Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
The other day, a student was recording his teacher and the other students in his science class with his smartphone. The teacher noticed, spoke to the student, and sent him on his way. However, she then made sure by email that each of his teachers was made aware of what the student did.
I was included on the email and I called the student down to the office and kind of threatened him with prosecution on the basis that he violated the law because Connecticut is a “two-party” state. Sadly, the student’s mother is a smarty-pants and she called me the next day to set me straight, explaining the “two-party” state statute relates only to telephone conversations. However, is the “one-party” law only for 1:1 in-person conversations? Wouldn’t it be eavesdropping by statute if a student records his teacher in a classroom since the discussions aren’t all 1:1 and the conversations that are 1:1 don’t include the student who is recording?
You are correct in understanding that there are two laws in Connecticut about recording conversations, but they don’t apply to the situation you describe. Accordingly, you and your school should publicize a rule prohibiting the conduct in question.
First, the whole “two-party” and “one-party” distinction deals solely with the prohibition against recording telephonic communications. Connecticut is indeed a “two-party” state (as the smarty-pants mom said). That means that it is illegal to record a telephone conversation without the knowledge of both parties (with exceptions, such as judicially-authorized wiretaps). Adopted in 1990, the Recording Statute (Connecticut General Statutes § 52-570d) establishes a private right of action against a person who uses “any instrument, device or equipment to record an oral private telephonic communication” unless there is (1) consent of all participants, (2) prior notice to all participants, or (3) a beep tone alerting all participants.” There are a number of exceptions to the prohibition in this statute, including emergency personnel, law enforcement personnel, recipients of threats of extortion, bodily harm or other unlawful requests or demands, or persons who receive calls that occur “repeatedly or at an extremely inconvenient hour.” By contrast, some other states are “one-party” states, which means that recording a conversation is permitted even if only party is aware that the conversation is being recorded.
Another statute comes closer to addressing your concern. Adopted in 1969, the Eavesdropping Statute (Connecticut General Statutes §§ 53a-187 through 53a-189) provides that “a person is guilty of eavesdropping when he unlawfully engages in wiretapping or mechanical overhearing of a conversation.” The statute excludes wiretapping by criminal law enforcement officials in the lawful performance of their duties. “Mechanical overhearing of a conversation” is defined as the “intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.” The consent of one of the parties defeats the prohibition, and thus any recording under such circumstances is not a crime.
It is unlikely that relying on this statute in this case will get you anywhere. Activities in a classroom are different from a “conversation” and a student assigned to that class is “present” (at least physically if not always mentally). While you are certainly better off to know about the Eavesdropping statute, I would not suggest that you cite that statute in dealing with this student and this situation.
That all said, you and your school have every right to decide that covert (or not so covert) recording of classroom activities will not be tolerated. The statutes authorize discipline for students whose “conduct on school grounds or at a school sponsored activity is violative of a publicized policy of such board or is seriously disruptive of the educational process or endangers persons or property.” Section 10-233c (the suspension statute). One can argue that surreptitiously recording teachers or students in class is inherently disruptive of the educational process. However, it is advisable to adopt an explicit rule prohibiting such conduct and to notify students of that rule. If that prohibition is not already in the student handbook, you can add it now electronically and add it to the hard copies (if any) next year.