This is the first in what I hope will be an ongoing resource for up and coming filmmakers. I want to warn you guys that it’s going to be a bit dry… I’ve fallen asleep twice while writing it. So if you want to read something fun, take another pass at my Avengers analysis. To kick off the inaugural Filmmaker-2-Filmmaker, I’m going to talk about something that doesn’t seem like a big deal, but it’s an issue that shows up often in documentaries and reality TV: recording phone calls, or, in legal speech, wiretapping.
Normally when people think of wiretapping, they think of this:
A couple of federal agents sitting in an unmarked van decked out with monitors and microphones listening to phone calls made by gangsters. But in reality, you see it all the time when your on-air talent makes a phone call while being filmed. In my producing days, we recorded phone calls for a variety of reasons: maybe a phone call made more logical sense to the narrative we were telling; maybe the person wasn’t willing to be put on film; maybe the person lived in another state and we didn’t have the budget to fly cast and crew to that location for an on-camera meeting. I once produced a show where we filmed a phone call instead of trying to get a live interview because the subject had a history of violent criminal activity and was an accomplished bow hunter. It would have been great to get him on screen, but it just wasn’t worth the risk to our safety.
So how do you protect yourself if you want to make an on-air phone call because you either won’t or can’t get your subject live? The very first thing you want to do is make a good faith attempt to get a personal depiction release from anyone whose voice you want to use – yes, even if you’re only going to use their voice and even if you don’t identify them by name. A depiction release should be a major part of any producer’s arsenal and is the best and easiest way to protect yourself legally. [If you need help drafting one, drop me a line. I’m going to tackle the topic of release forms in a future post.]
But maybe the person won’t sign a release form, or you make an executive determination that trying to get a release would be futile. Then what do you do?
You determine if you are filming in a one-party or two-party consent state. Here’s why: if you are in a one-party consent state, as long as one of the phone call participants knows you're filming the call and allows you to film it, you will generally not be subject to criminal or civil penalties, even if the other side does not consent. Conversely, if you are in a two-party consent state, both phone call participants must allow you to film the call; without consent of both sides to the conversation, you could be liable for civil and/or criminal penalties depending on the state. Let’s take a quick look at some sample penalties for violating the consent laws:
- Massachusetts is a two-party consent state. A violation of the consent law carries a maximum criminal penalty of five years in prison and a fine of up to $10,000. Mass. Gen. Laws ch. 272, § 99(C). Massachusetts also permits civil suits against persons who violate the consent laws. Courts may award actual damages, punitive damages, attorneys fees and litigation costs. Mass. Gen. Laws ch. 272, § 99(Q).
- California is also a two-party consent state. A first violation of the consent law is punishable by a fine of $2,500 or less and/or imprisonment of less than 1 year. Subsequent offenses carry a fine of up to $10,000 and a 1-year imprisonment. Cal. Penal Code §§ 631, 632. Like Massachusetts, California permits civil suits. Anyone injured by a violation of the consent laws can recover damages of $5,000 or three times the actual damages, whichever is greater. Cal. Penal Code § 637.2. The court may also impose an injunction preventing the use of that wiretapped phone call. Cal. Penal Code § 637.2(b).
- In comparison, New York is a one-party consent state and does not permit civil suits against persons who violate the consent laws.
To determine what type of state you’re in, you should check out the Reporters Committee For Freedom of the Press. This website is a great resource for video journalists and documentarians. It has a handy chart outlining which states are one-party or two-party, which states have criminal and civil penalties, and will give you detailed breakdowns of how the law works in each of the 50 states. I used this site all the time during pre-production and principal photography and I like to think that having this handy resource kept my colleagues and me out of trouble. It’s such an invaluable tool that I’ve gone ahead and placed it on my Resources For Filmmakers page.
The analysis doesn’t end there, however. You may be in a one-party consent state, but if you have to make a phone call across state lines, it falls into federal jurisdiction. In that case, you should assume that a two-party consent law applies, even if you’re making a call to another one-party state.
Unfortunately, if you find yourself in a two-party consent situation and one of the parties won’t consent, there really aren’t many workarounds if you need that phone call for narrative purposes. In the few instances where that happened to me, I simply made the call off-screen and then staged it later with the information gathered from that call (hey, it’s reality TV!). I want to give a word of caution here: if you’re in a two-party state and you don’t get consent from the party being called, you cannot simply film the call and drop out the sound later. The criminal and civil penalties are not generally based on whether the other side’s voice is heard, they’re based on whether you knew or should have known about the consent laws and knowingly violated them anyway.
At the end of the day, producers aren’t lawyers. Even if you have the best intentions and good information, you can still screw up (i.e. recording an interstate phone call without both parties’ consent). If that happens, don’t try to lawyer yourself out of the situation. Call me or an attorney you trust and inform them what happened. There are always ways to protect yourself, even if you step in it.