A news item caught my attention today. An airline pilot was recorded while ranting about in the most unkind and unprofessional manner about the stewardesses on the plane. He didn’t realize his microphone was on and that his words were being captured. He was just saying what was on his mind — and it was not pretty.
Obviously he trusted the person he was speaking to. But he was unaware that his words were going elsewhere — to everyone. It made me wonder — what if this had not been a story about a microphone malfunction, but about a secret recording? In a world of eroding privacy, how might this story apply to the workplace?
There’s this new pen that I see all around called the Livescribe. I’ve noticed that many people are picking up this cool device (a nice gift?). It’s a pen that allows you to take better notes. It is like a spy-pen crossed with the technology that my kids used when using the LeapFrog LeapPad reading system — where you touch the pen somewhere on a page in order to make it read the words. The Livescribe pen has a similar feature, but for grownups. You have a special notebook, and by touching a part of the page, the pen begins to record the room. Moreover it associates the parts being recorded with the words and notes being written. And it can play back the meeting. It has a bunch of really cool features too (check it out if you like).
What are the implications of recording someone? Is it legal to do so without consent? Is it proper? As much as I was impressed with the pen, I wondered — isn’t this just a bit creepy?
I’m not a lawyer, but I can use a search engine (beware) and it seems that the legal answer depends on where you are. In the US we have federal laws related to wiretapping — historically phone lines. The rules were altered as part of the Patriot act, allowing the feds to listen into the conversations of suspected terrorists under certain conditions. But if you are neither a fed nor a suspected terrorist, what do you need to know about this? Well the individual states in the US have their own regulations too. Some states allow recording a conversation only if you are one of the participants in the conversation, but you cannot bug a room and record two other people without their consent. Some states require “dual consent” — where both parties in the conversation agree to the recording. California and Massachusetts are examples of dual-consent states.
When I worked at Forrester Research (in Massachusetts), we recorded research interviews. We had a script where we’d ask the person being interviewed if it was OK for us to record the conversation for note-taking purposes. We explained that we wanted to make sure that we captured their answers accurately and get good verbatim quotes. But we assured them that we would not publish anything without first giving them the opportunity to review the text and get their OK or edits. No one said “no” to that. We established a platform of trust — where we explained what we were doing and why. We asked permission and they addressed the potential concerns. After all, we were professional analysts — this was part of the business. Our clients appreciated our professionalism.
But what if you don’t disclose that you are using your note-taking recording pen — but you simply use it in a regular staff meeting, or a one-on-one meeting with your boss?
Clearly this poses a problem. Not only might it violate the law if you are in a dual consent state, but if you sync the pen to your work computer, your company is now involved. They have possession of the recording on their equipment, they could be subpoenaed for the evidence and implicated in a privacy suit. This depends on your workplace. Some companies have clauses in their employment contract in which you explicitly consent to the company’s right to record your conversations made on their premises. Does yours? Who knows? Who thinks of these things when they use their nice gift pen?
Aside from the legal complexities, there is also the general violation of trust. Consider what that pilot thought when he found out that his rant was being recorded. He was probably very upset and wondered if people would keep his rant a secret. He probably felt scared and violated since he lost all power. Does he trust his co-workers now? No, I’m not sympathetic to him and his hateful sentiments, but I do observe that all trust evaporated when he discovered he was being recorded. Discovering that you are not on equal ground with someone, but you thought you were, is a catalyst for distrust. Imagine if you learned that a co-worker records your meetings without your knowledge — how would you feel about your team?
I shared this thought with a friend (who is a lawyer) and she gave me some advice. If someone uses one of those pens at a work meeting, you should say something like “BTW, I don’t consent to being recorded.” But this is difficult advice to follow — since it contains a tacit accusation. Then again, you can try to couch it nicely… e.g. “To make sure that we brainstorm candidly, let me know if you want to use that pen to record this meeting…” At least you might be recorded saying this and can subpoena it as proof. But if you are going that far — you probably have worse issues to deal with.
We live in an age where privacy is elusive. Those who plan to use these pens can set the trust-tone at their workplace. If they are forthcoming (like we were at Forrester) they build trust. If they pretend they aren’t recording you, they erode trust. In fact, they put their company at risk, while ruining productivity. This pen is indeed mighty.