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Is It Legal For a Soldier to Record You?
It Depends!
While the possibility of recording a conversation has been around for a long time it is only within the last decade or so that concealability and portability have made the likelihood of Soldiers recording a conversation a significant possibility. As of the writing of this article I have not seen or reviewed any legal opinions from JAG concerning the legality of a Soldier recording a superior with regard to a counseling session. In my personal opinion there are two schools of thought.
The first says that the event is probably taking place on a military installation which means jurisdiction would most likely fall under federal law. My understanding is that as long as one party of the recording has knowledge of the recording it is legal. There may be cases in which state law may come into play. In some states the law forbids the recording of conversations without both parties being aware the conversation is being recorded.
If a Soldier violates a law by recording a superior, the Soldier can be held accountable for violating a law or regulation. For example, if no electronic devices are allowed in a secure area it would be illegal for a Soldier to record a conversation in this area. Depending on the specifics of the case, it is possible that the Soldier could record illegal or inappropriate action (for example hazing) and that this information could be used to punish the individual responsible for the hazing. It is also probable the commander could use the recording of the information to punish the Soldier who illegally made the recording because they violated a security law.
It is my opinion in a case like this the commander would have the latitude to punish both offenders through non-judicial punishment (Article 15) proceedings under the Uniform Code of Military Justice (UCMJ). However, if these offenses would be taken to a court-martial, Rules of Evidence (ROE), as established by the Manual for Courts-Martial (MCM) apply. Admissibility of such evidence would be determined by the judge presiding over the court martial.
Keep in mind, if an individual is concerned enough to record a conversation, chances are it is a situation that involves one the following possibilities: abuse of a subordinate, abuse of power/privilege, hazing, lack of trust, etc. These issues do not usually rise to the level of courts martial, but are usually left up to a commander to administer and impose punishment. In these cases, the contents of a recording may well be allowable. We will discuss more of the legal aspects of a recording in a separate article.
Finally, a few points:
1. Usually a Soldier feels they need to make a recording because there is a lack of trust. If this can be overcome the likelihood of a recording is diminished.
2. If you are conducting yourself in a professional manner you should have no concern of a Soldier making a recording of you.
3. If you have not already been recorded odds are you will be recorded in the future.
For more information on this subject see:
Is It Legal For a Soldier to Record You?
It Depends!
While the possibility of recording a conversation has been around for a long time it is only within the last decade or so that concealability and portability have made the likelihood of Soldiers recording a conversation a significant possibility. As of the writing of this article I have not seen or reviewed any legal opinions from JAG concerning the legality of a Soldier recording a superior with regard to a counseling session. In my personal opinion there are two schools of thought.
The first says that the event is probably taking place on a military installation which means jurisdiction would most likely fall under federal law. My understanding is that as long as one party of the recording has knowledge of the recording it is legal. There may be cases in which state law may come into play. In some states the law forbids the recording of conversations without both parties being aware the conversation is being recorded.
If a Soldier violates a law by recording a superior, the Soldier can be held accountable for violating a law or regulation. For example, if no electronic devices are allowed in a secure area it would be illegal for a Soldier to record a conversation in this area. Depending on the specifics of the case, it is possible that the Soldier could record illegal or inappropriate action (for example hazing) and that this information could be used to punish the individual responsible for the hazing. It is also probable the commander could use the recording of the information to punish the Soldier who illegally made the recording because they violated a security law.
It is my opinion in a case like this the commander would have the latitude to punish both offenders through non-judicial punishment (Article 15) proceedings under the Uniform Code of Military Justice (UCMJ). However, if these offenses would be taken to a court-martial, Rules of Evidence (ROE), as established by the Manual for Courts-Martial (MCM) apply. Admissibility of such evidence would be determined by the judge presiding over the court martial.
Keep in mind, if an individual is concerned enough to record a conversation, chances are it is a situation that involves one the following possibilities: abuse of a subordinate, abuse of power/privilege, hazing, lack of trust, etc. These issues do not usually rise to the level of courts martial, but are usually left up to a commander to administer and impose punishment. In these cases, the contents of a recording may well be allowable. We will discuss more of the legal aspects of a recording in a separate article.
Finally, a few points:
1. Usually a Soldier feels they need to make a recording because there is a lack of trust. If this can be overcome the likelihood of a recording is diminished.
2. If you are conducting yourself in a professional manner you should have no concern of a Soldier making a recording of you.
3. If you have not already been recorded odds are you will be recorded in the future.
For more information on this subject see:
counseling-in-the-digitial-age
Posted from asktop.netPosted in these groups: 
Counseling
Counseling
Posted >1 y ago
Responses: 2
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I really appreciate this post as I have been unsure of the potential ramifications of taking such a course of action in some past circumstances. Thank you for the insight.
(2)
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Depends on when / where / what is being discussed. If any confidential / secret / top secret is being discussed there should not be any electronic devices present.
(2)
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