Legislator Introduces Bill To Legalize Recording Of Conversations With Feds

Legal Issues

from the has-its-problems,-but-still-an-improvement dept

“Accountability” is a word often tossed around by government officials in an effort to appear trustworthy and genuine. However, this is seldom followed up by action. Everyone agrees it’s a fine principle, but far too idealistic to apply to the realities of governing, apparently. Rep. Lynn Jenkins seems to both 1) believe the government needs more accountability and 2) be willing to do something about it.

On Wednesday, Jenkins introduced legislation that she says would expand the rights of Americans to record their conversations with federal employees. Under current law, people are only able to lawfully record certain in-person conversations with IRS officials.

But under Jenkins proposal, that law would be expanded to allow people to record both in-person and phone conversations with most agencies in the executive branch. It would also require these government officials to tell people they have the right to record these conversations.

Jenkins’ bill would cover conversations with personnel from a large number of agencies that fall under the “executive agency” label, which would include agencies from the Dept. of Justice and Dept. of Defense, among others.

The specifications of the bill allow individuals to record what could be loosely termed “protective” recordings — the sort of recording that would prevent “he said/agency said” discrepancies further down the road.

Any employee of an Executive agency who is conducting an in-person or a telephonic interview, audit, investigation, inspection, or other official in-person or telephonic interaction with an individual, relating to a possible or alleged violation of any Federal statute or regulation that could result in the imposition of a fine, forfeiture of property, civil monetary penalty, or criminal penalty against, or the collection of an unpaid tax, fine, or penalty from, such individual or a business owned or operated by such individual, shall allow such individual to make an audio recording of such in-person or telephonic interaction at the individual’s own expense and with the individual’s own equipment.

This would seem to cover conversations with such federal agencies as the ATF, DEA and the especially recording-shy FBI, the latter of which still prefers to use its own pen-and-paper accounts of “interviews.” Unfortunately, even though these agencies (along with the DHS) fall under the “executive agency” banner, the bill’s list of exceptions would seem to make almost every conversation with these agencies off limits.

EXCEPTIONS.—

(1) CLASSIFIED INFORMATION, PUBLIC SAFETY, CRIMINAL INVESTIGATION.—This section shall not apply to any in-person or telephonic interaction—

(A) that is likely to include the discussion of classified material;
(B) that is likely to include the discussion of information that, if released publicly, would endanger public safety; or
(C) that, if released, would endanger an ongoing criminal investigation if such investigation is being conducted by a Federal law enforcement officer (as defined by section 2 of the Law Enforcement Congressional Badge of Bravery Act of 2008) who is employed by a Federal law enforcement agency.

The “endanger public safety” exception is nothing more than an out for any agency remotely concerned with “fighting terrorism.” This pretty much allows the DHS to prevent recording of conversations, even if the subject matter would seem to be completely unrelated to terrorist activity. Furthermore, the wording allows ANY agency to decide what will or won’t “endanger” the general public, with the likelihood being that most conversations carry that potential.

The FBI (along with the ATF, DEA and others) will be able to use exception (C) to prevent recordings, as almost all of these agencies’ conversations will pertain to some sort of ongoing investigation.

Jenkin’s bill may push accountability on some federal agencies, but the ones with the most worrying track records probably won’t feel a thing. It would be extremely tough to sell this bill without the exceptions, but their inclusion severely undercuts the stated aim.

Filed Under: government, laws, recording conversations