Listen to this post

Originally appeared in the CAS Weekly Newsletter

Dear Legal Mailbag:

I am a high school principal, and I respect the value of technology integration in schools. That said, I am growing tired of the misuse of cell phones by students and parents/guardians. More specifically, we have a growing suspicion that during meetings with the administration and with teachers, some students and some parents/guardians are secretly recording the conversations.

For example, I recently scheduled a meeting with a parent who was dissatisfied with the fact that I would not share possible disciplinary consequences of students who were not her children. When she entered my office, I started the meeting with a friendly greeting, and then I stated, “I do not give you permission to record this meeting.” She was very displeased with this, stating rather rudely that I was violating her rights. She stormed out of my office, shouting that she was going to the Board of Education! Did I cross the line? In the future, am I permitted to state that cell phones are not allowed in my office during meetings?



Dear Off-the-Record:

Your meeting, your office, your rules. You may have a public relations problem, but you do not have a legal problem. Legal Mailbag defers to you on whether to adopt the rule that you propose.

Given advances in technology, your concern is legitimate and widespread. Given the opportunities people now have to record others, with or without their consent, a brief review of the applicable rules may be helpful.

The statute most directly relevant to your situation is the Eavesdropping Statute, Connecticut General Statutes §§ 53a-187 through 53a-189. Adopted in 1969, the Eavesdropping Statute provides that “a person is guilty of eavesdropping when he unlawfully engages in wiretapping or mechanical overhearing of a conversation.” The statute goes on to define “Mechanical overhearing of a conversation” 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.” (Emphasis added).

By defining the crime of “eavesdropping” as excluding a situation in which at least one party is present and aware of the recording, the General Assembly has excluded the situation you describe from the prohibition in this statute. Accordingly, if the parent or student is aware that the conversation is being recorded, such recording does not violate the law.

There is another statute, while not directly relevant to your question, that may well be on your mind. As to telephonic communications, Connecticut is a “two-party” state, i.e., it is illegal for one party to a telephone conversation to record it without the knowledge of the other party. Connecticut General Statutes § 52-570d is the Recording Statute 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 that the conversation is being recorded.

To be sure, 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.” However, these exceptions do not include calls from angry parents or others, and thus a person who secretly records a telephone conversation in Connecticut is subject to suit by the person who is secretly recorded “to recover damages, together with costs and a reasonable attorney’s fee.” If you are ever secretly recorded and want to sue, Legal Mailbag knows a good lawyer.

Finally, your question raises a question that is not strictly legal – should you adopt such a rule against cell phones in meetings with parents or students? You will be on solid ground if you adopt such a rule. As you reflect on that, you may be interested in a superior court decision from many years ago now on a different but related situation.

In WVIT, Inc. v. Gray. 1996 Conn. Super. LEXIS 2841 (Superior Court 1996), the plaintiff alleged that a news reporter surreptitiously recorded conversations with her supervisor, both over the telephone and in person. Defendant moved to strike on the basis that the conversations were related to business and could not therefore intrude upon the privacy of the person recorded without his knowledge.

The court rejected that argument, holding that the employer could sue for invasion of privacy for surreptitious recording of private in-person conversations, even though they related to business matters, not purely private matters. The court based its conclusion on the applicable standard for the tort of invasion of privacy:

“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts 652B (1977).

Given this standard, the court held as follows:

In summary, I conclude that a complaint alleging that an employee has for personal reasons recorded conversations of a fellow employee under the circumstances of this case states a cause of action for unreasonable intrusion on the privacy of another by intruding on their “person.” Such actions are an affront to the average person’s sense of dignity and are “highly offensive” to a reasonable person by transgressing boundaries that deserve to be respected.

Similarly here, one may argue that secretly recording school administrators violates their rights as an actionable invasion of privacy. If you want to try to make new law on this subject, Legal Mailbag knows a good lawyer . . .