Two-Party Consent Laws Should Be Ruled Unconstitutional | Hacker News Reader

Two-Party Consent Laws Should Be Ruled Unconstitutional

3 pointsEmmyPenumbra4 comments

To pass constitutional muster, any law must be supported (at a minimum) by a legitimate governmental interest. I call two-party consent laws "right-to-lie" laws, because, instead of protecting privacy, preserving someone's right to lie about a conversation is the ONLY interest these laws are designed to protect.

Here’s an example. My friend invites me over to his house, where he tells me a secret—that he has been cheating on his wife for the past two years. Now suppose two alternative scenarios involving this discussion: (1) After listening to my friend, I go and find his wife and tell her that her husband just told me he has been cheating on her for the past two years; or (2) I secretly recorded the conversation with my friend and later play back the recording for his wife. If the state was interested in protecting my friend’s privacy, both scenarios (1) and (2) would be illegal. However, under a two-party consent law, only scenario (2) is deemed illegal. If scenario (1) is not illegal, it is obvious the state is NOT worried about protecting my friend’s privacy. But what, then, is being protected if only scenario (2) is deemed illegal? Without a recording, my friend can deny the details of the conversation (for example, he could claim he was talking about cheating on someone else he dated long before he got married) or deny that the conversation took place at all. In short, making only scenario (2) illegal has NOTHING to do with privacy but protects only my friend’s RIGHT TO LIE—which is NOT a legitimate governmental interest.

You should try to steel man this.

For example, were these laws created in response to recording devices being invented or becoming widely used? If so, could governments have a legitimate interest in establishing and enforcing generally expected standards of behaviour in order to maintain levels of trust in society?

This would not apply to people gossiping because gossiping predates governments.

Governments have long made repeating some unrecorded conversations illegal. Those conversations are called “privileged communications”. For example, a doctor or a lawyer can be charged with a crime for an unauthorized disclosure of a privileged communication, even if the communication was not recorded.

The problem with two-party consent laws is that they make illegal ONLY the recording of conversations that the participants are otherwise free to disclose to others. In those situations, the government CANNOT claim it is seeking to protect anyone’s privacy, but only people’s “right to lie” about their conversations. That is NOT a legitimate governmental interest.

Scenario 2:

You confide in your friend that you find one of your boss's habits so disgusting you don't even want to be in the same room with him. Your "friend" secretly records the conversation and then gives it to your boss.

Scenario 3:

In confession, you tell your priest that you've had recurring impure thoughts about your best friend's wife. The priest records the conversation and gives it to your friend "in the interests of bringing everything into the open".

Scenario 3 is an example of a privileged conversation. Simply repeating the conversation to others is itself a violation of the applicable rule. Recording the conversation and playing it back to others is simply the other side of the same coin.

Two-party consent laws are constitutional ONLY if the underlying conversation is privileged and cannot be repeated to others, even in the absence of a recording.

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