• August 17, 2018

Free picture (Big brother is watching you video surveillance digital background) from https://torange.biz/fx/big-brother-watching-you-video-172970

Ms.¬†Omarose Onee Manigault Newman (widely known as “Omarosa”) has been in the news lately promoting her “tell-all” book about her stint in the Trump White House (words whose juxtaposition will sadden and nauseate Minnesota Litigator for life).

In promoting her book, Omarosa has revealed that she surreptitiously digitally recorded conversations that she had, even in the White House situation room from which cell phones and recording devices are prohibited. This news comes only days after the public has learned that Trump’s personal lawyer, Michael Cohen,¬†surreptitiously recorded telephone calls that he had with Trump.

We do not comment on the legality of Cohen’s and Omarosa’s recordings but we do take the occasion to highlight that undisclosed audio recordings are now pervasive in our society. In our personal and anecdotal experience, we are frankly stunned at the number of clients who are non-consensually recording conversations (on the telephone or in person). The rate has spiked upward dramatically in recent years. (And, woe to the lawyers who fail to appreciate fully that many of their clients are recording their every word.)

Is it unlawful?

It is impossible to generalize and you should consult with a lawyer if you believe you have been harmed in any way by a surreptitious recording (or if you wish to surreptitiously record a conversation and want to ensure that you are complying with applicable law).

Having said that, in many circumstances, generic audio recording (say, on one’s own property, for example) without consent is surely legal. (Not everyone agrees. We note a proposed class action against Menard’s for its supposedly inadequate disclosure of the fact that it records audio in its stores.)

Maybe, over time, we will devise a way to regulate private surveillance more than we do now. On the other hand, maybe we will simply adapt to a less private society, a society where we take it as a given that we are now under close-to-constant passive surveillance in all interactions with all people and businesses.

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