On Spying, and One-Party and Two-Party Consent Laws for Recording Conversations

     The principles of mutually beneficial voluntary exchange, and Pareto improvements, tell us that nobody should ever be involved in a social situation, economic transaction, nor political association, which deprives them of the right to consent, nor of the right to negotiate and interact with others at a level of equal standing and power.

     This is to say that we must always recognize others' rights to give consent, but also their right to be fully informed about what they're getting involved in, and their right to deny or revoke consent if they believe that they don't stand to benefit from the action or decision whatsoever.

     Externalizing costs, and negative consequences, onto other people, without their knowledge or consent, is unacceptable, if we want to create an economy and a society in which nobody is pressured to sacrifice, or give up their rights, such as their right to fully understand the things they are consenting to.

     The importance of the principle that everyone involved in a decision should both benefit, and participate on a voluntary basis, is essential to creating a free and fair economy, and a free and fair society.

     However, in cases when someone is violating your freedom to remain unharmed, or your freedom to avoid being defrauded, we have to consider the possibility that that person's right to fully consent to whatever happens to them, should no longer be respected.

     It's not that we shouldn't respect a person's right to deny consent; we should. The problem is that a person who has just shot someone to death, or stolen something, will usually not consensually submit to arrest, so they have to be taken into custody against their will.

     They didn't respect your right to deny consent, so why should you respect theirs? They made it clear that they don't even believe in your right to deny consent, and that they don't respect your boundaries.

     Now, we could avoid the need to force people to submit to arrest, by allowing people to volunteer to become outlaws (and live outside the law, without its protections). Allowing people to become outlaws would remind criminal suspects that they have an incentive to turn themselves in, because failure to do so would mean that they must forfeit the state's protection.

     But for people who don't have time to learn about 7^th Amendment methods and the rules of the Old West, and time to start a movement to re-popularize those sorts of rules, I'll restrict this discussion to laws that currently exist on the books today.

     And so, I turn now, to the subject of one-party and two-party consent laws, in regard to recording conversations via audio and/or video.

     Ten states have what are called "two-party consent laws", in which both or all parties to a recorded telephone call or other conversation must give consent to be recorded (and know they are being recorded in the first place), in order for the recording to be made legally and to be admissible as evidence in a court of law.

     Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington (nearly all of which are governed by Democrats).

     It would seem that two-party consent laws protect the consent of every person involved.

     With this in mind, and with the need to preserve the full consent of everyone involved, it would seem that one-party consent states have effectively legalized spying on someone and recording them without their knowledge or consent!

     Surely such an action should be banned, and both parties' consent required.

     On the other hand...

     As a libertarian, the right to privacy is an important concern for me, and it always will be. But again, as a libertarian, the power of the government to legalize its own crimes, is also a huge problem. Maybe even a more important problem.

     I say this because we need to think about whether it's more important to protect somebody else's right to privacy (such as a police officer or politician) than it is to protect yourself (your body, and your freedoms, and especially your freedom from being defrauded by elected officials).

     I worry that these two-party consent laws are just a scam - invented by blue-state politicians - intended to protect lawyers', judges', and police officers' privileges to lie to us about the law, and commit crimes, and then suppress our ability to record them while doing so.

     And the politically well-connected, will, and do, suppress our ability to record them. Even if we are only recording them for our own safety and protection, and to ensure that we are not incriminated nor robbed of the ability to create an accurate account of what happened to us while in contact with such legal authorities.

     After all, we could lose our lives during interactions with police, and we can't exactly file a complaint against the police when we're a decaying dead body.

     What the debate about one-party consent laws should come down to, is the issue of whether the person who is being filmed against their will, has a reasonable expectation of privacy, based on whose property they're on, and what they're doing, when the incident is filmed or audio-recorded.

     If a person is trespassing, or violating a law, or starting a fight – and that's why they're being filmed in the first place – then they have no right to expect privacy.

     You forfeit privacy when you attack someone. Not because privacy can be turned from a right into a privilege, or anything like that. You lose privacy when you deliberately subject somebody to abuse, harm, or theft, and when you invade the privacy of someone who has done nothing wrong (and/or is not reasonably suspected of having done anything wrong, nor is suspected of having begun to plan an attack or the commission of a crime).

     Your right to privacy ends when you start infringing on others' rights to enjoy their property, or a public place, calmly and in peace. You cannot make an assembly violent, and then expect to have your “right to privacy” respected. That is just the right to shrink from public controversy after you have done something wrong; it is the right to remain unresponsive and irresponsible. The ancient Romans made it clear that citizens do not have such a right.

     If any type of consent laws for recording conversations, should be banned, then it shouldn't be one-party consent laws (which afford “privacy” to criminals, corrupt police, and professional liars); it should be two-party consent laws!

     Or, at the very least, states that have two-party consent laws, should pass amendments to those laws, which specifically exempt people who believe they may be under arrest, and witnesses to (and victims of) crimes who attempt to capture video evidence of those crimes. Additionally, whistleblowers. These include people like Edward Snowden, who arguably “spied” on the National Security Agency (N.S.A.) to report their unconstitutional bulk data collection.

     After all most of the bulk data collection that the N.S.A. did, was done under conditions of zero-party consent. So the need to stop zero-party-consent data mining, arguably made it necessary, or at least advantageous to our freedoms, to sacrifice two-party consent, in order to preserve respect for one-party consent.

     By this, I mean that it became necessary to sacrifice the government's supposed need for “privacy” (or rather, secrecy in their unconstitutional activities), to promote the greater good. I mean that every person should be free to film what they reasonably believe to be criminal wrongdoing, if it is necessary to procure evidence, and preserve their rights. Especially if secret filming or audiotaping is the only way to provide a reliable record of what happened.
     As long as you don't unreasonably invade someone's privacy, and you believe that your or someone else's safety or freedom is at stake, then "spying" is fine. If this seems unfair, then think about it this way: Abusers typically lie to people, and hurt people, "in private". That is, in what they think is private. If there are two people present, then the only witness is also the victim. To use video or audio tape to record an incident, is to create a witness, which is not a victim (i.e., the videotape or audiotape). Also keep in mind that abusers treat people differently in "private" from the way they treat them in public. Finally, if taken literally, "private" could imply that only one person is present. There's really nothing "private" about attacking or abusing someone else while nobody is around. That is not private; there is another person there.
     It is often necessary to drag "private" affairs or problems into the public, in order to expose the fact that an incident happened, to a third party who was not involved; in order to get an outside perspective, and in order to find a neutral party who can moderate the dispute. An abuser and his victim will typically not come to a peaceful, equitable arrangement without an unbiased outside influence to moderate or arbitrate.

     If you don't want to be filmed, then don't do anything wrong.

     This is not to say that anyone who is filmed against their will, is doing something wrong. It is not to “victim-blame”, nor is it to say that it is OK if the consequences of your free speech include being harmed or being filmed against your will.

     It is simply to say that if you keep going around harming people, starting fights, daring people to fight you without hitting them, pointing guns at people, threatening people, or psychologically abusing or brainwashing people all the time, then you should hardly be surprised when someone pulls out a camera or a camera-phone or a tape recorder, and starts capturing proof.

     Hell, sometimes taking out your phone and filming, and threatening to broadcast it and show it to other people, is the only way to get an aggressive person to stop doing what they're doing! It is not a “threat”, nor a deprivation of income, to expose aggressive and disrespectful people, to the real-life social consequences of their actions (as long as you're not physically hurting them without cause, or slandering them).

     Spying is wrong, except when it is the only realistic way to save lives, or to protect defenseless or systematically discredited people.

     Spying on dangerous people might make us feel dirty or ashamed, but it is sometimes necessary, to prove things that most people would never believe happens behind closed doors.

     Aggressive people mistreat others, when there is nobody whom they respect, around to keep their behavior in-check. And there are very few people for whom aggressive individuals feel a sense of respect in the first place.

     Just as they say about allegations of government corruption, to cure manipulators' and aggressive people's mental illnesses and personality disorders, "sunlight is the best disinfectant".

     To argue otherwise is to be a "Karen" who projects on others, saying that she feels attacked, when she is non-violently outed for attacking or harassing others.

Written on July 17^th, 2020

Edited and expanded on September 4^th, 2020
and March 27th, 2021

Published to this blog on September 4^th, 2020