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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* INTRODUCTION 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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