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Covert recordings and the laws and ethics behind them

NOTED logo NOTED 26/10/2018 Peter Griffin
a person wearing a hat: Cause for concern: Jamal Khashoggi. Photo/Getty Images © Bauer Media Cause for concern: Jamal Khashoggi. Photo/Getty Images

The habit of recording our interactions, whether public or private, is increasingly common. So is it legal and ethical? 

For a few moments earlier this month, the most horrifying international crime of the year, if not the decade, looked set to be solved thanks to a fancy wristwatch.

When Saudi Arabian dissident Jamal Khashoggi walked into his home country’s consulate in Istanbul to obtain documents so he could marry his fiancée, he was wearing an Apple Watch.

Exactly what happened within the consulate walls at the hands of Saudi agents is still unclear, but in the immediate wake of his disappearance, the pro-Government Turkish media had already come to a conclusion.

Khashoggi had been brutally murdered and dismembered and his Apple Watch was recording the entire time. It had uploaded audio of the sickening episode to his iCloud account.

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The killers had been caught out by a simple consumer gadget. It seemed too good to be true – and it was. While Khashoggi technically could have been covertly recording from his watch, the chances of the audio transferring to his internet account as he met his demise, or his iPhone sitting in the car a couple of blocks away, are slim to none.

A bug placed by Turkish intelligence agents in or near the consulate is a more likely source of the recording, or even a hacked phone used by one of the killers to record their own handiwork.

Amid claims and counterclaims from two rival powers, the prospect of truth emerging from the wrist of the dead man himself evaporated.

a hand holding a cellphone: Photo/Getty Images © Bauer Media Photo/Getty Images

Political minefield

At the same time, a covert recording of a different kind was being picked over by local media as Jami-Lee Ross posted to Facebook a taped conversation with his friend and National Party leader, Simon Bridges.

“I obviously didn’t mind my Ps and Qs,” said Bridges with masterful understatement as the political fallout from that tape mounted.

No one wants a world where our conversations are stilted and guarded or where human-resource managers read from pre-prepared scripts for fear of saying something that will land them in employment court.

But where trust breaks down, technology is increasingly stepping in, as it did once before for the National Party, when the MP for Clutha-Southland, Todd Barclay, was alleged to have secretly recorded staff at his electorate office with a dictaphone. Police dropped an investigation into Barclay due to insufficient evidence, but the episode effectively cost him his political career.

a man wearing a suit and tie: Jami-Lee Ross. Photo/Getty Images © Bauer Media Jami-Lee Ross. Photo/Getty Images

Elsewhere, the stakes aren’t always as high, but it is easier than ever to make high-quality covert video and audio recordings on a mobile phone or smartwatch. I have a free app on my Android smartphone, CallU, which can record every incoming and outgoing phone call I make. I use it to record interviews, but it could as easily be used by a disgruntled employee gathering an archive of recordings to support a grievance case, or by an employer looking to get rid of a worker deemed troublesome.

It can even happen to the leader of the free world. In August, White House staffer and former contestant on Donald Trump’s reality TV show The Apprentice, Omarosa Manigault Newman, released a recording of President Trump expressing his surprise that she was leaving the West Wing. Manigault Newman had just been fired by White House chief of staff John Kelly, whom she also recorded, in the White House Situation Room, where the President receives top-secret briefings and which is supposed to be off-limits to mobile phones and recording devices.

Manigault Newman claimed she was making the recordings to protect senior White House figures from the lies of others. But the recordings, which did little damage to Trump compared to the indictments of key aides over their Russian and Ukrainian connections and the ongoing Stormy Daniels saga, were viewed by the President as the ultimate betrayal.

His response came in the form of a series of tweets so scathing of Manigault Newman, he later felt the rare urge to justify posting them.

“While I know it’s ‘not presidential’ to take on a lowlife like Omarosa, and while I would rather not be doing so, this is a modern day form of communication,” he tweeted.

Donald Trump et al. that are talking to each other: US President Donald Trump and Omarosa Manigault Newman. Photo/Getty Images © Bauer Media US President Donald Trump and Omarosa Manigault Newman. Photo/Getty Images

Covert technology

The pen can be mightier than the smartphone when it comes to making recordings. Horowhenua District councillor Ross Campbell shocked his colleagues in September when, during a public finance audit and risk subcommittee meeting that was being live-streamed, he revealed he would be recording future meetings himself.

“From this meeting forward I will, by police advice, be carrying a video camera to ensure my health and safety is not compromised … and I will have this or other suchlike cameras with me, and [they] will be used to create a boundary of respect towards me,” he told his fellow councillors, including Ross Brannigan, who said the move stemmed from a verbal altercation he had with Campbell. He told media that Campbell’s decision to wear a camera was “quite pathetic”.

The rise of the “bodycam” has come with the miniaturisation of digital cameras to fit into devices like the camera pen that Campbell will slot into his shirt pocket. It isn’t surprising that the police recommended such a measure – there have been growing calls from police officers themselves to be equipped with bodycams, which are already used by parking enforcement, animal welfare and corrections officers around the country and are intended to improve the tone of interactions with the public.

We are not yet at the point of radical transparency, but as we go about our business – ride in a taxi, shop at the supermarket, visit an ATM or talk on the phone to call-centre agents – we are increasingly being recorded.

These recordings are generally done legally and with our knowledge. Even the Ross recording of Bridges probably didn’t break the law – it is not illegal to make a recording of a conversation without the other person’s knowledge. But recording and releasing it could be a breach of the Privacy Act, depending on the circumstances.

The scrutiny we face in the public realm when dealing with companies or government agencies is crossing the line into private life as people file away digital recordings of conversations or take screenshots of instant message conversations before they expire. Technology is not the culprit. Eroding trust and confidence between adults who should know and do better is what compels people to hit “record”.

This article was first published in the November 3, 2018 issue of the New Zealand Listener.

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