Be Wary of Recording Devices That Pick Up Audio As Well as Video
by Michael Fox
No area of law seems as complicated as the that of wiretapping, both state and federal, which can cover much more than most of us think of as a wiretap. Almost any interception of an aural communication is potentially risky if the individual recording is not a party to the conversation. For the trials of the latest defendant caught in that snare, see Stephens v. Dolcefino (Tx Ct. App. - Houston [1st.] June 12, 2003). An enterprising reporter's use of a pager camera to capture a conversation held at a cocktail buffet party, was enough to allow a cause of action since the audio capture gave rise to a possible cause of action under Section 123 of the Texas Civil Practice and Remedies Code, which creates a cause of action for wiretap victims.
As an aside, the defendants' argued that the pager camera was not able to capture the conversation so that it could be heard. Unfortunately, that could not be proved since the reporter had taped over the conversation in question. I would find it hard to believe that a tape of a significant conversation could be lost in such a manner, except that I had a case where the same thing happened years ago. A key conversation in an investigation, which ultimately was the basis of a termination, which was the basis of the lawsuit, had been lost when the investigator re-used the tape for other interviews. Maybe there is a lesson to be learned.