Secret Recording and the Right to Privacy: Project Veritas at the Supreme Court

On April 7, Project Veritas filed a petition for certiorari with the United States Supreme Court in a challenge to Oregon’s audio recording law. (I am co-counsel in the case.) The petition seeks review of an en banc decision from the Ninth Circuit that upheld Oregon’s law in the name of “conversational privacy.” If certiorari is granted, the Court could hear the case on one or several grounds, but one issue deserves special attention: there is a conflict between conversational privacy in First Amendment matters versus conversional privacy in Fourth Amendment matters because the privacy standards applied against the government and private citizens are unjustifiably siloed.

Secret recording can be controversial, but it is hardly a moral conundrum. Electronic eavesdropping—or secretly recording the conversations of others—is rightfully restricted across the country. But federal law and the laws of most states permit anyone to record their own conversations without notice, and the other dozen or so states usually prohibit such secret recording only in circumstances where the other participants in the conversation have a reasonable expectation of privacy. The outliers are Massachusetts, Oregon, and Montana, which have unequivocal or arbitrary bans on secret recording by citizens. All of these statutes are subject to the First Amendment, since audio recording implicates rights to free speech and the free press as much as a printing press. The questions courts must ask in evaluating these laws under the First Amendment are 1) whether strict or intermediate scrutiny applies to a given law and 2) whether the law’s restrictions are appropriately tailored to a governmental interest. The interest here is privacy, specifically the conversational privacy of the individuals subject to audio recording.

As a constitutional interest, conversational privacy originated under the Fourth Amendment, which requires the government to get a warrant before searching or seizing one’s person, house, papers, or effects. In Katz v. United States, the Supreme Court ruled that the government must get a warrant before engaging in electronic eavesdropping over one end of a telephone conversation in a closed phone booth—that is, before searching for and seizing a person’s words under those circumstances. But it was Justice Harlan in an influential concurrence who articulated that the touchstone of the Fourth Amendment should be whether a person has a “reasonable expectation of privacy.” This standard was incorporated into state laws that govern secret recording by the government but also by citizens. The Supreme Court still uses it: for instance, the Court ruled in 2018 that an individual “maintains a legitimate expectation of privacy in the record of his physical movements as captured through” cellular phone towers, meaning the government must get a warrant to acquire that information from a phone company. So there remains some privacy protection from the government even in public.

But for Fourth Amendment purposes, the Supreme Court has long drawn a bright line between electronic eavesdropping and recording one’s own conversations. United States v. White was decided in 1971, just a few years after Katz. In that case, a government informant met with a suspect on multiple occasions to set up illegal narcotics purchases and wore a transmitter that broadcast the conversations to nearby agents. In a plurality opinion, the Supreme Court ruled that the government is not required to get a warrant before doing this because, although the suspect does not know he’s speaking to a government agent or informant, he is nevertheless willingly disclosing whatever it is he’s saying—not trying to keep it private. So it’s not a search in the first place. The plurality opinion also laid out the importance of secret recording versus, say, simply relying on an informant’s testimony:

Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony.

So privacy in the Fourth Amendment silo means a law enforcement officer or other government agent can secretly record his own conversations with a suspect without a warrant.

But lawmakers can and often have passed laws that provide greater protections than the Fourth Amendment. Massachusetts, for example, only permits law enforcement to use secret recording after getting a warrant that ensures they are investigating “designated offenses in connection with organized crime.” Yet the commonwealth prohibits secret recording by citizens under any circumstances, including secret audio recording in public. Though enforcement is, of course, far from uniform, it is likely that recording felonies happen in Massachusetts on a daily basis.

Oregon law is not an unequivocal ban, but its restrictions are arbitrary. It regulates not only secret audio recording, but unannounced recording—that is, usually one must “specifically inform[]” all participants in an in-person conversation before recording it. There are exceptions: for instance, one may record conversations with law enforcement officers or public meetings without notice so long as it’s done with an unconcealed device. Yet a loud conversation on the street or even an argument in a park does not comfortably fit into any exception, and the risk of misdemeanor charges permeates secret or open-but-unannounced recording of all sorts of conversations that are by no means private.

The majority opinion of the en banc Ninth Circuit treats privacy as an interest that justifies the censorship of secret or unannounced audio recording by the public at large, going far beyond any privacy analysis that aims to protect the public from intrusive government surveillance. In fact, the majority relied on Justice Harlan’s dissent in White to transform privacy as a circumstantial analysis to something far more, since unannounced recording means a subject’s “‘words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed.’” The Ninth Circuit further adopted a standard that distinguishes “between being recorded and merely being heard,” which also carries no weight in the Fourth Amendment context or in case law for states that use the expectation of privacy analysis to govern recording. Most chillingly, the court said the accuracy of audio recording—rather than supporting a speech interest—supported an interest in censorship, since accurate recording implicates a “privacy concern[] that [is] different in kind, and more corrosive, than merely having one’s oral communications heard and repeated.”

There are plenty of constitutional doctrines that are contradictory. But it is concerning that the current doctrines do not protect citizens from audio recording in conversations with undercover government agents but prevent citizens from making their own recordings in the exact same circumstances. This is exactly what happens in Oregon: in 2021, the state’s appellate court upheld a conviction against a citizen who secretly recorded a meeting with state personnel, including a deputy district attorney, who were engaging in their public duties. Something’s gotta give.

Even under intermediate scrutiny—the lowest level of First Amendment review—unequivocal or arbitrary bans on audio recording do not pass muster, and courts should at least adhere to a standard closer to White. White’s privacy analysis was correct, and rights of free speech and the free press should include the ability of citizens to record their own conversations, merging the First and Fourth Amendment privacy silos into one coherent analysis.