A Question of Ethics

Quick, Did You Get That on Your Smart Phone?

It is cliché to say that technology is constantly changing our lives, yet it is also an undeniable truth. Questions we once considered hypothetically are now commonplace choices. One such question involves the ethics of casually recording events and meetings in our lives. A decade ago, the question of everyday folks spontaneously recording events was largely academic, since making a recording was a complicated act that took planning. For example, although one could not assume privacy on a city street, most of us thought in terms of some paparazzi photographer snapping a celeb’s photo and then running away: annoying and legal, but fairly unusual.

Around 2008, video cameras were ubiquitously embedded into smart phones, and the loss of privacy became real. Now, we are blasé about bystander videos of law-enforcement street incidents.1 Conversely, we are accustomed to bystander videos showing heroic acts, which underscore the goodness in humanity.2

We are now forced to reconsider locations we once presumed were semiprivate. Many of us thought being in an airliner or a taxicab were places where, out of common courtesy, we would not be recorded. However, we have seen recordings of passengers being dragged off overbooked flights3 and soccer-team members deriding their coaching staff in the back of an Uber vehicle.4 These places are now fair game.

Finally, we are forced to reconsider areas we objectively trusted as private and safe to speak candidly. In May 2012, Scott Prouty, a bartender, video recorded Mitt Romney at a private fundraising dinner where Romney proclaimed that 47 percent of Americans were dependent on the government and believed themselves victims.5 In her August 12, 2018, Meet the Press interview, Omarosa Manigault Newman revealed that she recorded Presidential Chief of Staff John Kelly firing her in the White House Situation Room.6 Could there be a more private room in America?

Some of these recordings were discomforting, some were uplifting, all could be accomplished with no more forethought than causally pressing the red “record” dot on one’s smart phone. This added ease intensifies questions of motivation. Canon 1.3 of the NACM Model Code of Conduct calls court professionals to continually make courts more accessible. What could be more “accessible” than having all meetings recorded and available to the public? Many local television news stations now actively solicit viewers to submit their bystander recordings, praising such contributors as “citizen journalists.” Recording meetings (regardless of whether others are aware) is looked at by some as being akin to a public service. Finally, isn’t recording a meeting (even privately) easier than feverishly writing down what is said and then hoping that you don’t miss something? If, by chance, you happen to record some inappropriate comment, well, we’ll worry about that later.

Angie Morgan, with the organizational development company Lead Star, asked the ethical question: Under what circumstances would you privately record a conversation?7 Ms. Morgan unambiguously answers her own question: There is no reasonable circumstance under which one should privately record a conversation. If the circumstances are so serious that one is contemplating privately recording a meeting, she says to find another way. If it involves one’s supervisor and there seems no other alternative, she suggests quitting one’s job.

I admire Ms. Morgan’s convictions, although I fear we might be minimizing the consequences of such courageous acts. Folks I have worked with in courts are dedicated professionals, but they are also working to help feed and house their families. Quitting one’s job and embarking on a search for a new position with comparable pay is not a casual decision for most of us. Can we reasonably take such courageous acts and trust that everything will work out?


The Respondents

To weigh in on the question of recording conversations and incidents are Angela S. VanSchoick, court administrator of the Municipal Court in Breckenridge, Colorado; Crystal McCreery, court administrator of the Municipal Court in Goodyear, Arizona; and Kayla D. Hanson, deputy clerk of courts-criminal, Sioux Falls, South Dakota.


Under what circumstances would you condone a family member recording an incident that occurs in your nonwork life?

Angie VanSchoick would record an incident if it looked like it would put her family in danger, or if something remarkable was occurring. “Additionally, if there was something cute or unique occurring with my daughter. However, with that being said, I’d only condone the sharing if it was a trusted family member or very close friend and I knew why they were sharing and there wasn’t an overabundance of information available about her.”

Kayla Hanson said she would only condone a family member recording a private family gathering. “If we are celebrating Christmas, birthday, or an outing where we are all together—those situations are open and fair game for recording.”

Crystal McCreery would record or allow a family member to record an incident if it was a matter under legal investigation.

Under what circumstances would you record an incident that occurs in your nonwork life?

Kayla has recorded events in public during family outings, but she tried not to record people who are unaware of being recorded. “I know I have been recorded without being asked and it bothers me, but I remind myself not to do anything out of character in case it was to make it online. I know growing up, my mother recorded phone conversations with people without their knowledge for legal purposes.” Kayla admitted that if she did not work for a court and she was involved in a pending case and needed to record a conversation for legal reasons, she would do it.

Similar in her response to the previous question, Angie said she would record an incident if something was occurring that required documentation, such as an accident or a family incident. “My husband was assaulted riding his mountain bike. He texted me that he could walk himself and his bike out but described what the other biker was wearing and the color of his bike. I was at the trailhead, took photos of the six cars in the lot and recorded people matching his description as they exited the trail and put their bikes in their vehicles. He was able to press charges with the information I collected.”

Under what circumstances would you record an incident in your role as a court professional?

Crystal thought she would record an incident if it related to the safety of her employment or the employment of others, to the integrity of the court, or to a potential investigation. She would also record if there was fear of retaliation regarding what was discussed or if the discussion could be spun negatively and cause drastic repercussions.

Angie noted that there are places in her courthouse without cameras and where serious things could occur. “I’d record an incident during a court session, especially since it may take a bit before we had police presence available and our security guards might be too overwhelmed by the situation.”

Kayla said that she honestly could not think of any circumstance where she would allow herself to record when acting as a court professional. “We have a code of conduct to follow. If there was something to arise that would question whether I needed to record the situation or not, that is when I need to take a step back and reassess the situation.” She said she would seek the guidance and advice from a colleague or a superior.

Do you see this as an ethics discussion, or simply a question of common courtesy?

Crystal and Angie thought recording an incident was a question of common courtesy. Crystal said she does not believe recording a matter goes against ethical standards, and the situation at hand would determine whether disclosing the recording was necessary.

Angie noted that in this day and age, we must all assume that whatever we say, do, post, or comment on will be seen by those who were not intended recipients. “While I never plan to be someone in the spotlight, per se, I try to live my life in a way that would not bring undue consequences to my job, my profession, my colleagues, or my family.”

Kayla commented, “I would hope that a relative would have the common courtesy and common sense to only record when permission is given. This one could be either an ethics question or common courtesy. Each person has their own ethics they live by or follow. I do think with social media and everything being so accessible, this topic is starting to become an ethics topic. I have had this discussion with co-workers and my family and everyone has different viewpoints!”

Technology has certainly made this a salient issue for all of us. There is little doubt that we will all be faced with this possibility now and in the future. Thanks again to Angie VanSchoick, Crystal McCreery, and Kayla Hanson for their thoughts on this timely topic.

Be sure to visit the NACM ethics web page at http://nacmnet.org/ethics. You can view the new revised NACM Code of Conduct, previous ethics columns, and educational ethics modules that your court or state association could use to present ethics training.

Want to Be a Respondent?

Would you like to be a respondent on an upcoming ethics column? Do you have an ethical issue you think would make for an interesting column? Do you know someone who would like to be a respondent? Email the association at ethics@nacmnet.org. I will reach out with an invitation.  


Peter C. Kiefer has spent over four decades working for the courts in Oregon, California, and Arizona, as well as on rule-of-law projects in Liberia, Moldova, and Beirut. Contact him at kieferpeter@hotmail.com.  

  1. Four video examples: Kajieme Powell, St. Louis, Missouri, August 19, 2014; Antonio Zambrano-Montes, Pasco, Washington, February 10, 2015; Walter Scott, Charleston, North Carolina, April 4, 2015; and Jaeah Lee and A.J. Vicens, “Here Are 13 Killings by Police Captured on Video in the Past Year,” Mother Jones, May 20, 2015.
  2. Two examples: Deputy Connor Martin saving Martin Pierce from a burning pickup truck near Dallas, Texas. The incident was shown both on Officer Martin’s body-cam and a bystander video. NBC News, December 4, 2018. Obadiah Jenkins saving Daniel Hartung from life-threatening rapids near He, Alaska on August 17, 2017. Good Morning America, ABC News
  3. On August 10, 2017, a passenger on an overbooked United Airlines flight recorded Dr. David Dao being dragged screaming off the plane. Dr. Dao and three other passengers were randomly selected to exit the plane to make room for a flight crew being ferried to another city. Nicholas Hautman, “United Airlines Security Forcibly Remove Passenger from Overbooked Flight in Appalling Video,” US Magazine, April 10, 2017.
  4. On October 29, 2018, an Uber driver used his vehicle’s rearview mirror camera to record players from the Ottawa Senators hockey team complain about their coaching staff. “Candid Camera: Sens Players Caught on Video Joking About Team, Badmouthing Coach,” Ottawa Sun, November 6, 2018.
  5. Catalina Camia, “Man Who Taped Romney’s 47% Comments Speaks Out,” USA Today, March 13, 2013.
  6. Ted Johnson, “‘Meet the Press’ Plays Tape of John Kelly Firing Omarosa Manigault Newman,” Variety, August 12, 2018.
  7. Angie Morgan, “To Record . . . or Not Record,” Leadership Moments, https://leadstar.us/.