The two party consent law and you: Recording professors

Graphic by Casey Linenberg '19 

Graphic by Casey Linenberg '19 

BY MADELINE SKRAK '18 

The occasional student might covertly record a class lecture, but they may not realize that activity is illegal in the Commonwealth of Massachusetts, which has one of the most restrictive recording laws in the United States.

While both a majority of states and the federal wiretap statute require only one-party consent to record a conversation, the Massachusetts wiretapping law, or the two-party consent law demands the consent of all parties involved. Each participant in a conversation must be directly notified, unless it is blatantly obvious that a recording device is present.

Sabrina Fox '18 said that she'd never heard of the law, and suggested that all professors should inform their students about it at the start of classes. "I had no idea that there were laws forbidding that, and I especially didn't know they existed in Massachusetts," Fox said. "I grew up here and know many people who record that probably don't know there's a law about it either."

Last semester, a controversial event at Mount Holyoke brought about this discussion, when a student anonymously recorded her math professor expressing his political views about the 2016 presidential election. The video spread rapidly around the school and South Hadley area, raising questions about the ethics of faculty sharing political views in class, the violation of the wiretapping law and First Amendment rights. 

The College Fix and Mount Holyoke Radix wrote articles about the event, and social media exploded with student opinions as to what should be done. On behalf of the professor, some felt the video was in poor taste and that the clip didn't encompass the professor's entire monologue. Furthermore, the recording was against the law, since he had no idea he was being recorded. 

Massachusetts law states that "unrestricted use of modern electronic recording devices poses grave dangers to the privacy of all citizens of the commonwealth."

Initially, the 1968 law aimed to inhibit the growth of organized crime rates, which were "infiltrating legitimate business activities and depriving the honest businessman of the right to make a living," according to section 99. Such crimes were staged behind walls of secrecy.

Today, willful attempts to record a conversation without full disclosure can result in serious repercussions, including fines up to $10,000 and possible incarceration.

Most Mount Holyoke professors' syllabi this semester included a section regarding this issue, explaining particular class policies and their preferences regarding recording. The challenge for professors lies in encouraging dialogue about consent and working with students to best suit their needs while also maintaining privacy.

Nora Gortcheva, a media historian and visiting lecturer in German Studies, has included a mention of the two-party consent law in her class syllabus for the first time this semester, but doesn't find the protocol new. She explained that she has become more acutely aware of the ways in which media is entering the classroom, and has explicitly included policies about cell phones, laptops and other communication devices in her classes.

Gortcheva assumes that both the student and instructor should ask for permission if they record audio or visual material in a classroom setting, unless the student has formal accommodations to request specific media use in the classroom.

"By explicitly including a policy on my syllabus and discussing the issue during the first class, I alert students to the importance of consent," said Gortcheva.

"Personally, I would like to have a say when my picture or voice is recorded, posted and circulated. We obviously live in a very mediated world and often this option is not available to us," she added.

Whether recording a lecture, interviewing a friend, meeting with a faculty member or an informal phone call, all situations demand consent. Without full disclosure, recording infringes upon the other party's privacy and is illegal if intentional.

For Eleanor Townsley, the director of Nexus and a professor of sociology, the theme of the media's role in both the public and private sphere is especially relevant to her classes this semester, including the Sociology of Organizations and the Sociology of Media. 

Townsley prefers for her classes not to be recorded. 

"Classrooms can be important places where people can try out ideas and take risks when they speak. Everyone is learning. In sociology, as in other fields, we discuss a wide range of topics that can sometimes be challenging, difficult or emotional. People need to feel safe to speak – even when they know others do not agree with them," Townsley said.

"I also think that recordings are easily decontextualized and that is a risk for everyone being recorded,"Townsley added.

Jon Western, vice president for academic affairs and dean of faculty, explained that, at present, any professor can restrict the use of digital and video recordings in the classroom.

"If a faculty member gives students notice of a prohibition, any violation would be considered a violation of academic regulations and the Mount Holyoke Honor Code and would result in disciplinary action," he said. 

Western also noted that Mount Holyoke is in the process of reviewing the law and the school's policy to ensure that classroom goals are met in labs and creative spaces.

Though it's understandable that students, especially international students and those from out of state, might be unfamiliar with the details of Massachusetts state law, this lack of awareness can result in serious consequences for those who unknowingly – or knowingly – violate it by recording their classes.

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