party provider. Journalists may want to find out whether the company will promise to always challenge subpoenas or whether it will reserve the ability to turn over the materials. They also may want to learn whether the third party will inform them if it is hit with a subpoena.

These concerns are not limited to call-recording apps. Any time reporters use technology that involves a third party – such as Google Docs or SoundCloud – it is wise to look at the company’s policies on confidentiality.

Messenger said it’s common for third-party apps to reserve the right to comply with subpoenas. Consequently, national security reporters or people writing about other sensitive topics might want to avoid these products.

“You do lose control unless you have actual contractual provisions or some other kind of certainty that they are going to fight a subpoena for you,” Messenger said.

One popular recording app, TapeACall, has a policy that it “may respond to subpoenas” by sharing customer information. But people can avoid this risk by using the app to record the call, immediately saving the interview to another device, and deleting the original from the app’s server, said Meir Cohen, president of TelTech, the parent company of TapeACall.

“If someone were to delete the call, it wouldn’t be an issue,” said Cohen, who added that TapeACall has had more than one million users in its first year.

Another curveball with third-party apps is that the law is “muddled” as to what shield law applies if interviews are subpoenaed, said Johnson of Davis Wright Tremaine.

About 40 states have shield laws that offer journalists varying degrees of protections against subpoenas. When a third party stores the information, it is unclear which law controls  – where the recording is stored, where the reporter is based, or where the source is located.

Even if their interviews are not subpoenaed, journalists who are promising confidentiality to their sources need to make sure that call-recording apps are keeping their information confidential. Reporters should consider what protections third-party companies have to prevent hacking or eavesdropping, Messenger said.

On top of these digital-age concerns, reporters must remember that consent laws apply to phone apps, just as they do to standard tape recorders. People must get consent of all parties before recording in some states, but not in others. The Reporters Committee for Freedom of the Press has a guide that lists the laws for all states.

Messenger encouraged reporters to weigh all of these factors when deciding whether to use recording apps. Sometimes, she said, it could be better to tape interviews the “old-fashioned way.”

“There are always trade-offs that have to be made between security, convenience and available technologies,” she said.

This story comes to Poynter from the Reporters Committee McCormick Foundation Legal Fellow Jamie Schuman

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