“Privacy is one of the biggest problems in this new electronic age.”1 In these technologically advanced times, Soldiers are discovering more innovative ways to obtain evidence in their favor for legal actions, such as administrative investigations and courts-martial.2 One of the methods Soldiers are using is to surreptitiously videotape or audio record other Soldiers without that other person’s consent.3
This article shows judge advocates4 how to analyze the legality of these recordings, using three different installations as examples—Joint Base Lewis-McChord, Washington; Fort Hood, Texas; and Fort Bragg, North Carolina. Judge advocates should consider state law; federal law; the potential negative effects of a client engaging in surreptitious recordings in the federal workplace or of other Soldiers; and the professional responsibility obligations you, as an attorney, should consider before dispensing legal advice.
One-Party Versus Two-Party Consent
First, you should consider state consent statutes. State law will often have more in-depth guidance regarding the recording of private conversations. The location in which the recording took place and the location of the parties to the conversation will determine what the law allows.5 If the parties are in different states, the state law for each should be considered. In reviewing applicable state law, you should initially determine how many parties must consent to a recording and then if there are any applicable privacy rights or torts.
Currently, each state requires either only one party of a conversation to consent to its recording, or all parties to consent for it to be a lawful recording.6 Thirty-eight states and the District of Columbia are colloquially referred to as “one-party consent” states.7 Texas and North Carolina are among these one-party consent states.8 One-party consent states require only one party to consent to the recording of the conversation before it is recorded and that one party can be the individual recording the conversation.9 Therefore, only one party to the conversation must consent if (1) your client is physically located in a one-party consent state, (2) all participants to the conversation are physically located in a one-party consent state, and (3) the conversation is being recorded in a one-party consent state.
The second type of consent state is colloquially called a “two-party consent” state.10 Currently, California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington are two-party consent states.11 These states require all parties to the conversation to consent to the recording of the conversation.12 The state of Washington limits the consent requirement to only recordings of a private conversation.13 If any of the participants are in a two-party consent state or the recording is taking place in a two-party consent state, then all parties to the conversation must consent before the conversation may be legally recorded, with one exception discussed later in this article.14
The consent required differs based on the state where the recorder, participants, and recording device are located. For example, under the federal standard and in many states, including Washington and North Carolina, the recorder can obtain consent from a party to the conversation by merely disclosing that the conversation is being recorded.15 It is best practice to capture the consent either in the recording or in writing in case the legality of the recording is later challenged.16
When your client is not a party to the conversation and has not received consent to record from any party to the conversation, your client may only record the conversation if the circumstances provide the participants with no reasonable expectation of privacy.17 As an example, there is generally no reasonable expectation of privacy when located in public places, and therefore, your client may usually secretly record others in public places.18 However, private owners of areas that are open to the public may impose additional restrictions through posted signs or other similar methods of notification.19
Other State Criminal and Civil Privacy Protections
Then, you should consider any other applicable state criminal statutes and civil claims of action before advising your client on the surreptitious recording of conversations. Due to privacy concerns, even some one-party consent states have additional statutes requiring all parties to consent to secret recordings in certain circumstances.20 These statutes generally apply to situations in which individuals have an enhanced expectation of privacy, such as during sexual encounters.21
State privacy laws can be criminal. For instance, in Washington, it is a Class C felony to record someone
without that person’s knowledge and consent while the person  is in a place where he or she would have a reasonable expectation of privacy; or [record t]he intimate areas of another person without that person’s knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place.22
Texas23 and North Carolina24 have similar criminal statutes.
Most states also recognize both civil invasion of privacy causes of action and criminal statutes. In common law, there are four types of civil invasion of privacy claims: “(1) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness; (2) intrusion upon the plaintiff’s seclusion or solitude or into his private affairs; (3) public disclosure of embarrassing private facts about the plaintiff; and (4) publicity which places the plaintiff in a false light in the public eye.”25 Not all states recognize these four common law tort claims. Washington, Texas, and North Carolina, specifically, allow some of the four privacy rights by either statute or case law, but not all.26 In addition, Texas similarly specifically authorizes an individual whose conversation was intercepted to sue the interceptor.27 There is a range of possible remedies exposing your client to a lot of monetary risk should your client engage in activity that violates another’s privacy, and therefore, warrants significant consideration before advising your client.28
After determining the applicable state law, you should consider whether there are applicable federal restrictions on secretly recording others. Despite common misconception, the limitations imposed by the Constitution and Bill of Rights are only applicable to government agents and not private parties.29 The U.S. Supreme Court does not recognize a constitutionally protected right to privacy in surreptitious recordings by private parties.30 Therefore, private parties are not bound by federal constitutional limitations when secretly recording others. However, Soldiers are bound by federal statutes, the Uniform Code of Military Justice (UCMJ), and local policies or regulations.
You should also consider federal law, which may contain additional restrictions on our actions. The Federal Wiretapping Act of 1968 only requires one party to a conversation to consent to its recording.31 But even if one party to the conversation consents to the recording, it is illegal to secretly record the conversation “for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the [U.S.] or of any State.”32 The individual being recorded may also file a civil action against the recorder.33
Whether the Federal Wiretapping Act applies in a case occurring on an installation depends on the jurisdiction for that installation.34 Four types of jurisdiction can exist on military installations: exclusive,35 concurrent,36 partial,37 or proprietorial interest.38
The Federal Wiretapping Act is the controlling law in areas of exclusive federal jurisdiction,39 and generally, only one party must consent even if the area with exclusive federal jurisdiction is located in a two-party consent state.40 In contrast, the state consent requirements will govern if any of the parties are located on, or the recording occurred on, an area that does not have exclusive federal jurisdiction.41 While both federal and state law apply in areas that are not exclusive federal jurisdiction, the more restrictive law will apply despite the other law being more expansive in what actions are allowed.42
Of the three installations used as examples in this practice notice, Joint Base Lewis-McChord (JBLM), Washington, is the only installation located in a two-party consent state.43 Joint Base Lewis-McChord has portions of land that are exclusive federal jurisdiction and other portions that are concurrent jurisdiction.44 Therefore, whether a client can legally secretly record a conversation while on JBLM will depend on what particular portion of the installation the recording and conversation are occurring.
It is important to consider not only audio and video recordings but also photographs as still pictures may be taken from such video recordings, and if the video recording occurs on a military installation the recording may inadvertently or unintentionally capture images of restricted areas or equipment.45 Federal law prohibits making a graphical representation of installations and equipment that the President has designated protected.46 If an individual must make such graphical representation, the individual must receive approval before publication or release.47 Aside from these statutes, you should also check with the local Public Affairs Office, which regularly engages in recording others as part of its official duties, to see if they are aware of any additional restrictions that may apply on the installation.
Installation and Unit Policies
Consider whether local installation and unit policies prohibit secret recordings. Commanders at all levels can legally institute policies that prohibit secret recordings in the workplace and on post if there is a valid military purpose.48
Violations of the UCMJ
When determining how to advise your client, the last area of federal law you should consider is the UCMJ. The following punitive UCMJ articles, or attempts to commit these offenses,49 are the most common as it relates to secret recordings: Articles 92, 120c, and 134. Other punitive articles may be applicable, depending on the facts and circumstances of the specific situation in which your client is seeking legal advice.50
A wide range of actions may violate Article 92, UCMJ, for failure to obey a lawful order or regulation, or for dereliction of duty.51 For example, if the client records conversations in a secure facility or unintentionally records classified information, your client may have committed a security violation.52 Furthermore, policies may exist prohibiting items, such as electronic devices, from certain locations or activities that do not constitute secure facilities.53 Failure to abide by these policies could also constitute an Article 92, UCMJ, violation. Finally, if the installation on which the recording took place or where your client is located has policies or regulations in place prohibiting such recordings or prohibiting any part of the specific circumstances surrounding the recording, your client may have violated this UCMJ provision.54
In addition to Article 92, UCMJ, and other articles addressing orders violations, another major UCMJ punitive article that may come into play is Article 120c. Article 120c, UCMJ, punishes indecent viewing and recording of “the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.”55 For instance, if your client is secretly recording in a locker room or during a sexual encounter, your client may have violated Article 120c, UCMJ.56
The final major UCMJ article that is most common in this area is Article 134.57 Article 134, UCMJ, applies to “circumstances [in which] the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.”58 Clause 3 of Article 134, UCMJ, allows the government to make any federal statute or any “assimilated State, Territory, Possession, or District law” under the Federal Assimilative Crimes Act a criminal offense for a service member.59 Therefore, even if a criminal offense is not explicitly included in the UCMJ, the military can utilize Article 134, UCMJ, to court-martial service members for that offense.
You should also consider the offenses of conspiracy under Article 81,60 UCMJ, and accessory after the fact under Article 78,61 UCMJ, for both your client and yourself. As counsel, you need to ensure your actions do not make you a co-conspirator or accessory after the fact through state or federal law, as well as through the professional responsibility limitations discussed below. For example, you cannot advise your client to secretly record others without their consent in a two-party consent state because then you could be a co-conspirator.
The applicability of any UCMJ punitive articles must be determined on a case-by-case basis, given the facts and circumstances related to your specific client and the specific acts discussed. Of course, any final decision on whether your client will be subject to punishment under the UCMJ is reserved to your client’s commander.62
Practical Impact of Recording Others
Notwithstanding federal and state law allowing your client to secretly record others, you should encourage your client to consider what realistic value will be gained from the recording, even though your client may initially believe the value of the recording to be extremely high. If you determine that your client can surreptitiously record others, the key here is whether your client should.
Recording others without their consent can damage relationships. In the military context, surreptitious recordings can have a negative effect within the unit and on completion of the mission.63 Soldiers may be concerned that other Soldiers are secretly recording them, which prevents candid and open discussions in the workplace. Soldiers may question other Soldiers’ loyalty and trustworthiness. Soldiers may also act as if others are engaging in underhandedness when they are not. These are important factors to consider, even for the client facing the most severe punishment—your client’s actions may lose good witnesses to testify on your client’s behalf or alienate the chain of command against your client.
Finally, the recording itself may be used against your client depending on the contents of the recording or the circumstances surrounding the recording.64 For example, if by recording, your client violated a punitive article of the UCMJ, action may be taken against your client for that misconduct. Alternatively, if your client did not violate any UCMJ article, but the statements contained within the secret recording support the adverse action against your client, the government may seek to introduce the recording into evidence to support its case. Ultimately, your client should weigh the possible negative impact against the possible positive value gained from secretly recording others.
Attorney Professional Responsibility Considerations
You should consider your respective state bar rules and service professional responsibility rules that affect the legal advice you provide your client. Each state has its own set of ethics rules and the Army has Rules of Professional Conduct outlined in Army Regulation 27-26, Rules of Professional Conduct for Lawyers.65 As a judge advocate, you are bound by the ethics rules for both the state where you are licensed to practice law and the Service professional responsibility rules.66
The rules for the Army, as well as the State Bars of Washington, Texas, and North Carolina, include a provision prohibiting the commission of illegal or dishonest/deceitful acts, or assisting a client in such misconduct.67 This specifically includes “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”68 Moreover, it is unethical to have a client do something you are prohibited from doing—for instance, “communicate with a person the lawyer knows is represented by counsel.”69
Based on these restrictions, attorneys in Washington, or other two-party consent states, must ensure all parties to a conversation give consent prior to recording in accordance with Washington Revised Code Annotated Section 9.73.030.70 In North Carolina, Rule 8.4, Misconduct, of the State Bar Rules of Professional Conduct prohibits engaging in dishonest behavior or “conduct that is prejudicial to the administration of justice.”71 The North Carolina State Bar has opined that it is improper for an attorney to listen to or watch an illegally obtained recording.72 Therefore, for those attorneys licensed in North Carolina, if your client brings in a recording that fails to comply with the laws previously discussed, you are ethically prohibited from listening to or viewing the recording.73
The Army and North Carolina also have rules regarding the type of counseling you may provide outside of purely legal advice. In the Army, attorneys “may discuss the legal and moral consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.”74 The North Carolina Rules of Professional Conduct authorize attorneys to “refer not only to law, but also to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation” when providing advice.75
You must ensure you are continuously checking for updated professional responsibility opines or amended rules for both the state in which you are licensed to practice law and the federal government before rendering advice in this area of the law.
The law is complex when it comes to whether a Soldier can secretly videotape or audio record his or her subordinates, peers, supervisors, or any other individual. This article provides an outline of what to consider when providing legal advice to clients on this issue. You should always review applicable state law. Specifically, you should consider consent laws, other privacy laws, and recognized civil causes of action for each state where a participant to the conversation is located, where your client is located, and where the recording occurs. You should also always review federal law, including installation or unit policies and the UCMJ.
Ultimately, your client must conduct their own risk-benefit analysis as to what action to take; but you, as a judge advocate, should counsel your client on whether their actions are legal and whether it is advisable to take such action given any potential negative effect of your client having secretly recorded others. You must consider applicable state and service professional responsibility rules before providing legal advice on this matter. Taking all of these factors into consideration, you can appropriately advise your client on how to proceed before the client secretly records others or after the client has already engaged in such acts. TAL
1. Mike Sager, Andy Grove: What I’ve Learned, Esquire (Jan. 29, 2007), http://www.esquire.com/entertainment/interviews/a1449/learned-andy-grove-0500/. Andy Grove was Intel’s Chairman at the time. Id.
2. “Privacy faces unprecedented threats from pairing video technology and information technology.” Max Guirguis, Electronic Visual Surveillance and the Reasonable Expectation of Privacy, 9 J. Tech. L. & Pol’y 143, 152 (2004). Emerging technology makes it easier than ever to secretly record others. “Katrina Patrick, a Houston lawyer who represents aggrieved employees, says that more than 50 percent of the people who come to her office bring digital evidence.” David Koeppel, More People are Using Smartphones to Secretly Record Office Conversations, Business Insider (July 28, 2011, 5:43 PM), http://www.businessinsider.com/smartphones-spying-devices-2011-7. Engaging in secret recordings has proved useful for some individuals. See Roberts v. Texaco, Inc., 979 F. Supp. 185, 190 (S.D.N.Y. 1997) (Texaco settled a class action lawsuit for racial discrimination for $115 million after the release of secret recordings showing “racial bias by senior officials of Texaco.”).
The evidence caught live on videotape is among the most reliable and is known to result in the highest conviction rate because, unlike people, the camera and the tape cannot lie. Videotaping makes the credibility of the witness or claims by the suspect or the officer a less critical issue by presenting the court with indisputable and objective evidence, free from personal predilection and subjective assessment.
Max Guirguis, Electronic Visual Surveillance and the Reasonable Expectation of Privacy, 9 J. Tech. L. & Pol’y 143, 144-145 (2004).
3. This assertion is based on the author’s previous professional experiences as Defense Counsel for Joint Base Lewis-McChord, Washington, from 16 July 2012 to 10 July 2014 [hereinafter Professional Experiences]. For a helpful starting point on this topic, see Reporter’s Recording Guide: A State-by-State Guide to Taping Phone Calls and In-Person Conversations, The Reporters Committee for Freedom of the Press (Summer 2012), https://www.rcfp.org/rcfp/orders/docs/RECORDING.pdf [hereinafter Reporter’s Recording Guide] (outlining statutes, criminal penalties, civil suits, and issues with disclosing recordings for each state from the perspective of journalists).
4. Judge advocates serving as legal assistance attorneys, defense counsel, or special victim counsel are most likely to deal with this issue. See McDade v. State, 154 So.3d 292 (Fla. 2014) (The Supreme Court of Florida found that a victim’s secret recording of her stepfather offender violated Florida’s law requiring all parties consent to the recording of a conversation, and therefore, the recording should have been suppressed at the stepfather’s criminal trial.).
5. See, e.g., Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914 (Cal. 2006) (applying California law in a case where the participants of a secretly recorded conversation were in California and Georgia). See also I.K. v. M.K., 753 N.Y.S.2d 828 (Sup. Ct. 2003) (applying New York law over Pennsylvania law in a civil action suit involving secretly recorded conversations because New York was the forum state even though the conversations were recorded in Pennsylvania).
6. See, e.g., Tex. Penal Code Ann. § 16.02(c)(4) (2011); Wash. Rev. Code Ann. § 9.73.030(1) (1986).
7. Professional Experiences, supra note 4. See Reporter’s Recording Guide, supra note 4.
8. Tex. Penal Code Ann. § 16.02(c)(4) (2011); N.C. Gen Stat. § 15A-287(a) (1995). See Becker v. Computer Sciences Corp., 541 F. Supp. 694 (D. Tex. 1982) (holding that it is “legal to tape one’s own telephone conversation with another person without telling the other person”); Ward v. State, 787 S.W.2d. 116 (Tex. App. 1990) (holding “that when the Appellant talked with the victim’s mother, he took the risk that she would repeat or record their conversation”).
9. See, e.g., Tex. Penal Code Ann. § 16.02(c)(4) (2011); N.C. Gen Stat. § 15A-287(a) (1995).
10. Professional Experiences, supra note 4. See Reporter’s Recording Guide, supra note 4.
11. See Reporter’s Recording Guide, supra note 4.
12. See, e.g., Wash. Rev. Code Ann. § 9.73.030 (1986). See Reporter’s Recording Guide, supra note 4.
13. Wash. Rev. Code Ann. § 9.73.030(1) (1986).
14. The exception is that if all participants are in a location and the recording itself takes place where there is exclusive federal jurisdiction, only one party must consent. See infra notes and accompanying text.
15. See Wash. Rev. Code Ann. § 9.73.030(3) (1986). See, e.g., State v. Price, 611 S.E.2d 891, 897 (N.C. App. 2005) (“Here, the trial court found that both parties to the conversation heard the recorded warning that the call was subject to monitoring and recording and that they consented, at least impliedly, by continuing with the conversation in the face of that warning.”); State v. Modica, 149 P.3d 446, 454 (Wash. App. 2006), aff’d, 186 P.3d 1062 (Wash. 2008) (“A party to a conversation is deemed to have consented to having his or her communication recorded when the person knows that the recording is taking place.”).
16. Professional Experiences, supra note 4.
17. See, e.g., Tex. Code Crim. Proc. Ann. art. 18.20, § 1(1)(2) (West 2015); N.C. Gen Stat. § 15A-286(17) (1997).
18. See Katz v. United States, 389 U.S. 347 (1967); see also Recording Police Officers and Public Officials, Digital Media Law Project, http://www.dmlp.org/legal-guide/recording-police-officers-and-public-officials (last visited June 28, 2019) (providing an overview of U.S. Court of Appeals cases regarding recording police and other public officials).
19. Mickey H. Osterreicher, Recording in Public Places and Your First Amendment Rights, Videomaker (Oct. 10, 2012), https://www.videomaker.com/article/15619-recording-in-public-places-and-your-first-amendment-rights.
20. See, e.g., Tex. Penal Code Ann. § 21.15 (2015).
22. Wash. Rev. Code Ann. § 9A.44.115(2) (2017).
23. See Tex. Penal Code Ann. § 21.15 (2015).
24. See N.C. Gen Stat. § 14-202(d) (2012); N.C. Gen Stat. § 14-202(e) (2012).
25. Renwick v. News and Observer Pub. Co., 310 N.C. 312, 322 (1984). See Restatement (Second) of Torts §§ ٦٥٢A-E (Am. Law Inst. 1977); Samuel D. Warren & Louis D. Brandeis, The Right To Privacy, 4 Harv. L. Rev. 193 (1890); William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960). Under the Restatement (Second) of Torts, intrusion upon seclusion only applies when the intrusion is intentional and when “the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts § 652B (Am. Law Inst. 1977). Public disclosure only applies when the fact disclosed “(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” Restatement (Second) of Torts § 652D (Am. Law Inst. 1977). See The Florida Star v. B.J.F., 491 U.S. 524 (1989) (discussing public disclosure of private facts). False light publicity only applies when “(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” Restatement (Second) of Torts § 652E (Am. Law Inst. 1977).
26. See Wash. Rev. Code § 42.56.050 (1987); Reid v. Pierce County, 136 Wash.2d 195 (1998); Cain v. Hearst Corp., 878 S.W.2d 577, 578 (Tex. 1994); Miller v. Brooks, 123 N.C.App. 20, 25 (1996); Hall v. Post, 372 S.E.2d 711 (N.C. 1988).
27. Tex. Civ. Prac. & Rem. Code § 123.002 (West 1985). See Banik v. Tamez, No. 7:16-CV-00462, 2017 WL 2505653, at *10 (S.D. Tex. June 9, 2017).
28. See Wash. Rev. Code § 9.73.060 (2011); Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1085 (5th Cir. 1984); Topheavy Studios, Inc. v. Doe, No. 03-05-00022-CV, 2005 WL 1940159 (Tex. App. Aug. 11, 2005); Tex. Civ. Prac. & Rem. Code § ١٢٣.٠٠٤ (West ٢٠٠١); N.C. Gen Stat. § 15A-296(a) (1995).
29. See Katz v. United States, 389 U.S. 347 (1967). “Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, 385 U.S. 293, 302 (1966). “A speaker bears the risk the person in whom he confides will betray his confidence.” Id. As stated in the dissenting opinion in Lopez v. United States, “[t]he risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.” Lopez v. United States, 373 U.S. 427, 465 (1963) (Brennan, J., dissenting). See also Lewis v. United States, 385 U.S. 206 (1966).
30. “The right of privacy guaranteed by the Fourteenth Amendment includes only those personal rights that can be deemed fundamental or implicit in the concept of ordered liberty and this privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation , and child rearing.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65 (1973). In United States v. Moore, the Court of Military Appeals held that an “accused had no constitutional privacy right prohibiting participant in conversations with him from allowing others to hear and record conversations regardless of accused’s lack of knowledge or consent.” United States v. Moore, 38 M.J. 490, 492 (C.M.A. 1994). The Court ruled that the secret videotaping and audio recording of a Colonel by his mistress did not violate the First Amendment because “no zone of privacy prevents a participant in a conversation from revealing what was said.” Id.
31. 18 U.S.C. § 2511 (2008). “The legislative history of [the Electronic Communications Privacy Act of 1986] reveals that Congress intended that the states be allowed to enact more restrictive laws designed to protect the right of privacy.” People v. Conklin, 12 Cal.3d 259, 271 (1974).
32. 18 U.S.C. § 2511(2)(d) (2008). See United States v. Cassiere, 4 F.3d 1006, 1021 (1st Cir. 1993) for an example application of this provision.
33. 18 U.S.C. § 2520 (2002).
34. To determine an installation’s jurisdiction, coordinate with the installation’s Office of the Staff Judge Advocate General. U.S. Dep’t of Army, Reg. 405-20, Federal Legislative Jurisdiction para. 9(c) (21 Feb. 1974) [hereinafter AR 405-20].
35. “Only Congress has the authority to legislate for areas held under exclusive legislative jurisdiction.” Id. para. 4(a).
36. “Both State and Federal laws are applicable in a concurrent legislative jurisdiction area.” Id. para. 4(b).
37. For areas with partial jurisdiction, the legislative scheme is as follows:
As to the authority to legislate, execute and enforce municipal laws granted without reservation by the State to the Federal Government, administration of the Federal area is the same as if it were under exclusive Federal legislative jurisdiction. Such powers may be exercised only by the Federal Government. As to the authority to legislate, execute and enforce municipal laws reserved by the State, administration of the area is the same as though the United States had no legislative jurisdiction whatever. As to those powers granted to the Federal Government with a reservation by the State to exercise the same powers concurrently, administration of the area is as though it were under concurrent legislative jurisdiction.
Id. para. 4(c).
38. If the federal government has a proprietorial interest, “[t]he United States exercises no legislative jurisdiction. The Federal Government has only the same rights in the land as does any other landowner.” Id. para. 4(d).
39. U.S. Const., art. VI, cl. 2 (Supremacy Clause).
40. See supra note 33 and accompanying text; Chicago, R.I. & P. Ry. Co. v. McGlinn, 114 U.S. 542 (1885); Pacific Coast Dairy v. Department of Agriculture of Cal., 318 U.S. 285 (1943).
41. AR 405-20, supra note 36, para. 4(b), (c), (d).
42. See id.
43. See supra note 12 and accompanying text.
44. E-mail from Major Gregory Costello, Chief, Federal Litigation, Joint Base Lewis-McChord, to author (Dec. 12, 2017, 09:19 EST) (on file with author).
45. 18 U.S. Code § ٧٩٣ may apply if the video contains information related to national defense. 18 U.S. Code § ٧٩٣ (١٩٩٦). See U.S. Dep’t of Army, Reg. 380-5, Department of the Army Information Security Program para. 10–12 (29 Sep. 2000) [hereinafter AR 380-5].
46. 18 U.S. Code § ٧٩٥ (١٩٩٤). See AR 380-5, supra note 46, para. 10–14.
47. 18 U.S. Code § ٧٩٧ (١٩٩٤). See AR 380-5, supra note 46, para. 10–16.
48. Before instituting such policies, commanders should seek legal advice from their unit legal advisor. For an overview from a supervisor’s perspective, see Captain Drew A. Swank, How to Stop Surreptitious Recording of Conversations in the Federal Workplace, Army Law., Feb. 2000. See, e.g., Policy Letter 7, Headquarters, 1st Battalion, 44th Air Defense Artillery Regiment, 69th Air Defense Artillery Brigade, subject: Command Policy Letter 7, Prohibiting the Nonconsensual Use of Recording Devices in the Work Environment (10 Oct. 2017); Policy Memorandum 12, Headquarters, U.S. Army Support Activity Fort Dix, subject: US Army Support Activity (USASA), Fort Dix Command Policy Memorandum #12–Prohibiting the Nonconsensual Use of Recording Devices in the Work Environment (3 Aug. 2017).
49. UCMJ art. 80(a) (2018).
50. Other possible punitive articles under the UCMJ that may be applicable to secret recordings include UCMJ art. 89 (2018), UCMJ art. 91 (2018), UCMJ art. 93 (2018), and UCMJ art. 107 (2018).
51. It is a violation of Article 92, UCMJ, if your client: “(1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties.” UCMJ art. 92 (2019).
52. Under Army Regulation 530-1, Operations Security, paragraph 2–22(f), every Soldier has a duty to “[p]revent unauthorized disclosure of sensitive and/or critical information.” U.S. Dep’t of Army, Reg. 530-1, Operations Security para. 2–22(f) (26 Sept. 2014). Security violations or any other criminal misconduct may affect your client’s ability to retain his or her security clearance. U.S. Dep’t of Army, Reg. 380-67, Personnel Security Program para. 8–3, I–7 (24 Jan. 2014).
53. See e.g., 82d Airborne Division, Airborne Standing Operating Procedures (ASOP) para. 1-7(a)(5) (1 Aug. 2014) (“Electronic items such as cellular phones, cameras, MP-3 players, and PDAs are NOT AUTHORIZED to be used for anything other than official military business or emergency use from final manifest through the conclusion of the ground tactical plan” during all airborne jumps.).
54. Willful disobedience of a superior commissioned officer’s order may also be a violation of Article 90, UCMJ. UCMJ art. 90 (2018). To be a violation under Article 90, UCMJ, “[t]he order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service.” Id. As long as there is a “valid military purpose,” the command may restrict the Soldier’s ability to secretly record others, even if state law and other applicable Federal law authorize such recordings. Id. The same analysis for Article 90, UCMJ, applies to Article 91, UCMJ, which would apply if the person who made the order is a warrant officer, noncommissioned officer, or petty officer. UCMJ art. 91 (2018).
55. UCMJ art. 120c (2018). This statute differs from the Marines United “revenge porn” scandal in that revenge porn deals with photographs that were taken with consent, but distributed without consent. See Jared Keller, The Rise And Fall (And Rise) Of ‘Marines United’, Task & Purpose (Mar. 16, 2017, 11:20 AM), https://taskandpurpose.com/rise-fall-rise-marines-united/; UCMJ art. 117a (2018).
56. See UCMJ art. 120c (2018).
57. UCMJ art. 134 (2018). If your client is a commissioned officer, the government could also charge your client with a violation of Article 133, UCMJ, for “conduct unbecoming an officer and gentleman.” UCMJ art. 133 (2018). For this article to be applicable, the conduct would likely be similar to that punishable under other articles, such as Article 120c, UCMJ. UCMJ art. 120c (2018).
58. UCMJ art. 134 (2018). This is referred to as the terminal element. See United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). In addition to the general article in Article 134, UCMJ, there are other criminal offenses within Article 134, UCMJ, that may be applicable to surreptitious recordings by your client. These include obstructing justice and wrongful interference with an adverse administrative proceeding. UCMJ art. 134 (2016); see UCMJ art. 131b and 131g (2018) for offenses on or after 1 January 2019.
59. UCMJ art. 134, cl. 3 (2018).
60. UCMJ art. 81 (2018).
61. UCMJ art. 78 (2018).
62. Manual for Courts-Martial, United States, R.C.M. 306 (2019).
63. Other countries, such as Israel, have similar issues with soldiers recording their leaders. See Zehavit Zaslansky, Fearing Dismissal: Military Professionals are Recording Conversations with Their Commanders, Jerusalem Online (Apr. 22, 2014, 8:26 PM), https://www.jerusalemonline.com/fearing-dismissal-military-professionals-are-recording-conversations-with-their-commander-4917/ (“The behavior we have learned of—soldiers recording their commanders without the latter’s knowledge in order to then make use of their statements in legal proceedings—is wrong and indicates a measure of dishonesty.”).
64. See Housley v. Spirit Aerosystems, Inc., 628 Fed.Appx. 571, 575 (2015) (“The recordings in this case turned out to be a double-edged sword. [The employee] wanted the jury to know about them[, but the employer] turned the tables on her by promoting their use for a different, albeit limited, purpose. . . . In the end [the employee] was obliged to take the bitter with the sweet.”).
65. U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers (1 May 1992) [hereinafter AR 27-26].
66. Id. para. 7.
67. See id. r. 1.2(d), 4.1, 4.4, 8.4; Wash. R. Prof. Cond. r. 1.2(d), 4.1, 4.4(a), 8.4 (2015); Tex. Disciplinary R. Prof. Conduct r. 1.02(c), 4.01, 4.04(a), 8.04(a)(3) (1995); 27 N.C.A.C. Chapter 2, Rules 1.02(d) (2003), 4.1 (2003), 4.4(a) (2015), 8.4 (2017). See also ABA Rules of Professional Conduct; ABA Code of Prof’l Responsibility DR 1-102(A)(3)-(4) (Am. Bar Ass’n 1983); Model Rules of Prof’l Conduct (Am. Bar Ass’n 2016).
68. AR 27-26, supra note 66, r. 8.4(b); Wash. R. Prof. Cond. r. 8.4(b) (2015); Tex. Disciplinary R. Prof. Conduct r. 8.4(b) (1995); 27 N.C.A.C. Chapter 2, Rule 8.4(b) (2017).
69. See AR 27-26, supra note 66, r. 1.2(d), 4.2; Wash. R. Prof. Cond. r. 1.2(d), 4.2 (2015); Tex. Disciplinary R. Prof. Conduct r. 1.02(c), 4.02 (1995); 27 N.C.A.C. Chapter 2, Rules 1.02(d), 4.2 (2003).
70. Wash. Rev. Code Ann. § 9.73.030 (1986).
71. 27 N.C.A.C. Chapter 2, Rule 8.4(b) (2017).
72. North Carolina State Bar, Op. RPC 192 (1995), https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/rpc-192/.
74. AR 27-26, supra note 66, r. 1.2(d).
75. 27 N.C.A.C. Chapter 2, Rule 2.1 (2003).