Consent or not to consent? That is the question for Utah legislators wondering how to address a new bill (<a href=”https://le.utah.gov/~2018/bills/hbillint/HB0330.pdf” target=”_blank”>HB 330</a>) requiring the consent of both parties before a private conversation can be electronically recorded. Everyone knows how much fun secret recordings can be. We remember secret recordings of insider conversations, such as Mitt Romney’s “47 percent” comment and those guys that video taped Planned Parenthood admitting to selling baby parts. That stuff is juicy and shouldn’t we know those things?
But what about private conversations that have nothing to do with politics or possible crimes? I mean really private conversations such as between a priest and a parishioner or doctor and a patient. Should the law allow one party to the conversation to secretly record the meeting? State Rep. Lowry Snow’s new bill says no. His bill would require the consent of both parties before a recording of a truly private conversation could take place – and I think it’s a good idea.
I base that conclusion on the arguments of the bill’s opponents. <a href=”https://www.sltrib.com/news/politics/2018/02/07/trib-caucus-mormon-church-backed-bill-to-ban-secret-recordings-would-we-know-about-romneys-47-percent-herberts-available-jones-and-shady-dealings-at-an-orem-krispy-kreme/” target=”_blank”>My friends</a> at the <em>Salt Lake Tribune</em> have been my guide in this matter. Their arguments range from it is a solution looking for a problem to the bill being bad for freedom to spitefulness toward specific people who really enjoy revealing private conversations.
Rep. Snow’s bill does one thing and one thing only: In otherwise normal settings wherein normal private conversations occur, neither party may record the conversation without the consent of the other party. The bill has nothing to do with public comments from public officials or crimes of any sort. An investigative reporter or an undercover cop or even a regular person who reasonably believes that a crime is going down would not be subject to this bill. They are exempted.
Even so, my friends at the <em>Tribune</em> think otherwise. One argument they make is that a secret recording of a private conversation by an interviewee is okay. They argue that the interviewee is on some kind of hot seat and at a disadvantage to the interviewer – they use the example of a church official interviewing a church member. But the problem with this argument is that both parties to that conversation are there of their own free will and choice. There is no inherent disadvantage in the conversation. In fact, in this particular example, the only disadvantages would be the perceptions of either party.
Another example offered by the <em>Tribune</em> staff is the “<a href=”https://www.sltrib.com/pb/news/2017/08/31/utah-nurse-arrested-after-complying-with-hospital-policy-that-bars-taking-blood-from-unconscious-victim” target=”_blank”>Nurse Wubbels incident</a>” in which Salt Lake City police assaulted and then arrested a University of Utah hospital nurse for refusing to draw blood from an unconscious patient suspected of foul play. A police officer’s body camera recorded the whole thing. But that example reveals the wise use by police of body cameras and not an example of abuse that otherwise would have gone unreported.
<em>Tribune</em> columnist Robert Gehrke said, “On a more fundamental level, if you don’t want embarrassing statements recorded, don’t say embarrassing things. I think church members and really anyone else should be able to record those types of exchanges for their own protection. Otherwise, it’s a total Star Chamber process.”
For me anyway, it is that sort of comment that makes me think that opponents of the bill are reacting to what they perceive to be just one more example of how a conservative Legislature crushes transparency in a free society, or worse. Just the spirit of Gehrke’s comment flies in the face of everything he was taught in journalism school, especially about freedom of the press. Why have anonymous sources? Why have rights to privacy? What have you got to hide?
Transparency is vitally important in a free society. But so too is privacy. We want transparency from elected officials until, for instance, private conversations achieve a political compromise that serves the common good. Sometimes people need to think out loud with others without the risk of having zealous colleagues or political and ideological opponents contesting every word. We love to know behind-the-scenes intrigues. We can learn from how private negotiations took place. But every opportunity to learn from those situations is diminished to the degree parties to a private conversation feel as if they cannot speak freely.
Again, we are not talking about prohibiting recordings of criminal activities. Rep. Snow’s bill does not affect any of that. His bill addresses normal private conversations in normal human settings. In those normal settings, maintaining privacy is not only the polite thing to do, but it should be the legal thing to do too.
Think of it this way. What newspaper do you respect more? The <em>Salt Lake Tribune</em> or <em>The National Enquirer</em>? If your answer is the <em>Tribune</em>, you should support Rep. Snow’s bill. On the other hand, if you prefer <em>The National Enquirer</em>, yeah, everyone would expect you to oppose the bill because, clearly, truth does not interest you.