After Donald Sterling, Should We Look More Closely At Recording Laws?15:59

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After Los Angeles Clippers owner Donald Sterling was caught on tape making racist comments, some are looking at the laws that govern recording — specifically, recording others without their consent.

First Amendment attorneys Marc Randazza and Joel Kurtzberg join Here & Now's Jeremy Hobson to discuss one-party consent recording laws and the European Court of Justice's recent decision to let people ask Google to redact certain information about themselves from its search results.

One-Party Consent Laws

The majority of states have one-party consent laws, meaning only the recordist needs to know about and consent to the recording — basically allowing secret recordings. Some states, including California, have two-party consent laws, in which the recordist and the person being recorded need to know and consent to the recording.

Kurtzberg thinks the laws as they are now are sufficiently robust. However, Randazza says he would like to see every state have two party consent laws, although he thinks they should be narrowly tailored.

"If you're in a place where you have no reasonable expectation of privacy, I would advocate for an exception [to two-party consent]," Randazza said. "I would rather see these laws narrowly tailored to cover conversations that are presumed to be private."

E.U.'s Google Decision

The European Court of Justice decided recently that people have the "right to be forgotten"  and could ask Google to remove "inadequate, irrelevant or no longer relevant" data from its search results if a person requests it.

There are privacy interests and there are First Amendment or free speech interests. And it really is a question of how we balance them.

Joel Kurtzenberg

Kurtzberg think the decision is problematic.

"There's a real problem with sanitizing history, even on the net," Kurtzberg said. "There are a lot of scenarios where there'll be really important, newsworthy information buried from public view."

However, Randazza says the decision makes exemptions for newsworthy information and for public figures.

"The decision only really effects search engine results," Randazza said. "It does not extinguish primary information and it also has a limitation for any information that might be of public interest."

Balancing Privacy And Free Speech

Randazza thinks the laws are not adapting to changing technology.

"Am I always looking over my shoulder wondering is there a camera here, is there a recording device there?" Randazza said. "And you don't have to be doing something wrong to feel that way."

But Kurtzenberg says the laws for the most part weren't written with the Internet in mind, but are catching up to the changing landscape.

"This is really a question of line drawing," Kurtzenberg said. "There are privacy interests and there are First Amendment or free speech interests. And it really is a question of how we balance them. And I think that here in the United States, there is not just in our law — but as a matter of our politics and policy — a strong belief in ... the marketplace of ideas. That more information is better. The more information that gets out there, society is better off, because there is this march toward truth."


This segment aired on May 26, 2014.