Ian Ayres has a neat idea about RECORDING PHONE CONVERSATIONS which he published in a "Why Prosecute Linda Tripp?" New York Times P. A17, col. 1 (August 10, 1999).

The prosecution of people like Linda Tripp for secretly taping phone calls is said to be necessary to protect privacy. But what aspect of privacy is being protected? Linda Tripp could go on Hard Copy tomorrow and tell the world what Monica Lewinsky told her on the phone, but that would not be a crime.

In fact, Tripp could have hired a court stenographer to listen in on Lewinsky’s phone conversations and transcribe them verbatim. And that would not be a crime. When you break down our wiretapping laws, what seems to be the crime is creating an unimpeachable record of conversations. Since the substance of the late-night Lewinsky-Tripp chat sessions is not protected, the only thing that is, if you think about it, is Monica Lewinsky’s ability to lie about what was said.

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Our wiretapping laws need to be rewritten. Criminality should not turn on the act of recording but on whether the use was appropriate. As currently drafted, these laws can chill credible whistleblowing and encourage speakers to lie about what they previously said. Indeed, the focus on recording makes the current law under- as well as overinclusive. Simultaneous rebroadcasts of intimate acts --featured in both the movies M.A.S.H. and American Pie --- would not be criminal in some states because no recording was made.

[ http://php.indiana.edu/~erasmuse/w/03.08.21a.htm ]

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