01/30/2013 02:40 pm ET Updated Apr 01, 2013

Expect Your Conversations to Appear in Court

As more methods of communication are created, we must expect that we are constantly speaking and writing for a public record. This is certainly a lesson from the recent book authored by Jeff Coen and John Chase, Golden: How Rod Blagojevich Talked Himself Out of the Governor's Office and Into Prison. The Illinois governor was recorded discussing corrupt activities and was reduced to unsuccessfully attempting to explain to a jury that he was merely reviewing without criminal intent a variety of options in a way that many political leaders do.

Law enforcement officials typically need a search warrant to record telephone conversations that will be introduced into evidence at a trial. When just the participants to the telephone conversation are considered, some states require all parties to a telephone conversation to consent to recording the conversation and other states allow a recording by one party without the knowledge or consent of the other. Overhearing a conversation without recording it may be distinguished from recording.

The Vermont Supreme Court in a 2011 decision involving a speakerphone, Vermont v. Wetter, held:

"While a person may have a reasonable expectation that face-to-face conversations with another person in his or her own home are not being broadcast outside the home, we do not believe that a person who broadcasts his or her own conversation to those outside the home without knowledge of the circumstances at the other end of the conversation has an expectation of privacy in that conversation that society would deem reasonable. Defendant has not shown that she had a subjective expectation of privacy in her telephone conversation with the informant. Detective Estes did not require a warrant to monitor the conversation, and admission of his testimony was proper."

The phrase "reasonable expectation of privacy" frequently appears in court decisions that consider the lawfulness of recordings, tapings, or related activities that access communication media. Generally what one says in a public place has no privacy. As technology progresses, what communications are considered public increases and correspondingly the private decreases. Email, even if sent from a closed room, may be subject to a subpoena or pretrial discovery. Communications to and from governmental agencies frequently are subject to open records legislation or Freedom of Information Act requests. Websites, even if password-protected, may not be considered private. Thus it is not surprising that in 2007 the federal judge for federal District Court for the District of Massachusetts would write in U.S. v. D'Andrea and Jordan:

"In many areas of human interaction, Fourth Amendment privacy claims are deemed per se unreasonable. For example, there can be no reasonable expectation of privacy in matters voluntarily disclosed or entrusted to third parties, even those disclosed to a person with whom one has a confidential business relationship."

In 2011 the federal Court of Appeals for the First Circuit reversed the District Court's decision in this case to admit certain evidence because an individual acting at the request of law enforcement officers is subject to the same Fourth Amendment standards as governmental officials.

Additionally, many employers have a privacy waiver provision as a condition of using workplace email. The December 2012 decision of the federal Court of Appeals for the Fourth Circuit, U.S. v. Hamilton, considered if the defendant had given up his marital communication privilege, meaning that emails he sent his wife from his public school computer could be introduced into evidence at his criminal trial. The Court wrote:

"The computer policy ...expressly provides that users have "no expectation of privacy in their use of the Computer System" and "[a]ll information created, sent[,] received, accessed, or stored in the . . . Computer System is subject to inspection and monitoring at any time." Moreover, it is undisputed that forms accepting this policy were electronically signed in Hamilton's name, and that Hamilton had to acknowledge the policy by pressing a key to proceed to the next step of the log-on process, every time he logged onto his work computer."

Consequently, it is prudent to assume that spoken and email conversations will appear in court proceedings and one must endeavor to act accordingly.