Arizona bill would make it a felony to secretly record phone calls

PHOENIX — A proposal to make it a felony to secretly record phone conversations is causing alarm among a group that sometimes uses the tactic, which is legal in Arizona: journalists.

And the proposal might be expanded to cover hidden microphones in person-to-person conversations, its sponsor said.

If that had been in effect last year, it would have made a felony to do what former gubernatorial hopeful and current U.S. Senate candidate Kari Lake did when she secretly recorded Jeff DeWit when he was the chairman of the Arizona Republican Party.

House Bill 2038 as approved by the House Committee on Transportation and Technology would make it a Class 5 felony, punishable by 18 months in state prison, to record any wire or electronic communication without first notifying everyone else who is a party.

That is far different from current Arizona law, which says that only one person involved needs to know the conversation is being taped.

The sponsor, Rep. David Cook, agreed to modify the bill to create an exemption for peace officers — or anyone acting at the direction of a peace officer — during the course of an investigation.

But the Globe Republican was not sympathetic to extending that to reporters, who may be doing their own inquiries into activities of politicians and others.

“You’re not law enforcement,’’ he said. “We can’t have all kinds of people going out and doing their own investigation. In fact, you want to be straight up with people.’’

Chris Kline, chief executive officer of the Arizona Media Association, said telling people who are being interviewed that they are being recorded is considered a “best practice.’’

“But making it illegal to broadcast or record someone simply because the other person hasn’t consented seems to take it to a completely different level,’’ Kline said. He said there are times when it’s appropriate to record someone even without notifying them.

Cook acknowledged that providing such notification could alter the conversation.

“Police cars are marked for a reason because it changes behavior,’’ he said. “If people know they are being recorded, I promise you it will change behavior.’’

In those kinds of cases, he said, the issue is deterring bad behavior.

But Kline said the same notification that a conversation is being taped also could chill the willingness of people to talk openly, even if it is clear they are speaking with a reporter.

“There are always moments where things come up,’’ he said. “We are opposed to anything that’s going to inhibit the ability of our communities to get news distributed and out there with limitations based upon what can and can’t be shared.’’

Would cover Zoom meetings

The issue of recording phone calls may be just a piece of the problem — and just the beginning of where the legislation is headed.

TV stations sometimes do “hidden camera’’ stories, approaching people to see what they would say if they thought they were talking to just an ordinary person and not a reporter.

For the moment, HB 2308 deals strictly with “wire or electronic communications.’’ But Cook, asked if the measure extends to undercover videos, said, “We can determine that.’’

He said it definitely does cover Zoom and other online meetings. Cook said all participants would need to be notified if any person were recording the event.

The issue is trickier in interstate conversations and online meetings.

Back to homepage

Subscriber Login

Keep reading with a digital access subscription.

Subscribe now

Federal law requires only that at least one party taking part in a call must be notified of the recording. That is designed to make it illegal to “bug’’ someone else’s phone absent a court order.

But Cook said he believes if Arizona law requires notification, then anyone recording the conversation has to tell everyone else, regardless of the law in the state another party to the conversation is in. If lawmakers here adopt his measure, Arizona would become the 12th state in the country to require consent of all involved.

Lake, DeWit recording

The interstate issue, however, would not have arisen in the March 2023 conversation between Lake and DeWit.

In the recording publicly released last month, DeWit tried to persuade Lake to sit out the 2024 election and appeared to offer her a high-paying job to do so — remarks he likely would not have made had he known the conversation was being recorded.

DeWit later resigned from his GOP post, saying that Lake had given him an ultimatum: “resign today or face the release of new, more damaging recording.’’

While DeWit declined to speak to reporters, he said in his resignation letter that secretly recording a political strategy discussion crosses ethical lines.

“I question how effective a United States senator can be when they cannot be trusted to engage in private and confidential conversations,’’ he wrote.

Lake did not respond to his claims.

Cook said that, as far as he’s concerned, taping someone in person without their knowledge is as unacceptable as doing it by phone.

“If you’re going to record a conversation, it should require that you get an order from a judge,’’ he said.

Lake did not respond to a request for comment about the legislation.

AI is another issue

Cook said the measure in its current form is a “starting point.’’ He won’t bring the measure to the House floor until additional issues are addressed, he said.

For example, he noted, all committee meetings at the Capitol are not only livestreamed but also videotaped and can be viewed later. He said it might be necessary to say there should be a posting in each room telling witnesses, who may not be aware of the practice, that what they say is being recorded.

Cook said the genesis of his measure was to make it harder for individuals to use artificial intelligence to mimic someone else’s voice.

“They only need a few data set points of a voice to reproduce that voice,’’ he said, adding that he still wants to deal with that issue.

“I need to read a little bit more about the AI stuff and how we can protect people from that as well,’’ he said.

Cook said that led to his proposal to make such electronic recordings illegal in the first place. He agreed to amend it to provide the law enforcement exception at the behest of Pinal County Attorney Kent Volkmer.

“We’re not going to take away tools from those people that need them critically for whatever reason,’’ Cook said.