Court OKs Covert iPhone Audio Recording: Using an iPhone to secretly record a conversation is not a violation of the Wiretap Act if done for legitimate purposes, a federal appeals court has ruled. “The defendant must have the intent to use the illicit recording to commit a tort of crime beyond the act of recording itself,” (.pdf) the 2nd U.S. Circuit Court of Appeals ruled. Friday’s decision by the 2nd U.S. Circuit Court of Appeals, which involves a civil lawsuit over a secret audio recording produced from the 99-cent Recorder app, mirrors decisions in at least three other federal appeals courts.
The lawsuit concerns a family dispute over the making of a dying mother’s will. Days before the Connecticut woman died, her son secretly recorded a kitchen conversation between the son, mother, stepfather and others over how to handle her estate after her death. The son, in a probate dispute, turned over the audio file to the court in 2008 to bolster his position concerning the estate of his late mother, who died without a will. The stepfather sued him, alleging a privacy breach under the Wiretap Act. A federal judge dismissed the case, and the stepfather appealed.
The appeals court ruled that, even if the son consented to his own taping, he could be sued for money damages for a breach of the Wiretap Act if and only if he did so with a nefarious intent. “We affirm, and, in so doing, hold that the exception to the one-party consent provision of 18 U.S.C. § 2511(2)(d) requires that a communication be intercepted for the purpose of a tortious or criminal act that is independent of the intentional act of recording,” the New York-based federal appeals court said.