This is a public service announcement to service members who may be thinking about recording people at work
So what is that about and why would you do it? Why would you not do it? Let’s talk about that. One of the great things about technology is it gives each individual person the ability to document and capture things greater than ever before. We are all walking around with complex and very effective recording devices that can capture audio and video and still images using nothing more than what we carry just to make phone calls in our hands every day. We’re talking about all those mobile devices, iPhones, android phones and all that stuff. So should you use it to record somebody without them knowing?
And the answer to that is general policy. It’s a bad idea. Why? Well, for a couple things. Number one, in some jurisdictions, what are called two party consent states, it is illegal for someone to record a conversation without the consent of all involved. So take it here in Washington, sometimes I interview people who are witnesses to the criminal cases where I defend service members and I want to ask them something such as in a conversation and I’m going to audio record it with my phone. It is important while that audio recording is happening for me to say, “Hi, my name’s (your name) we’re doing this on this date, present in the room are these people. Can we have everybody consent to this recording?” And everybody says their name and I agree, and then you’re good to go. And if you have a situation where it’s important to document that and everybody is in agreement, then by all means, that’s fine.
Okay? But in states where there’s two-party consent and you record an audio conversation without the consent of a person, you’re committing a crime. Now you might say, but it doesn’t matter. I’m a military service member. It’s happening on a military installation. It’s true that some military installations are technically on exclusive federal jurisdiction. In other words, they are legally outside the state, but some jurisdictions, some installations are contracted on state land or they’re dual military insulation. They’re not federal land. And so just because it says, you know, x and such and such navy base or, or marine base or you know, this for whatever, for the Army, does not mean that you are good to go to not abide by the one party or two party consent laws of the state. Okay? So two party consent states means you have to have folks agreement. There are plenty of one party consent states.
That means that as long as one person consents to it, who’s a part of the conversation, it’s a legal recording. So what does that mean? Do not use your phone to surreptitiously, or in other words, secretly record other people having another conversation between them. Because even in a one party consent state, if you are not the active person in that conversation, you may be committing a crime, right? And oh, by the way, on states where there is a federal jurisdiction, even if it is federal land, it is the practice through what’s called the Assimilated Crimes Act to take state laws that normally apply outside the gate and prosecute them federally. And that also can be applied through Article 134, which means it can be a UCMJ offense to violate the state law even though you’re legally on federal land and outside the state. Okay? So if you’re in a two-party consent state, very dangerous. And if you’re in a one-party consent state, if you’re recording people and they are not the ones talking to you, in other words, this conversation is happening between other people, you have zero parties consenting in that conversation. Don’t do it. Now, another scenario will come up where someone will say to you, in one party consent state, don’t record me. Right? And if that person is in a position to give a lawful order, in other words, they’re in a position to direct you to do work, tell you to be somewhere because of their rank or duty position, even if it’s a one-party consent state, you may be violating a lawful order if it’s been told to you not to do something and you do it anyway.
So I recommend that if you have someone who said, you’re not authorized to record this meeting, or you’re not authorized to record anything that goes on here, and that’s a blanket order. Even if you’re not running afoul of the state law when it comes to consent recording, you might be getting in trouble with UCMJ. Okay? Now, I understand the desire of service members to capture and document information, and it’s helpful sometimes when you do have that documented information, but you need to be smart about what you do it. If you find yourself in a situation where you’re trying to capture information, one great method is to try and have witnesses present and to have them send you either by email or text some account of it so that you’ve got a record that they were there, right? So then you can document that they were witnesses.
And you can also have them in that email or text say, I remember so-and-so said this, it is a realtime documentation of a meeting that happened. So let’s say you’ve got an incident happens where you believe something illegal happened or you were being mistreated, or some other reason you want to document this and you’ve got a witness. Or even if you are the person who is this, who, who observed it and wants to capture it, then electronic communications are an easy way to capture that. You can send an email to yourself so that it shows the date and time that was created. So later you can say, I have this email, and at the time I wrote this down because it was important to me. Okay? So find an alternative. If you’re not clear, the best thing you can do is ask for help. And when you do ask for help and you’re a service member, it’s best to turn to somebody who knows military law and system. And I would highly recommend a law firm or law practice that specializes in those topics. That’s what we do at here, at the Law Office of Jocelyn Stewart, and we’d be happy to take your call. So be smart about your devices, be careful about who you record and how, and give us a call if you have any questions. Thanks.
Sean Mangan is a UCMJ court-martial attorney who specializes in defense of allegations of sexual assault for all branches of the military worldwide.
Contact the Law Office of Jocelyn C. Stewart at 253-212-958
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