Consent to be Recorded

Heather Stinson

The state of Utah recently proposed legislation that would have made it the thirteenth state to require two-party consent for recordings. It is currently part of the majority of states who only require one party to the conversation to consent. Due to the negative  public uproar, the sponsoring legislators have withdrawn the bill in order to re-craft its broad language. It was no secret that this legislation, while technically sponsored by the Salt Lake Chamber of Commerce, was backed by the Church of Jesus Christ of Latter-Day Saints (hereafter, ‘LDS church’), which is the predominant religion in Utah, and whose members make up almost 90% of all state legislators but only 60% of the states population.

While it may seem fairly normal for business to desire two-party consent laws, what really prompted the push for this law was anything but usual. Towards the end of 2017, a current member of the LDS church created a petition to stop the common practice of one-on-one interviews that occur behind closed doors between LDS church leaders, known as Bishops, and minors. That petition has since garnered over 15,000 signatures, as well as significant news coverage. For their part, the church publically responded to the petition, stating that they had no intention of changing their practices. The LDS church pushed for and supported the legislation to change the law to a two-party consent state as they have recently come under fire for other secretly taped conversations and videos.

The LDS church’s desire for a two-party consent law for recordings seems to be more akin to states who push for what are called AgGag laws. AgGag laws were put in place to protect the agricultural industry after disparaging videos showing animal cruelty or questionable practices in the industry were being shared on-line by activist who would either go under cover themselves as farm workers or would obtain the tapes from workers. Several states have passed AgGag laws, and Utah itself passed an AgGag law in 2012, which was later found to be unconstitutional.[1] Most people, outside of the industry, saw and still see AgGag laws as an attempt to keep work practices secret so that the industries bottom line is not injured from public uproar.

While we generally do not talk about religious organizations as businesses or an industry, they function as one in practice. As such it is not surprising that the LDS industry desires the same assistance from the state legislature that the agricultural industry sought: state backed secrecy. The LDS church received national flack last year for a video, taped on a cell phone, of a young 12-year old girl sharing her thoughts during a church meeting that she knew God had made her gay, which directly contradicts LDS beliefs. What caused the uproar was not so much that the girl shared a contradictory belief, but that the local leader cut her mic off and asked her to go sit down, not allowing her to finish. In addition, the LDS church spent considerable effort trying to track down who was secretly recording meetings inside their temples, which only certain members can participate in.

While there are pros to two-party consent laws, such as allowing all parties of the conversation to have the equal opportunity to censor their speech or actions, there are also pros to only have one-party consent laws, such as getting to catch someone in questionable behavior or to have proof of an altercation. Thankfully, many states that do enact two-party consent laws provide for exceptions that would allow for one party consent in the event of trying to obtain proof of criminal behavior. The proposed Utah two-party consent bill would have allowed for an exception for communication that was likely to lead to abuse, either physical, psychological, or otherwise. Thus, even if Utah can refine their two-party consent bill language so as to not infringe upon First Amendment free speech concerns for the press, it appears that the exceptions would still provide a way for LDS church leaders one-on-one meetings to be recorded as long as the person recording feels threatened by the interaction or has a concern that abuse may occur. It will be interesting to see if the LDS church continues to encourage the Utah legislature to pass two-party consent laws for the same reasons that states pass AgGag laws or whether the LDS church, and all other churches for that matter, will embrace that in this day and age of cell phones and easy internet access, their reliance upon privacy may no longer be sustainable.

[1] Here you can find which states currently have AgGag laws, which states AgGag laws have been declared unconstitutional, and which states are considering such legislation.