1. Ryan Elder
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    Ryan Elder Contributing Member

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    Does anyone know how these conversation recording laws work?

    Discussion in 'Research' started by Ryan Elder, Jan 14, 2016.

    For my story, I want the MC to be able to record a phone conversation with the intention of using it as evidence.

    Now it will probably be best if I set it in a country (probably the U.S. or Canada), that is a second party nation. I read that a lot of states are second party, where you can record a conversation if you are a part of it.

    However, in my case the MC is using someone else's phone ID and impersonating that person to speak to the villain. The villain thinks he is calling a contact of his, but it's actually the MC, impersonating the contact.

    Would the MC be able to hit the record button on the cellphone and it can be used as evidence if he is a part of the conversation, but the villain thinks he is talking to a different person? Or does the second party law mean you can record any conversation no matter who you trick the person into thinking you are, since you are still a part of it?

    Also the MC would have to make his caller ID's appear to be the contact's, so the villain can be fooled.

    Is he has to do that, to trick a person into giving up evidence, will the evidence be admissible?

    Also, if the villain has to hang up, but then call back his contact later, let's say he hits redial in his phone. Since the MC has appeared to make his phone number be the contact's one, the villain's phone would still dial the real contact, and not call the MC back, right?
     
    Last edited: Jan 14, 2016
  2. psychotick
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    psychotick Contributing Member Contributor

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    Hi,

    First up the laws are going to vary from country to country. The second party rule is basically a defence that says you can't be charged if you record a conversation you are a part of. It doesn't say that whatever you record can't be used in evidence - unless your MC is a cop etc, in which case the evidence has been illegally obtained. So if Joe Blogs records a conversation he is not party to, he can be tried, but the recordings he made can then be used as evidence against someone else.

    Next, is there a record button on a cell? I don't have one on mine.

    The last part of your question I don't get. How does the MC speak with the bad guy on another person's phone which isn't in his possession?

    Cheers, Greg.
     
  3. Shadowfax
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    Shadowfax Contributing Member Contributor

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    I'm assuming that MC has the software chops to be able to make a call on his own phone (let's say number 0777 123 4567) but which displays as the villain's mate's phone (number 0789 987 6543) or maybe just "call from Scarface". But when the villain calls "Scarface" back with redial, surely his own phone won't be fooled into thinking that the number really is 0789...? So the MC also needs to program his OWN phone to recognize that Villain is calling, and route the call through - invisibly - to Scarface, or to inform the villain that "your call could not be taken at this time".

    That is, I'd have thought, some serious hacking!

    On the other hand, it's quite a mainstay of cop dramas that a recording is made of an incriminating conversation and that then seals the case, so whether it's legal or not, it's a procedure that has wide acceptance - at least on TV!
     
  4. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. I thought I would make the law as accurate as I could though since I have followed the letter of the law in other parts of my story. So if I skimp on it in this section of the story, it might come off as inconsistent. I can make things up if need be, but first I would need to know what the real law is, in order to tweak it.

    The MC is a cop, but he investigating a case, and acting undercover over the phone, in a case where he is not suppose to be investigating. The case is considered 'closed', as they often say in fiction, so he is acting on his own, which means he has no warrant to record the conversation and has to do it on his own, so I was wondering if it's legal since the cop is not even on the case and doing it on his own.

    As far as their being a record button, there is on my cell phone, which is where I got the idea, of not needing a wire tap. Or the MC can just record with another device if need be.

    And yes he would have to use his own cellphone, and make it appear that the contact is calling the villain, caller ID wise. He cannot steal the contact's phone, otherwise the contact will know that something is up, and he will try to warn the villain.
     
  5. psychotick
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    psychotick Contributing Member Contributor

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    Hi,

    Looked up the wiki for mobile phone cloning which is I think what you're after. It's got too many acronyms for me, but here's the link:

    https://en.wikipedia.org/wiki/Phone_cloning

    As for evidential value of the recorded conversation, yes it's useless. The information was gained by criminal means and is tainted since he's a cop trying to use it to prosecute. It doesn't matter whether he's "on" or off the case though. That's just a reason for his bosses to get upset.

    Cheers, Greg.
     
  6. MockingJD
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    MockingJD Member

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    Cops are allowed to lie to obtain evidence so that part doesn't bother me. As a prosecutor, the part where he's working a closed case without any authority to do so seems to be the bigger problem. At least from a realism perspective.
     
  7. Rob40
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    Rob40 Active Member

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    I'm new but know something to add here.
    Where I work, a schedule change requires notification by direct means, or, a phone call and not by leaving a message. All calls must be recorded by our union contract. there have been instances of management not using company phones and their own personal cell or other unrecorded means and been called out on it. The general distrust means that many employees here have gone as far as to use google voice to record the conversations just in case something illegal (per govt. regs for the job we do) or contradictory occurs. Now, the fact that it's legal to do is based on STATE law. The STATE the company is in allows recording phone calls, where other states do not. so not only check the country, but if in the US, check the state laws about context for recording calls.
     
  8. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay well I did
    Okay thanks. Well is their a way a cop can do this on his own? It's kind of like when Hank Schrader in Breaking Bad, wanted to bust Walter White, on his own without telling anyone and actually used recording surveillance to do it. Is there a way I can write it like that, where it will work in a court of law?
     

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