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August 16, 2010


While clearly this law applies to telephone conversations, I'm not so sure it applies to the classroom. The primary requirement of successful prosecution is a reasonable expectation of privacy on the part of the parties being recorded.

Clearly you have a right to privacy when you're talking to someone on the phone. It could even be argued you have a reasonable right to privacy talking to a friend at a table in a reastaurant.

However, I have a little difficulty imagining how you have a right to privacy when you're in a classroom with 30 other people, and you're talking loudly enough to be recorded by this pen? I think there, the expectation is that what you say is now public, isn't it?

Thanks a lot for commenting, Spencer! You make an excellent point. I wonder if there are precedents out there about people being sued for using smart pens in two-party consent states. I guess smart pens are a bit too new for there to be a lot of legal cases about them already. Or maybe the charges just get dropped. As I told my students last year: I "highly doubt" (euphemism) legislators were thinking about students trying innovative ways to learn the material when they wrote the law, but they (my students) don't want to be the ones to find out whether they have a case in court or not.

I was reading in the Chronicle of Higher Ed about professors recording podcasts or videos of themselves giving the lectures and putting them up on the course website - maybe if the Gen Y requests more diverse teaching methods, profs will put recorded audio by themselves on the Internet, which would solve the problem.

Thanks for commenting!

A quick bit of googling yields the attorney general's website that talks about this statute, "face-to-face conversations where there is an expectation of privacy/non-interruption" is mentioned on many of the pages relating to this basically the fact that it is a classroom would probably prohibit this expectation unless the teacher went out of their way to disallow this. In fact if it was a state university it would be illegal under the law for the professor to out right ban recording. The law only provides protection to courts barring all other state institutions from prohibiting recording. Most of these laws are about wire tapping and electronic surveillance in much more private settings. Also additional research yields that federal law states that it is always legal to record if the recorder is in plain sight. So I think the people at best buy are probably ok.

Thanks for sharing, Ausitn! I guess people who buy this for their work meetings and don't tell the other attendee(s) still aren't off the hook, though. Those things really look like pens rather than recorders.

About the expectation of privacy in the classroom: I think one issue is that some students want to be able to ask questions without having to worry they'll look dumb on someone's audiotape forever after, because the classroom is a learning environment. I don't know the details of the case at Lehigh, though. It does seem that a student complained to the chairman. Smart pens do give the students who own them a bit of an advantage.

With the incorporation of more and more technology in the classroom, the issue will probably become moot within a few years anyway. Students will just get used to having voice recordings of the lectures provided by the professors themselves and won't even need to use their smart pens.

Not only is there no expectation of privacy in the classroom, but the teachers' lecture is "commercial" speech, since it is being paid for by the students, who obviously have a right to record what they're paying for.

The Pennsylvania Supreme Court actually has held that you don't even have a reasonable expectation of privacy in telephone calls conducted from your own home:

"Qualitatively different than a face-to-face interchange occurring solely within the home in which an individual reasonably expects privacy and can limit the uninvited ear, on a telephone call, an individual has no ability to create an environment in which he or she can reasonably be assured that the conversation is not being intruded upon by another party. On the telephone, one is blind as to who is on the other end of the line. Thus, while society may certainly recognize as reasonable a privacy expectation in a conversation carried on face-to-face within one's home, we are convinced society would find that an expectation of privacy in a telephone conversation with another, in which an individual has no reason to assume the conversation is not being simultaneously listened to by a third party, is not objectively reasonable."

Commonwealth v. Rekasie, 778 A.2d 624, 632 (Pa. 2001). It seems a bit of a stretch to argue that a student in a classroom with thirty other people would have a reasonable expectation that his or her oral statements would remain private.

It would also seem to be a Bit of a Stretch to state (as Commonwealth v Rekasie) that since you CANNOT prove that no one is "listening in" to your telephone conversation, you THEREFORE have no RIGHT to expect that there is no one listening in to your phone conversation, and, QED, have no right to privacy.
This sophist gobbledegook can obviously be extended to high-sensitivity, directional and shotgun mikes which can easily pick up distinct conversations in crowds, or to laser-modulation and audio conversion mikes which can "listen" to conversations within a home by monitoring the vibrations on the window!
Therefore NO ONE has a right to privacy!
Except police, and judges and elected officials, by statue.

Richard, Keith and Robert - thanks a lot for commenting!

Richard - I don't think the issue at Lehigh was about taping a professor. I agree that taping what the professor says can add to a student's understanding, especially for the iPod generation; given the amount of money students pay in tuition, I think it makes sense to let them pick the learning technique that suits them best. Lehigh actually participates in the "iTunes U" program, although I'm not sure how often professors volunteer for their courses to be recorded. (More info at http://www.apple.com/education/itunes-u/ )

I think the issue was with taping other students, which might also be a convenient way to skirt the issue of fairness in having some students but not all use advanced technological tools in the classroom, since smart pens are rather hard to spot in the lecture hall. I also think that students not aware of the two-party consent law might use their smart pens overly enthusiastically, for instance recording their roommate talking about common friends in their dorm room and then posting the recording for their friends to listen to once the roommates have a falling-out.

Keith - thanks a lot about finding this PA Supreme Court case! That's so helpful. I wonder what this means for coworkers being taped in a (small) meeting. Let's say students are fine from a legal standpoint taping lectures, and those who don't want to be taped simply have to wait until the end of the lecture to ask their questions in private. What about faculty meetings where some technologically-minded profs might bring along a smart pen?

Robert - great points! In this day and age, people have a lot of rethinking to do about what constitutes a reasonable right to privacy. Students in particular are used to post pictures, tweets and Facebook wall posts for others to see, so maybe they'll get used to being recorded too. I do think the lack of control about what's being recorded is a bit galling.

It's so easy for someone to tape only part of someone's speech and distort the person's meaning, for instance if a student makes a joke that is funny when taken in context as part of a discussion but can sound hurtful if listened to alone. If the person isn't making his/her own recording too, it could become very hard for that person to defend him/herself. I think the intent with which someone records a speech is important too.

i read the post and the first comment. this post is way off base. there is no expectation of privacy when someone is speaking publicly. end of story. copyright issue wrt to the professor's original research that he is lecturing about that gets published? now THAT would be a very interesting discussion...

There are many alternatives to the SmartPen if students want to record audio.

Using a laptop with microphone attached, you can fire up Word or OneNote and record audio, linking it to the text that you are typing. There are even features to block the noise of you typing on your keyboard. To top it all off, you can easily hide the record button so that no one realizes what you are doing.

Not as good as the SmartPen recording wise, but it gets the job done pretty nicely.

This whole discussion about "reasonable privacy" is actually very clear in most states and courts. If you are in a private space which is in your control (apartment, hotel room) then you cannot be recorded without your permission. In a public space (baseball game, wedding, even walking on the street) then you accept that what you do or say may be recorded, and unless it is used to slander an individual or used for profit, then there is no issue. In public spaces a simple warning of cameras or recording devices is sufficient, and even then, a sign isn't required on every recording device as long as the device is reasonably detectable by the average person. If individual recording is prohibited at an event or in a space, then clear notice must be given (i.e a music concert or government briefing).

Your "warning" to students was unfounded and somewhat alarmist in my view

Thanks for commenting! Sorry it took me a while to post some of your comments. I was at a conference my department was hosting. You all make good points. The fact remains that someone complained about smart pens. My "warning" to the students is what we've been instructed to say following that incident. I certainly wouldn't decide on smart pen policy by myself. It's great if there's nothing for the students to worry about. I wonder why states have two-party consent laws and make such differences between recording images vs voice if people aren't supposed to have any expectation of privacy in most circumstances (audio-wise - image-wise is definitely another matter, with all the traffic cameras around).

Joshua - yes, there's always some new technology that can be used! I think the best situation would be if all lectures were taped (possibly with the professor alone, not in front of a classroom) and made available to students who could view them from their dorm room. That would level the playing field for everybody. Then lecture times could be devoted to discussing the material. Some profs are already implementing this approach, see for instance http://chronicle.com/blogPost/Killing-the-Lecture-With/26269/ from the Chronicle of Higher Ed. Maybe the use of smart pens is students' way of reacting to the slow adoption by some faculty members of novel teaching techniques.

The issue of copyright between a faculty and his/her university is fascinating in its own right but deserves its own post!



Russ - no I hadn't; thanks a lot for the link! That's amazing. When did real life become a James Bond movie? The product description is fascinating. I'm curious as to how people control what they tape, though. Apparently clipping the pen to your shirt pocket aims the video recorder in the right direction (same as the direction you're facing.) This might mean it tapes a lot of shirts and torsos. It can apparently store up to 1.5 hour of video in .wma format. I can't believe it sells for only $99!

Consent laws vary from state to state. The case law provide for Pennsylvania, while a bit unsettling, is a nice add. Here is something I have not seen as yet in this discussion: Summary of consent requirements by state: http://www.aapsonline.org/judicial/telephone.htm

Thanks a lot for the info, Ratyrell! That's a great link. It's fascinating that the Association of American Physicians and Surgeons thought about this issue too.

Criminalizing audio recording makes it more difficult to gather evidence in various situations like bribe negotiation, where the offender expects a reasonable degree of privacy.
Now I understand why lawmakers would create such a law...

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