Sunday, January 27, 2019

Explicit Consent

A couple of decades ago when I was living in West Virginia, I made local news because I had publicly objected to a new city law requiring convenience stores to mount security video cameras.  These cameras and their recordings were to be accessible to the police at any time.  Effectively these were government electronic surveillance devices within privately-owned places of business in which the businesses were obligated to purchase, operate, and maintain the equipment on behalf of the government.

About a decade later, I was shocked to learn that audio monitoring was used at a state university library desk where library patrons request books and information.  Apparently you grant implicit consent to having your conversations recorded merely by entering a building in which a decal has been positioned somewhere within to meet the minimum legal requirements for notification of monitoring.  It was not apparent to me that there was an option to deny consent to audio monitoring and still be able to use this government public facility.

More recently as a juror, I saw a video and audio recording used as evidence against a defendant in a trial in which it was clear that the defendant was not aware that he was being recorded.  Failing to notice that a camera in the back and off to the side of the interrogation room was still recording after the police had left, the arrested man had mistakenly assumed that his verbalized slurs against his accuser were private to himself.  These angry mutterings were later used against him in court in what I assume was an attempt to show state of mind.

This month I was checking out a local makerspace which provides members with shared onsite access to woodworking tools, 3D printers, electronics equipment, and virtual reality gear.  The makerspace I visited also provides video and board games for use by members and visitors.  Attendees are encouraged to socialize and learn from each other in an environment conducive to the collaborative exchange of ideas.

About an hour into my visit, I discovered the video and audio monitoring notice on the snack room refrigerator.  I then spotted the video camera above the couch where I was sitting and had been talking with others.  If I had first seen the video camera before reading the notice, I would not have assumed by default that there were also microphones that could record my conversations as well.

What security benefit does audio monitoring provide over video monitoring other than providing evidence of spoken thoughtcrime? Since the privacy versus security trade-off is much worse with regard to audio monitoring compared to video, there should be a higher bar above and beyond that of implicit consent.  Just as we currently have laws in some states forbidding hidden video cameras where people have a reasonable expectation of privacy such as bathrooms and changing rooms, we should also have a law banning audio monitoring without explicit consent anywhere microphones are not immediately obvious to those within recording range since all conversations are potentially private.

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