Thirty-seven states, plus the District of Columbia, allow surreptitious recording of interviews. These are called one-party consent states, since only one party to the conversation—the reporter, for example—need give consent. New York is one of these states. So you could, if you so choose, record your own conversations without telling anyone, although we believe journalists should answer to a higher calling and reveal this in most circumstances. This holds whether you are recording someone in person as well as over the telephone, or via Skype or FaceTime or some other videoconferencing platform. It’s a good policy to have your interview subject spell her name and provide her job title so there are no misunderstandings.

Twelve states have criminal statutes that ban recording without the consent of all parties to the conversation. These are called two-party consent states: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington (Vermont has no law). These are criminal statutes, the violation of which can bring a jail sentence, and these laws have been interpreted in various ways by the courts of each state.

So what happens if you the reporter are in New York—a one-party state—and over the telephone you secretly record someone in a two-party state? Good question. It would depend on which jurisdiction holds sway, and that is a question of legal venue. Again, this is another reason we faculty encourage you to always ask permission before recording someone. And please note: it is illegal in all 50 states to record a conversation to which you are not a participant—by planting a bug or tapping a phone, for example.

Furthermore, 13 states prohibit the unauthorized use of cameras in private places: Alabama, Arkansas, California, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, New Hampshire, South Dakota, and Utah. In addition, several states have laws banning the use of hidden cameras at livestock farms. These so-called “ag-gag” bills were passed in response to activists documenting the deplorable treatment of livestock at farms, which cast meat and dairy farmers in a negative light and led to some convictions for animal cruelty.

When Surreptitiously Recording Interviews Led to a Pulitzer

In 1985, reporters at the Lexington Herald-Leader received a hot tip: basketball players at the University of Kentucky were being rewarded by a cadre of “sugar daddies,” who had been paying the recruits to enroll at the school. Basketball in Kentucky is practically a religion, and the story had major implications. While the Herald-Leader wanted to publish the story, editors worried about pushback. Under the firestorm of criticism sure to come, would players change their tune?

The editorial team came together to strategize. The reporters assigned to the story, Mike York and Jeff Marx, wanted to tape their interviews with players. Because Kentucky is a one-party state, this would be legal although unusual, since journalism ethics usually require a reporter to disclose that.

Still, the paper’s editors decided to go ahead with it. As Herald-Leader special projects editor David Green later wrote, “We didn’t want to be faced later with a flood of lawsuits from players who came under pressure to recant. And tapes would protect us by providing indisputable evidence of what had been said.” The players knew, after all, that they were speaking with reporters on the record.

If any interviewee asked if he were being taped, though, the reporters would come clean. Another reporter working for the paper had recently denied surreptitiously taping someone who he was in fact taping and this cast the paper in a sneaky light. The Herald-Leader didn’t want to enhance that reputation.

York and Marx went ahead with the story. After months of investigation, the paper published a series entitled “Playing Above the Rules,” detailing the illicit payoffs and gifts to players. Immediately, furious phone calls and letters poured in. The paper received a bomb threat to its building and bullets crashed through a window. Hundreds of readers cancelled their subscriptions.

As reporters and editors expected, players denied had ever admitted to breaking the rules. But the Herald-Leader revealed it had tapes to prove it. When the dust settled, the Herald-Leader won a Pulitzer.

Taping subjects who know they are speaking on the record is one thing. What about taping subjects who don’t know?

The ethics of more secretive taping may depend on the perceived newsworthiness of the revelations, and the context of the recording. In 2012, Republican presidential candidate Mitt Romney gave a speech at a dinner for donors in which he seemingly lambasted the poor.

“There are 47 percent of the people who will vote for the president no matter what,” Romney was recorded saying. “All right, there are 47 percent who are with him, who are dependent upon government, who believe that they are victims, who believe the government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you-name-it. That that’s an entitlement ... My job is not to worry about those people. I’ll never convince them they should take personal responsibility and care for their lives.”

A bartender at the event videotaped the speech and leaked it to a writer with Mother Jones magazine, and from there it became a national story, torpedoing Romney’s campaign. In the event, the obvious newsworthiness of the quote meant that nobody questioned whether the secret taping of Romney was justified, nor whether the tape ought to have been broadcast. This was a serious candidate for president of the United States; this was need-to-know public information.

On the other end of the spectrum is NBC’s, “To Catch A Predator.” Aired from 2004 through 2007 on NBC Dateline, host Chris Hansen would rely on a group of activist volunteers who fabricated online personas to lure men into what they thought were salacious meet-ups with children. When the men came to an arranged meet-up spot, Hansen would emerge and utter, famously, “Have a seat,” with cameras rolling.

The show was, for a time, quite popular, combining high drama with a universally reviled set of targets. But in 2006, one of the men killed himself as a SWAT team moved in. His family sued the network for $105 million (the case settled). Hansen’s last “Predator” segment on NBC aired the following year.

Many have called into question Hansen’s journalistic practice. Kelly McBride, ethicist at the Poynter Institute, noted that the parallel investigations between NBC journalists, the police, and the non-profit Perverted Justice ended up intertwining in ways that violated basic journalistic norms: instead of holding police accountable, reporters were acting as their de facto teammates.

More upsetting to the layman, though, is typically the gleeful shaming of those so caught on tape. McBride notes that Perverted Justice’s goal in participating in the series was to “shame and expose potential pedophiles.” Subjects were lured to the cusp of committing a truly reprehensible act, but it is not certain that they would have committed a misdeed had they not been in contact with the decoys. Their misdeeds, meanwhile, were not simply exposed but turned into a voyeuristic form of entertainment. Journalists generally aim to be engaging, but the obvious pleasure the show took in watching the potential predators implode was another matter entirely.

Hansen stresses the moral and narrative integrity of his show, noting that it is good exposé storytelling. But “when you put it all together,” Hansen told the New Republic, “not only does it take you inside the minds of one of these guys, it’s very dramatic television.” Good journalism and good television, though, are sometimes at odds. “You can have fantasies all day long,” James Drylie, a professor of criminal justice at Kean University, also told the New Republic. “So what if you ignite a spark in a person that otherwise would not have been reignited? So I wonder sometimes: is art imitating life? Or is art directing life?”

If we are to assume that the subjects are innocent until proven guilty, then it would seem that filming the confrontations between the would-be sexual predators and Chris Hansen and splashing them across TV screens nationally is hardly responsible. And that is and important difference between “To Catch a Predator” and the Romney and Kentucky basketball stories. In the former, the secret taping is used primarily for shock value and entertainment. In the case of Romney, it was used to expose nationally newsworthy events taking place anyway. In the case of the Herald-Leader, taping was used to ensure that source material was accurately and securely kept.

“I think the providence is less important than the journalistic method, and whether you can verify what method was used,” says Brooke Kroeger, a journalism professor at NYU. Kroeger supports the tactic of going undercover and taping sources, noting that such methods, while generally frowned upon by old-school journalists, have been used to break big stories time and again. “There’s value on several levels,” Kroeger says. “It brings attention to important issues. It makes the significant interesting. When it’s done well, it is usually done in combination with documentary investigation, other ways of pulling out material, and then you add this as almost a kind of theater that brings attention to the material.”

As for the intrepid reporters and editors of the Lexington Herald-Leader, their investigation showed that over a 13-year period, University of Kentucky basketball players routinely received cash, accepted fees for public appearances and sold their free season tickets. The reporters interviewed 33 former players on the team. Twenty-six of the former players told them they had participated in the kickback scheme, which violated NCAA rules. Of the 33 players interviewed, 31 said they knew about the payoffs. For their efforts the reporters, Jeffrey A. Marx and Michael M. York, were awarded a Pulitzer for their series, “Playing Above the Rules.”

Secretly taping sources can be a powerful tool in the journalist’s arsenal. But it is never an excuse to discard basic tenets of good practice.