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12 Harv. L. & Pol'y Rev. 177 (2018)
Reassessing Wiretap and Eavesdropping Statutes: Making One-Party Consent the Default

handle is hein.journals/harlpolrv12 and id is 179 raw text is: 

                  Reassessing Wiretap and

                  Eavesdropping Statutes:

        Making One-Party Consent the Default

                               Rauvin Johl*


     The rise of smartphones, smart  technology, and the internet of things
has pushed  society incrementally closer to the camera-laden  dystopia de-
scribed in George  Orwell's 1984.  But rather than a  surveillance network
orchestrated by Big Brother, today's recordings are made by private citizens
as well as the government. Smartphones  have the capability to record audio
and video, as do wearable devices  such as GoPros  and home  security tech-
nologies including  smart doorbells, dashboard cameras,  and  nanny cams.
These  devices have placed immense   power  in the hands of the public, al-
lowing  us to record and share everyday miracles, nuisances, and tragedies.
As  technology evolves  and audiovisual recording devices become  smaller,
more  affordable, and ubiquitous, state laws regulating the use of these de-
vices often remain unchanged. Most  states have eavesdropping and wiretap-
ping statutes that impose one-party consent regimes, allowing the recording
of audio if one party to the communication  consents. But a significant mi-
nority of states have all-party consent laws, which prohibit audio recordings
without the consent  of all parties to a communication.' All-party consent
statutes have led to high-profile arrests of citizens who record police officers
in the performance of their duties, and cast a pall on the use of other technol-
ogies such as 'smart' home  security devices and dashboard cameras.2
     States with all-party consent recording statutes should replace those
laws with one-party schemes.  All-party consent laws were intended to pro-
tect privacy and preserve social bonds, but their expansive scope made little
sense even in the era in which they were drafted. Changes in social attitudes,
technology, and policing tactics have deepened  the inconsistencies embed-
ded in all-party consent laws. Prohibitions on audio recording without all-

   * Harvard Law School, J.D. 2017. I am grateful to Professor Susan Crawford for her ad-
vice regarding this article. I would also like to thank the dedicated Harvard Law & Policy
Review editors for their insightful editing and comments.
    ' All-party consent laws are also commonly referred to as two-party consent laws. For the
purposes of this paper, I will be using the term all-party consent in recognition of the fact
that in all-party and two-party schemes consent must be obtained from all parties to a record-
ing for it to be lawful.
    2 See Annys Shin, Traffic stop video on YouTube sparks debate on police use of Md. wire-
tap laws, WASH. POST (June 16, 2010), http://www.washingtonpost.com/wp-dyn/content/arti-
cle/2010/06/15/AR2010061505556.html [https://perma.cc/NS85-HB7G]; ACLU-PA Files
Lawsuit on Behalf of Armstrong County Resident Arrested and Jailed for Videotaping Police,
ACLU-PA  (May 3, 2016), https://www.aclupa.org/news/2016/05/03/aclu-pa-files-lawsuit-be-
half-armstrong-county-resident-arres [https://perma.cclS6E4-XED9].

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