Hidden Cameras-Protocol for Use
by JERALD N. FRITZ
Jerald N. Fritz is Vice President, Legal and Strategic Affairs and General Counsel for Allbritton Communications Company in Washington, D.C.
Reporter: "Can I use them or can't I? Just tell me, yes or no. You need to bless this so we can shoot the story, so . . . is it ok or not?"
Lawyer: "Unfortunately-and I know the answer is very unsatisfying-but . . . it depends."
Reporter: "Coming from you, why does this not surprise me?"
Typical conversation? Lawyers have it with news reporters with depressing frequency. And with hidden-camera stories, the black and white answers requested are never apparent, so frustrations can run high. Not as high as potential legal bills, however, so the newsroom/lawyer debates will clearly continue.
There has been significant and increased interest recently in undercover reporting, eavesdropping, and the use of hidden cameras in newsgathering. This is a function of cheaper available technology combined with an increase in consumer-oriented investigatory pieces on local and network news and syndicated magazine shows. Although the technology may be pervasive, guidelines for legal and ethical considerations are still evolving, often contradictory, vague, or filled with complex legal traps.
To help negotiate the hidden-camera maze, this article offers a list of questions that lawyers and reporters may want to consider before pursuing undercover stories. At best, this analysis is a starting point for discussion to assess the appropriateness of surreptitious recording. At worst, the protocol can give a false sense of security that use of the devices has been "blessed" by counsel. Because each story is unique, this protocol is meant to trigger the right questions across a broad spectrum of circumstances. In virtually all cases, the right answers involve a balance of competing considerations. In all cases, however, fully vetting hidden-camera use with counsel is something that should be seriously considered by all media.
Protocol
- Does the state in which you intend to tape require both parties to consent to any taping?
- In a one-party-consent state, are reporters a party, or are they eavesdropping without consent?
- What is the role of video in the story? Is it essential? Does it bring real value?
- Is it necessary to use a hidden camera in this story? Why?
- Does the story involve insignificant, private matters (even if emotional), or are these matters of vital public concern, prevention of profound harm, or evidence of system failure?
- Is the rationale for the story simply to win a prize or beat the competition?
- Do your motives involve getting the story quickly and cheaply, rationalizing that others have done it, or that the story subjects are themselves unethical?
- Are hidden cameras to be used primarily to create drama? Can a visible camera be used with the same impact?
- Have you used all traditional means to investigate the story, including interviews and reviews of public records, databases, and documents?
- Is the story clearly focused, or is the camera aiding what is essentially a fishing expedition?
- Is the hidden-camera video to be provided to the station by a third party or shot by the station itself?
- What do you know about how any third-party video was obtained?
- Will the reporter use pretext or deception (lie) to gain access for reporting?
- o Will the harm prevented by such deception outweigh the harm caused by the deception?
- What happens if the reporter's cover is blown?
- Can a reporter lie to maintain a cover?
- What happens if the reporter witnesses a crime?
- Do you intend to use employee "whistleblowers" to carry a camera? Will they be employed by the station as well?
- Where will the camera be used-in a public place? quasi-public? private office? private home?
- Who else will be in the room?
- Will anyone else hear the conversation?
- Will subjects have an expectation of privacy?
- Will the reporter enter private property without consent of owners to tape?
- Will senior, experienced journalists closely monitor the investigation?
- Will raw tapes be screened daily?
- Will junior reporters be sent to the field without experienced staff close by?
- Will all field reporters be clearly advised on guidelines for equipment use and procedures in case of discovery?
- Will equipment be technically tested each time prior to use?
- Do you intend publicly to disclose private facts?
- Is the resulting story fair, factually accurate, and authentic in context?
- Will editing be allowed to alter contexts?
- Are individual subjects necessary to the story?
- Are story subjects minor figures? Can they be edited out? Will they engender sympathy?
- Will hidden-camera stories be aired prior to viewing and/or approval by the news director and/or legal counsel?
- Will all promotion pieces be reviewed prior to broadcast?
- What will a judge or jury think about what you did and how you did it?
- Have the news director and counsel approved use of the camera?