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Surveillance, Social Media and Spying Part I: Wiretaps, Audio Evidence and Video Surveillance Rules

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Surveillance, Social Media and Spying Part I: Wiretaps, Audio Evidence and Video Surveillance Rules

This course discusses the rules surrounding audio recordings, the wiretap act and video and audio surveillance. The course details the basic statutory and common law rules regarding private party surveillance and how that applies to civil litigation.

Transcript

- Hello, my name is Wes Bearden. I am the chairman of the board for Bearden Investigative Agency, which is a private investigative agency based in Dallas and offices throughout the country. Today, we're going to be talking about surveillance, social media, and spying. That's a neat name. But what we will really be doing is talking about the rules and privacy law surrounding things such as the Wiretap Act, tracking devices, detailed investigations, facial recognition, license plate recognition, drones, all sorts of neat things that tend to find a way to creep himself up in all sorts of types of litigation. A little bit about myself. I am a licensed attorney in Texas, Louisiana, New York, and the District of Columbia. My primary practice area is Dallas, Texas and New Orleans, Louisiana. I'm also chairman of the board of Bearden Investigative Agency, which, as I said, is a large private investigative agency based in Texas. It is a family company that's been around for almost 50 plus years. That's given me a really kind of a unique outlook in life because I've been able to both be an investigator and as well as a trial lawyer, civil trial lawyer, and learning how these things interact with each other and helping represent all sorts of different types of clients. Today, we are going to be going through quite a large area of law. And this is a large area of law that I tend to occupy and teach other private investigators, law enforcement officials, forensic professionals, lawyers, a little bit about this area and map it out for you as best I can. Now, you know, when we talk about fact investigation, there are really three areas of fact investigation. If I were to take some new recruit out of Quantico at the FBI, they would probably give me answers that are somewhat similar to this. The first is research. Well, research is a whole area of law that's governed by all sorts of federal law, from the Fair Credit Reporting Act, Gramm-Leach-Bliley Act, the Privacy Act, there's probably just dozens of areas of statutory law that talks about the types of research that may be out there available to you. You know, it's more than just the background check, correct? It could be about how a company operates, the connections between witnesses, the financial picture of an individual or whole organization. The second area is surveillance. And this is the area that we're going to kind of occupy today and really talk about the rules of. Surveillance can be, back in the old days, as you may remember from the 1940s and '50s old television shows where there's somebody in a fedora and a long coat sitting in a car, watching someone else to what's happened today in terms of video surveillance, satellite surveillance, drones, all sorts of things. We'll talk about a little bit each of those areas as this course continues. And then finally, interviewing, right? Every police officer has some type of interview they do when they pull you over for a traffic ticket. You as a lawyer also have an interview, which is usually in a deposition or maybe even more formal at trial, and that's a third area of investigation. Now, one and three are good, great areas to learn and understand how those work within your case. But today we're really going to be sitting around in number two, which is surveillance. Now, why is this area of law so important? Well, it's a very large area of law when you start talking about privacy law, because it's not all centerized, you know. We don't have a penal code or family code or UCC for this type of privacy law. It exists both in common law, constitutional law. It exists at statutory schemes, both at the federal and state level. So, it is a wide, wide area of law. How this helps you become a better lawyer is that if you kind of remember back to your old law school days you had two types of things: you had facts and you had law. Generally, you had to apply the facts to the law. Well, if you could change the facts, you might be able to change your outcome, and that's the reality of it. Because most scenarios, as we all know, have three sets of facts at least: your set, your opposing, you know, counsel's version of the facts, and of course somewhere in between those two lies the truth. And so that's what we're trying to do, is trying to use these rules to help develop facts that are worthwhile. I hope today I don't scare you off from using investigators and from conducting your own fact investigation in every case that you have. But these rules can be a little bit quirky and it's important for you to make sure that you have some understanding of them. All right, as we talk through today, there are generally three types of relationships that alter these general rules. Well, the first one's pretty easy. It's the police. Generally, any type of government actor it's altered by your constitutional amendments, your Fourth, Fifth, Sixth, but predominantly your Fourth Amendment. And there are tons of courses that exist out there today that talk about Fourth Amendment law. There are Fourth Amendment updates probably, as we talk today, being given at CLEs all across the country. So, where I have the chance, I try to not deal with those because I think they're widely covered. I try to deal with cases that are civil litigation cases or trial cases that I think tends to exemplify the rules and relationships between private parties, okay? So, where it's possible, I will try to defer to a private party case as opposed to a police state or US government versus Jones type case, okay? There are two areas in the civil arena where the rules also begin to shift. Number one, your familiar relationships. That kind of makes sense when you live with somebody or when you marry somebody or you occupy the same space as somebody, your privacy interests diminish. Maybe to some degree greater than others, but they do, they diminish just by the practicality of life. The third area is your employee-employer relationship. When you enter into that relationship, there are certain times where your privacy rights, again, take a little bit of a ding because you're working with people in a very close proximity in a close area. So, we'll talk about that. But as you look through these cases, look for these relationships because they can really help you determine what rules to apply. Now, the first act that we will go over, and we'll spend quite a bit of time in this first series, this is a two-part series, but the first part we'll talk about the Wiretap Act or what we call the Electronic Communications Privacy Act of 1986. Now, there's a reason we're going to spend quite a bit of time here today. And that's because the ECPA gives a lot of consent law within it, meaning that it talks about consent. One-party consent, two-party consent, vicarious consent, implied consent, which is somewhat akin to most of the rest of privacy law that we will see. However, it's also the only statutory scheme that's been around for such a long time that's actually worked, and it was unique when it came into being. One of the things that the ECPA did was it protected the wire, oral, electronic communications while in transit from interception by a third party. Now, if you think about that, that sounds like I'm reading it right out of the law, and it is, but why are we protecting the communications? We really hadn't done such up until that time. I get very sophisticated people call me all the time, and say, "Why can't I wiretap the phones? I own them. I pay the phone bill. It is my big office." And I'm talking about very influential, large company type people. "Why can't I do that? Because I have the property interest." Well, of course the ECPA doesn't protect property interest; it protects the privacy interest. It protect the communications between one party to another. And that's what made it so unique at the time and why it's lasted for so long since then. Now, generally, I've talked about communications, but I'm not sure that I actually said oral communications because we've also said that it can include at times electronic communications. This case here, Campbell versus Facebook, is a very interesting point to that point. And that is, is that Facebook, in this fact scenario, basically has a function called a private messenger. Of course, we call them DMs now. And every social media group has some way that you can communicate on the social media platform privately with another member of the social media group. What Facebook was doing here was allowing those to happen through their Facebook Messenger program, but what they were monitoring or keeping track of was the URLs that were within those messaging messages. So, you would, for instance, message your friend, "Hey, look at this funny lawyer cat video that's floating around on the internet," and of course you would send him the URL to the YouTube or other internet site that might have that. And what this court here has said, and it's a great comparison to what the common law rules are versus what the statutory rules are, but they said, you know, "That can be a violation of the Wiretap Act because you're basically monitoring the communications between two private parties who have failed to give you consent." So, again, it can be oral, but it can be other things as well. Now, what happens when you violate the Electronic Communications Privacy Act? I think, I think you all know that you can't wiretap your next door neighbor, right? Or your opposing counsel, or anybody else. I think we know that. Maybe we don't know where the statute exactly lies, well, we do now, it's in the ECPA. But what happens when you violate that statute? Well, three things that I think are kind of important. Number one, in the federal system, there's a strong exclusionary rule, meaning that whatever you've recorded is not coming in as evidence. I'll say this, though, that may not necessarily be the same case for you in your state. And, in fact, some states do allow legally recorded evidence to come in for different reasons, like impeachment. Now, is that something that I would encourage any individual or client to do, of course not. I think it's disastrous for you to do that. But you should be aware that an exclusionary rule, while strong in the federal system, may not necessarily be identical in the state system. There's a criminal penalty. And we'll talk about your state acts here very shortly, but both in the federal and states' Wiretap Acts, there's always some type of criminal penalty that exist. However, getting prosecution can, a lot of times, be very difficult to do. I'm recording this today in Texas. As an old prosecutor once told me, "Wes, unless there's a lot of blood and guts, somebody's dead or been raped, or a lot of money missing, what are we really doing here at the courthouse today?" And I hate to say that, but, unfortunately, these privacy law violations, that is the attitude taken by a lot of prosecutors throughout the country, is that they just may not be as serious as the robberies, the burglaries, the murders, the rapes that are being prosecuted on a daily basis. A lot of times in the criminal system, where you'll see these type of cases and where they'll get prosecuted, is what I call pile-on charges. "Well, we've arrested you and we're prosecuting you for fraud or theft," or whatever. And as part of that, you have, that fraud and theft was a violation of the Wiretap Act because that was your MO into conducting that crime. So, a lot of times you find that they're pile on charges, but still it happens occasionally. The next best thing is your civil remedy, which, in many state statues, provides a minimum liquidated damages. That can kind of be important. Because although I may have recorded you, what damage did you really receive? As you of course know if you're a civil trial lawyer, damages, many times, is half the battle. So, the minimum liquidated damages, and here it's $10,000 under the federal act, but it can allow you to at least, you know, proceed on these claims if you don't have substantial damages. Okay, now let's talk about some of the exceptions that exist in the Wiretap Act. And the reason we want to spend some time on these is they're important to know. But, more importantly, how this Wiretap Act is set up and how the structure of it exists is how we see many of the courts dealing with some of the privacy issues that exist today. So, understanding the Wiretap Act, particularly when we get to the second hour of this presentation, will be real critical to understand where the courts are moving towards. And the first one of those is the federal interspousal exception. This is a very weird, narrowly written exception that's only honored in about two circuits, the Second and the Fifth Circuit. Of course, if I'm calling you from Texas, Texas and Louisiana are in the Fifth Circuit, and of course they apply. Now, if you read this Simpson versus Simpson case and you read it carefully and you go back and look at the legislative history, basically what the Fifth Circuit has said here is that they did not believe that this federal Wiretap Act, which was really meant to prohibit wire tapping and commerce, you know, really meant to, that it didn't really intend to regulate any type of the marital controversies that exist at the state level. And so they have never applied the Federal Wiretap Act to situations in your household, like I've talked about in that second or third slide there, that talked about, you know, your household type relationships. Well, unfortunately, that's on the Second and Fifth Circuit. Most of the other circuits have overruled that and has created a bit of a split. It's also pretty much useless because in most states, like here in Texas, we've basically adopted the federal wiretap statutory language. So, while you may escape liability from the federal system, your client probably will be liable under the state system where most of these cases are really going to be enforced and regulated and prosecuted at. So, it's not that great. Now, there is only one state who probably has taken the same view as the Second and Fifth Circuit, which also is in the Fifth Circuit, which is the State of Mississippi. And Mississippi has done the same thing. It may be the only state in the union now that allows you to wiretap your spouse. As we'll see in the second hour, that may be great from a statutory scheme. You may be, "Oh, well, if I live in Mississippi, I can wiretap my husband now and see what he's up to." However, that still may not necessarily free you from liability. Because, as we'll talk about in the second, part two of this presentation, invasion of privacy is still a very real tort that you could be sued on, and probably fairly successfully, regardless of whether you violated the statute of Mississippi, Texas, New York, the federal statute, whatever. Okay, the second exception that exist in the Federal Wiretap Act is what we call the federal extension phone exception. And this is, again, goes back to the individual who call, the sophisticated businessman who calls me up and says, "Well, it's my phones. I pay for them. I write the bill. I bought the phone handset units. I should have a right to listen in on my employees." Well, unfortunately, that's not what the law has said. This extension, and many times they'll quote this extension as justification for doing such a thing. But if you really read about it, it really only allows certain people the ability to follow with underneath this exception in the ordinary course of business. And what that generally has meant is it meant two types of people, as the course have begun to narrow that, this exception down over the years. The first type are 9-1-1 operators, meaning when you call into 9-1-1, you have a right, under the ordinary course of business, to basically have that call recorded. And there's all sorts of good public policy reasons that that should exist. The second reason, frankly, that exist is in telephone or telegraph operators, workmen, right? Many times the lineman that is out there trying to wire the home to the phone company has to listen in to see if there's something actually transmitting on the wires. So, when he does that, he does not run afoul the Wiretap Act. Now, one of the 9-1-1, to give you an idea how narrow this is really, is this case down below, Anderson versus City of Columbus. Now, Anderson is a 9-1-1 operator. And, as I told you, she has all her calls recorded from the 9-1-1 call. And of course she has the headset on, a 9-1-1 call comes in, she deals with the 9-1-1 call, she then hangs up. Unbeknownst to her is her call continues to record for, you know, a minute or so after the call is terminated. Of course it's during this minute that Ms. Anderson decides to lean over to her fellow 9-1-1 call operator and begin to talk fairly badly about her supervisor. And of course her supervisor was listening in on the call and heard all these things and took, you know, umbrage at it. And of course she sues and says, "Well, you violated my Wiretap Act." The court actually finds that that may be true, because this exception only exist for the purposes of, that the ordinary course of business prescribed, meaning as soon as that 9-1-1 call ended, all rights under the exception ended and there could be no monitoring or recording of the telephone conversation beyond that. So, it at least begins to show you that the court has begun to kind of narrow these exceptions under the Wiretap Act, and has always, you know, taken a very, very, very needled approach to the whole issue. Now, as we talk about the Federal Wiretap Act, would be remiss not to talk about the State Wiretap Act. As we will see under the Wiretap Act, the federal system basically preempt state law and provides up to a minimum level of privacy protection. However, certain states can provide more. And that is why we have two-party versus one-party consent states. If you've been practicing awhile, I'm sure you know that. And the best way for me to describe that today is let's pretend that this is a telephone call and I am in a one-party state or I'm under the federal rule. So, I'm in the District of Columbia, for instance, or I'm in Texas, which is a one-party state. I can record this conversation between you and me without any knowledge of you. I can do a covertly. I can record it. I can come into your home and have a recorder on my person, recording our conversations together without you knowing. It happens all the time with reporters, police officers, investigators, all sorts of types of people. However, if I am in a two-party state, I cannot do that. I have to get your consent. And where are those two-party states? California's one, Florida, we'll talk about a few of them here in a minute. But I must have the consent of everybody within the conversation. In fact, in the next slide, as you'll see here, there's 10 states that we consider to be two-party consent states. And as you look at them, there's some pretty big states there. California, Washington, Illinois, Florida, Pennsylvania. Although they're a minority, these are pretty large states. And two-party consent can make or break any type of investigation. One of the practicalities that I'll even say in a one-party state is the failure to actually record consent. I can't tell you how many times I've seen a criminal case fall apart because a police officer failed to document that his cooperating witness consented to the recording. Sure they may have told him they consented, but he failed to get something signed or he failed to get it documented so that he could make a recorded call using one-party, okay? So, it might be something to seriously think about when you're doing anything under a one-party, two-party consent state is not only just making sure that you have consent, but making sure that you can document it as well. Now, some of these states are what I call two-party plus states, okay, or states that are either complicated or they have ambiguous statutes. And I've put about five of them here on the next slide for you to kind of look at and be familiar with. If you're in your state, you probably ought to pull these statutes and take a good look at them and make sure that you understand them. Now, for instance, Washington and Montana are two-party, but they require kind of a notice-and-announce provision. "We are going to be recording you at this time," or something to that effect. You have to give some type of notice. Illinois prohibits recording of a private conversation. Well, what does that mean? Aren't all conversations theoretically private? Well, no, because certain public conversations may be worthwhile to record. And, in fact, what the Illinois statute tries to do here is protect what I call the courthouse gaggle, right? When the press meets out on the courthouse doors and you've won your major trial victory and you come up and you give a quote for all the, you know, big town newspapers right there, they can record that conversation so that they can go back and make sure that they quoted you correctly. Some say it's like Massachusetts and Hawaii. That, yeah, two-party consent is required if it's installed in a private place. Well, that's typically been a home or someplace where you have some expectation of privacy other than just out in public. So, it's important that you understand that. If you live in these five states, I would tell you to go look at your statutes to make sure that whether you're doing it, your investigator's doing, your client's asking you whether they can make a recording, you have some understanding about how these two-party consent statutes work. Now, sometimes the statutes can change. Well, maybe. There are two cases in front of you which are very unique. The first one on the left is AFT Michigan versus Project Veritas. The second one is Fisher versus Perron. If you look, they are both within the Eastern District of Michigan. But they take a wildly different look. Now, this case has actually been resolved fairly recently, but I still think it's a worthwhile talk through about how sometimes these statutes that have been on the books for 40 or 50 years begin to shift on their own. So, in AFT Michigan versus Project Veritas, Project Veritas is a group that is a political journalistic group that is right-leaning, that conducts kind of journalistic investigations. And they've done all sorts of people over the years. I think they've done the Democratic Party, they've done planned parenthood. And here they are conducting investigation of the Michigan's teachers union. Now, without getting into all the details of this case, basically Project Veritas has a history of putting people in undercover, recording people under one-party consent and statutes, and getting admissions on videotape or audio tape that they then put into a story and that's been their MO for some time. And that's what they do here with AFT Michigan. And Michigan, this teachers union sues them for all sorts of things. But one of the things they say is they say, "Well, listen, we've read the Michigan statute. And it's a one-party statute, it's traditionally been interpreted as one-party statute. But when we read it, we really think it means that, it means the whole state's been a two-party state, it's just been misread for this many years." Now. I haven't put the Michigan statute up here. But if I did, it would take you probably more than a hot minute to really sit down and read the statute to try to figure out, without me telling you, whether Michigan is a one-party or two-party state. It's confusing at best. And it probably is a bit ambiguous. But what this case had done, what the teachers union had done was they asked the court to strictly construe the statute and to consider it to be a two-party state, find that Project Veritas had made these recordings in violation of state law and hold that they violated the Wiretap Act. At the same time, around the same time, Fisher v. Perron is going on. This case, in the same district, is a little bit more boring case. It's basically a trustee or an executor fighting with some beneficiaries who record the trustee on the telephone. And one of the parties in the Fisher v. Perron say, "Well, hey, look, AFT, the teachers union is trying to make it, you know. We don't think that this is a legitimate recording, Your Honor, because we think Michigan has gotten it wrong all these years. And Michigan, in fact, is a two-party state, not a one-party state." Of course, the judge in Fisher said, "No, we've been a one-party state. We've been holding it's a one-party state for so many years that it's law now." And the Project Veritas case, the judge actually asked the Michigan supremes to do certification on it and make a ruling on whether or not the statute is one-party or two-party. I think the supremes actually turned them down to make a ruling. And eventually, fairly recently, Project Veritas won their case there by proving that the court found that it is a one-party state. And so the purpose of these two cases here and why we're talking about them is to understand that these statutes have been on the books for some, some time. But when you read them, they get confusing. And sometimes things can change and the ground is always shifting. And this is on stuff that's been around for 50 years. As we start getting into newer technologies, it's difficult for these courts. And, in fact, these courts will always, always be behind in terms of privacy law because there is always a new gadget, there's always a new social media, there's always a new drone statute. So, it's difficult. Now, let's talk about, figuring out now, you've got your two-party, your one-party state, maybe your state isn't like Michigan, they haven't changed, and you are in Texas, which is a one-party state, and now you want to call, or you have your client or your investigator call the witness in California, where it's a two-party state, whose rules apply? Well, in the next slide, you have a kind of blast from the past, this dynamic duo of Monica Lewinsky and Linda Tripp. Well, if, not to harp on politics, I'm trying to be as fair-minded as I can, but this of course was during a lot more fun time in politics than it is today. But for those of you that don't know the story, Monica Lewinsky was engaged in an affair with then-President Bill Clinton while she was an intern in the White House. She left the White House and she wound up meeting Linda Tripp, I believe, in the Pentagon. And she confessed to Ms. Tripp about her, all the details of her affair with then-President Bill Clinton. Ms. Tripp recorded several of those conversations between her and Monica. Now, if you're from the D.C. area, I think you know. You can kind of get in a car and you can drive and you can be in about two or three states and the district within about 45 minutes. I mean, everything's very close, unlike Texas. And during these calls, while she was in Virginia, for instance, she was in a one-party state. So, that was okay. While she was in the District of Columbia, she was recording these calls with Monica and that was okay. She was in a one-party jurisdiction. Federal law allows for one-party. But when she traveled into Maryland, which is a two-party state, regardless of where Monica was at, she probably ran afoul of Maryland's recording law that required her to get Monica's consent. And so what we saw shortly thereafter is after the Lewinsky scandal broke, Ms. Tripp was indicted actually in Maryland for violation of the Wiretap Act or the State Wiretap Act because she failed to get Monica's consent. Now, I don't think she was ever prosecuted. I think she actually made a deal with authorities at that time, probably because she was cooperating with Ken Starr, who was the independent US attorney who was conducting the Watergate or Whitewater investigation and the Monica Lewinsky investigation. But it goes to show you where you record is kind of critical. Now, let's kind of extrapolate that to some of our cases. Let's say we're in Florida, which we've already identified as a two-party state, and you decide that your investigator or your client says, "You know, I'm going to run over into Alabama real quickly and make a quick call to the critical witness in Miami or Orlando or wherever and try to get them on recording so that I can use it at trial." What about that? Well, anytime you have cross-border issues, you have conflict of law issues. And that's kind of what's represented in the next couple of slides, a couple of cases that we'll talk about. Let's first talk about the rule. And generally, the rule that applies in this type of situation is what we call the most significant relationship test and that's in the Restatement Second of Conflict of Laws. It's two sections, but really it's the factual considerations that make a difference in these types of cases. So, let's say I'm here in Texas and let's say I decide to call someone in California and I get to record them on the phone. Well, how's the court going to decide? Do they apply Texas law, where I'm a one party-state, or do they apply California law? Because if they apply California law, then I violated the state statute in California. It's very likely the recording's not going to come into evidence. I might have subjected myself up to civil liability and criminal liability and created all sorts of issues. So, the way this is decided under this four-part test is the first three almost always fall out the same. For instance, the place where the injury occurred. Well, that's usually where the recordee is. So, in my hypothetical here, that would be in the State of California, right? If you're in California, you're the one where the injury took place at. Where did the conduct causing the injury occur? Well, that's usually where the recording's taking place, and that's in Texas. So, if we're looking at the scoreboard, we have one for California, we got one for Texas. The domicile, residence, nationality, place of incorporation, place of business of the parties; well, where are they from? It's mostly domicile, but where are they from? Well, in most of these type of scenarios, you're from California and I'm from Texas. So, now we've got two-two on the scoreboard, where do we go from there? And it's always in this last factor, the place where the relationship, if any, between the parties is centered. And that usually is the most critical part when you have cross-border recordings. Now, there are two cases that I want to talk about on the next slide that I think really illustrate this concept. The first one is Becker versus CSC. Let me give you the facts of that case. CSC, Computer Science Corp. is a huge corporation, I think it's probably Fortune 500 or Fortune 100 company based in California. Becker was a gentleman they hired as a manager out of their Houston office. Becker and CSC began to have an employment dispute, amongst other things, and so Becker begins recording his calls with supervisors or managers that are in California. A lawsuit entails, Becker gets to trial and says, "Well, I would like to put in my recordings of these conversations." And CSC jumps up and says, "Whoa, whoa, whoa, whoa, wait a minute. You can't do that. I mean, that was in violation of California state law. You never got our consent for these recordings, and so these recordings shouldn't come in and we should also be able to file a suit against you for violation of the Wiretap Act, which we intend to do." And the court says, "No. We actually think that Texas law should apply here. And we think that because Becker's relationship with CSC was a manager of the Houston, Texas office. The relationship between the parties, really if, whatever was based there was an employment relationship and then employment duties in the relationship were based really in the Southern District of Texas, and that's the law that we're going to apply here." And so CSC loses out and Becker wins. The second case is another California case, fairly somewhat similar, Eccentric versus Brodequin. Different relationship here. Brodequin is a guy who's calling into Eccentric's voicemail, or excuse me, into their main office number. Now, I think that Brodequin is trying to purchase some type of product or services from this LLC. He calls in, he hits a phone tree, dial one for this, two for that, whatever, he gets to somebody and that telephone call is recorded. Somehow the deal goes bad, Brodequin sues and Eccentric wants to use a recording of the conversation that Brodequin initially made contact with them about in the underlying litigation. Brodken jumps up, again, says, "Whoa, whoa, whoa, I'm from California. That's a violation of the Wiretap Act here in the State of California. You should have had my consent. I want it kicked out, and I also want to file a lawsuit against you for violation of the Wiretap Act." Well, the court here, again, in Arizona, says, "No, really the relationship of the parties is Arizona. Because, Brodequin, you called in to be a purchaser of goods and services from this company in Arizona, they didn't try to reach out to you." And so that's kind of how both of these cases are resolved. Now, you've been practicing for a while. You also know that anytime you have a conflict of laws issue, whether it should be or shouldn't, many times that's where the judge is sitting, which is who the winner's going to be. So, you might kind of consider that from a practicality standpoint. I don't think there's a factored test that tells you that. But it is something at least you consider about where your court is going to be, because that tends to be the law that they're going to tend to apply. Okay, so we've talked about one-party consent, we've talked about two-party consent, we've also talked about cross-border issues and conflict of law issues. What about consent where you can consent on behalf of someone else? And that is vicarious consent. And the case in front of you is Pollock v. Pollock. Now, I'm not going to get into the facts of that case, rather there are a number of cases that exist below that, as you can see, are almost all criminal cases. They are State v. Morrison, State versus Diaz, Alameda versus State, and I'm going to talk about those first. But Pollock held the rule that says, "Listen, if you are the guardian of a child and you have a good faith, objectively reasonable basis for believing that it's necessary to do so and it's in the child's best interest, you can consent to recording that kiddo's conversations." If you are a family or a child custody lawyer, this would be a particularly good time to pay attention because vicarious consent is something that's talked about amongst a number of family lawyers right now. And so they held that. Now, let's deal with the criminal cases first. Because if you really look at these cases down below, they almost all follow the same fact pattern. And it's eerie how similar these fact patterns are, but we'll start with Alameda, which I think it's representative, of course it's a Texas case, which one I'm most familiar with. Alameda is a guy who is dating a single mother, who has also a 15-year-old child. And so while he's dating this single mother, she begins to suspect that he is trying to engage the 15-year-old daughter in an inappropriate relationship, and maybe she's trying to make the move. So, mom decides that before she leaves to go to work that day, what she's going to do is place a recording device somewhere in the house. And so she does so on one of the telephone lines and records a number of telephone calls between the 15-year-old and this adult male talking about all sorts of things that they shouldn't be talking about. So, she takes the evidence, she goes down the next day to the police department, the police department use it as evidence to continue their investigation, probably get another warrant, and Alameda winds up getting arrested. With, you know, additional information that had come through additional evidence, they get to trial. The prosecutor jumps up and says, "I would like to play the recording of the telephone call between Alameda and the 15-year-old for the jury." Alameda jumps up and says, "Wait, this is a violation of the Wiretap Act. Even though we are in a one-party consent state here in Texas, I didn't consent to the recording. And the 15-year-old daughter, she didn't consent either. So, how can you do this? This is a recording, it's search and seizure. You needed a warrant for this, if you were the police. And she didn't have the right to do it under the statute as is." And the court says, "No. In this situation, we would allow this because she had a reasonable basis to make these recordings. There is no relationship that it should ever be sexual nature between a 15-year-old and an adult male. You know, it would be essentially statutory rape no matter the consent that existed there or not. And it was in her best interest to make these recordings because if this type of activity was continuing, she needed to do this as part of her parental duties." So, all of those cases that are listed there at the bottom basically follow that same fact pattern. They believe that there's a kid that is engaged in something inappropriate, they record their kid's cellular telephone or the home telephone lines, they obtain some information, and run to the police department for some relief. And almost, not almost, all of those cases, the court allows that type of activity. Now, I know what some of you are thinking. This is great, right? Because I can now tell my child custody client that, you know, we'll just slap a wiretap on the kid and send him back over to dad's house and figure out what dad's doing wrong, right? Well, wrong. Because if the court doesn't find that you have an objectively reasonable basis or that it wasn't in the best interest of the kiddo, guess what, you violated state law and maybe you've even encouraged your client to do so and you're part of that now. So, this is one of those things in law that's great from a theoretical standpoint, but it would be horrible in practice. And I would encourage you never to do something, encourage any type of a recording via vicarious consent, unless it was some crazy fact scenario. Now, as you look at the next two cases, Doll and Smith, these are two cases where it did work within a trial custody case, but there are very few of these cases, considering the hundreds and hundreds of thousands of cases that have been litigated in the family court systems every year since the Pollock was first decided in 1998. But here are two that did work. And if you look at them, they are two that still had some very unique fact scenarios. For instance, in Doll, dad recorded mom talking to the daughter, and the mother was trying to coax the daughter to take prescription painkillers. She was graphically discussing a miscarriage with the daughter. She was graphically telling the daughter that she's a spirit of the dead baby, and telling the daughter that she was born with the wrong biorhythm. I mean, these are kind of outlandish accusations and recordings, and there's obviously something mentally wrong with the mother to engage in these type of things. But you don't know that these type of admissions are going to come out. And, again, I would strongly encourage you to avoid this as a strategy in any type of case. The second one, Smith is just somewhat similar. Mom here is telling the child to lie to the court. "Make sure that you fail school so that you can make your dad look bad. Lie to the custody evaluator. Take pictures of messy house, keep track of every argument." Basically trying to get the kid to act as a, you know, to lie to the court and distort the facts so that she can get an upper hand in the litigation. Well, again, it worked in these two cases, but I think that is very, very rare. I would also submit to you, both as investigator and lawyer, that if these things are happening, there's probably another way to get to it. These things probably don't happen just on the telephone. They probably happen during visitations as well. They probably happen in public. There's probably a whole history of behavior that you can go out and uncover that would provide you with a lot less potential liability than rolling the dice and wiring up the kiddo or the diaper bag or whatever, okay? So, something to think about. Now, while we're talking about children, I want to take a minute to talk about this Amazon case, which I think is kind of unique and it really is worth looking at to some degree. BF versus Amazon. Now, there's several of these cases that have been filed. As you know, Amazon has Alexa. And if you don't have an Alexa or if you have one in your house, you probably all know that you can ask Alexa anything. You can ask what the weather is outside. You can ask what the score of the game was. You can ask her all sorts of things and she'll respond back to you. Well, it turns out that the things that you've been telling Alexa, Alexa hasn't necessarily forgotten. She's actually transmitting them back to her home base in Seattle or wherever it's at, and is trying to use those recordings to better understand you, right, to better get an understanding of what you're saying and how you're saying, how to better respond back to you. And the reason I've included this case is because I have to give some credit to the plaintiff's lawyers here. The plaintiff's lawyers brought suit and said, "Well, you violated the statutory two-party consent statutes in California, Florida," that's where most of these lawsuits are at, Washington, "because you didn't get our consent." But they didn't bring it under the people that bought the Alexa, which I thought was unique. Because the people who purchased the Alexa, of course they would be subject to all the shrink-wrap provisions, right, defenses, they would probably have to consent to venue being at some point in time, rather what the lawsuit's been brought under is the name of the children. And of course the children, you know, they didn't have a right, these are the children that are living within the home of the Alexa owner whose voices have been recorded, whose speech has been cataloged and analyzed, and so they have as much of an interest in their privacy as their parents do. And so it was kind of unique that they have brought it. This case is still working its way through the courts or have been some decisions. There are a number of them now. And it would be kind of interesting to see how Alexa continues on in the future. And again, this is a new piece of technology that we're trying to apply this recording statute, which has now been in excess, you know, and around now almost 40, 50 years and trying to figure out how this is all going to work out with this new technology. Now, one thing that I've kind of cheated you on is implied consent. Although that's not such a big deal in the civil arena, it is in the criminal area. And probably the biggest area, I've included the Texas case here, is jailhouse recordings, right? If you go in and talk to Uncle Joe while he's in prison, you can bet that, you know, the government has implied your consent for you and that those recordings are necessary. Same thing as the airport, certain areas. And I'm sure, if you remember some of that law back in the day, when you were in a criminal procedure course, that's a little bit of what that implied consent is. I'm cheating that area here because from a civil perspective it's not as important. However, the next question I get a lot, a lot, a lot, which is what about public recordings? Well, many of us know that there's this idea of reasonable expectation of privacy. And I get a lot of calls by lawyers, investigators, police officers, all sorts of people about recordings that are made in public and whether they can be used as evidence in a case. To give you an idea, not far from my office here in Dallas, there's a Starbucks. And on any given work day, you can go in there. And if you'll have a cup of coffee and sit down, you'll hear doctors and lawyers and stock brokers and financial professionals all talking about all sorts of things that if you were just to be quiet and sit at your table, you would probably overhear some good gossip. If you're in a big city like New York or Chicago, Dallas, Miami, LA, yeah, I'm sure that you have seen such venues, okay? But what happens when I record that conversation? Well, can that be done? And the answer is yes. It does have to go back to your expectation of privacy. But a lot of times when you're dealing with public recordings, it comes down to these six considerations, which the court begins to look at. We'll go over these and then we'll talk about two unique cases that I think exemplify this rule. So, the first deal is the volume of the communication, right? If I'm standing on top of the Starbucks table and yelling to the top of my lungs, the volume there is such where you can't ignore it, the proximity of other people. Well, if we're sitting right next to each other, your expectation of privacy has been diminished to some degree. The potential for it to be reported. If you could overhear it and you could report it, if I say, I'm going to blow up the Sears Tower tomorrow morning, well, and you can overhear that right next to me and you can report it, obviously that's a different, you know, I don't have that expectation of privacy. Affirmative actions. Have I shielded my mouth, for instance, or have I whispered, or have I gone to sit in the corner of the coffee shop to talk to you about something private? The need for technological enhancements. If you've watched "Starsky & Hutch" or anything that's a bit older like that, you used to be able to see this big boom mic. From a practical standpoint, let me tell you, the boom mic almost never works. It is one of those things that looks great in the movies, but in practical application it very rarely takes place. But it is also a technological enhancement because it takes the audio waves and magnifies them to what the normal ear would not be able to hear. Whereas if you don't have those technological enhancements, if you're just recording like your normal ear would record, well, then it's probably okay. And then the place or location of the oral communications, as it relates to subjective expectations of individuals who are communicating it, meaning is this in a restaurant? Is this in a back of a church? Is this in a grave site? Where is it that these people are talking about the subject matter that they are talking about? And, you know, what are the expectations of the individuals both subjectively and objectively at the time? But many times these six considerations or these six factors here really will help you get to the answer. Now, there are two cases that I think I see appear quite a bit. And the first one I almost see on a regular basis. I get a question about it all the time. It's got a couple unique little folds here, but what this is about is a reporter. And this reporter follows a couple of guys to what I think is probably an old Embassy Suites type hotel. For those of you not familiar with an Embassy Suites, it's usually like a huge hotel with a hollowed out core in the middle of it and they usually have like breakfast areas and coffee shops or whatever. And he follows these local politicians there and he's doing a story about corruption and he begins to record their conversations. And the court here goes through a long decision and writes fairly well, going through all six of the factors here, talking about some of the things that he did. You know, it was in a public area, they were having coffee, it was a tile floor, they were talking loudly, he was sitting at the next table. It appeared that the recording device was nothing more than a $20 recording device that he got out of Best Buy and that was okay. And ultimately, the court here decides, "You know, this is just on a motion for summary judgment, both these cases are motion for summary judgment." And they decide, you know, there's enough here that you could send it to a jury and let them decide, you know. Was it a violation or not? Did they have an expectation of privacy or not? But that's a very common fact scenario with investigators, law enforcement professionals, all sorts of individuals where they will follow an individual into a coffee shop, into a restaurant, into wherever and can they make that recording? So, something to really think about. The second one is a little bit more unique case, where these are some police officers who decide in a very high profile murder of a young girl, young child was killed. There was some belief that, the city of Raleigh Police Department had some belief that maybe somebody in the family had, in fact, been involved in this killing. And so there was going to be a funeral and it was highly publicized so that the family would be there. A lot of other people in the community would be there, there would also be media there. And so the police decided to place a microphone within the urn of this child's grave. And the idea being is that maybe one of these family members would come up to the urn and say, "I'm sorry, I didn't mean to do this," or give some type of graveside confession. Well, the court looked at that and said, "Well, you know, this is going to make a past summary judgment. The jury's going to have to decide. But we could see very well that a jury decides at your private moments, graveside, even if you are the killer, are protected privacy moments and that this is not a legitimate public recording. And I would tend to think I would agree with that. Regardless how good or bad you might be, your graveside recording is a time that is a private time generally. So, something to think about. Now, I've got a few things I want to try to get through here as quickly as possible. But one of the things that I haven't talked about really is video surveillance. We really haven't talked about video surveillance. I know most of you know that if you hire an investigator to go out and do surveillance of opposing party and he provides you video tape, that's probably coming into evidence. And there's all sorts of reasons for that. You know, video, I mean, evidence is, video surveillance is just extraordinarily useful surveillance in all sorts of cases from family law to personal injury, commercial litigation. You know, as somebody who ran an investigative agency, I was always somebody who relied heavily on surveillance because it told me what the parties or the witnesses were doing right now. Now, a couple things about it. If it's just truly video without audio, the ECPA is not involved. I mean, the Wiretap Act comes out, because there's no audio recording. There's no communication. It's just video. There are really few statutes that really regulate video. Now, many of them are in your state, and there are a couple here that I've listed. Your first one is your video voyeurism statute. The second one is your revenge porn statute. Well, you know, video voyeurism statutes are those statutes that say, "You can't make a recording for, you know, illicit purposes or to sexually gratify or whatever." Well, that's not normally going to come into effect if you're using investigators or you're conducting to have investigation where you're trying, you have a legitimate purpose other than sexual gratification. Your revenge porn statutes may not necessarily be the same. In fact, most revenge porn statutes, if you look very closely at revenge porn statutes, they are statutes designed to stop the idea of publishing an intimate activity that you have taken usually with consent. However, a lot of times they loosely define what intimate activity is. So, they may say that, you know, "What is intimate activity?" I mean, obviously I think we all agree that sex is, but what about holding hands? What about kissing on the cheek? That's something you would do with your baby sister or your mother, but sometimes those can fall with underneath the statute. And then usually it's, the second part of that statute is just simply publication, meaning you gave it to somebody else. So, if you think about that, what about the surveillance video where you see somebody kiss somebody out in front of a restaurant, which is not inappropriate, and then you publish that by giving it to the court or you publish it by giving it to, you know, your opposing council, for instance, have you run file of revenge porn statute. Something to think about, but these statutes are fairly new. And like any new statutory scheme, we pass it and then we have to revise it, which is what we did here in Texas. Now, sometimes when we deal with video surveillance, we have a reasonable expectation of privacy. And I've given a case here called tickets that I think hits the nail on the head because it hits a nail on the head between two spouses, which of course you would think that has the least privacy moment. You know, many of you are probably married. You say, "Well, I don't have privacy. I'm married to someone in my house." No, you actually do have a privacy, and you have a expectation of privacy even though you are married. Now, if you have children, maybe not. But this case is kind of interesting fact pattern. And I may get the, there there's several cases like this I may get the spouses mixed up, but let's just say that wife thinks that husband is messing around, so she decides to place a camera in husband's house. And she catches the husband bringing somebody over to the house and doing all sorts of things that she would not approve of. Now, she wants to use it. Husband says, "Wait a minute. That's a violation of my privacy. I had an expectation of it being private." She says, "Well, no, you don't have that expectation because we share the same room and it's only supposed to be me and you and it turned out to be me, you, and this other gal that I don't know and that's why we're divorcing." And there's all sorts of moral lessons to learn there, don't you? Guys, if you decided to step out, that's on your own business, but let's not try to bring them back to the house. But what the court here says is, "No, even though you're married, you know, by the fact of being married, you don't abrogate your privacy rights, okay? You still have privacy within your own home." And so they find that it is a violation of this gentleman's privacy rights and it allows invasion of privacy tort to continue. Now, there are cases that mirror this all over the country, frankly. This is not a unique fact pattern. And why I told you that may have gotten the spouses wrong in this particular case, they all kind of fall within that type of deal. And so I would kind of encourage you, be careful about that. There are sometimes, if you're a family lawyer, that that's what your client wants to do and you need to kind of sidestep that as quickly as possible because it can open up to some pretty crazy liability for you if not careful. All right, now, beware of the ring. I've just got this in here just as kind of a placeholder. Because, as many of you know, you know, ring, and many of these doorbells that are, that's the hot new thing now, the new technologies that exist out there, is monitorable by both audio and video. In fact, in my office building, which is in a high-rise here in Dallas, most of the suites now have ring doorbells or some version of it. And of course the video is perfectly all right, but they record the audio as well. And so many of these ring doorbells you can hit a button and monitor the audio that is outside of, in the hallway, which is a real issue. And I'll tell you that it's not just, you know, in office buildings. This is a real problem now in real estate showings. Many times realtors will come in, you'll show the house and look around the house, and then suddenly you decide to walk outside the front door and talk about what you're willing to offer, what you didn't like about the house, what you did, and of course the owner is listening through that ring doorbell about all your, you know, strategic negotiations. So, this has been a real big issue on a couple of different fronts, and it's something to think about. Because those recordings or those monitoring those conversations, if you're not a party of them, would violate the state statute and open you up to some criminal civil liability. All right, now the final thing that I'm going to talk about today is let's say you got your recording or your video, okay? We've talked about the video, we've talked about it doesn't need to have audio in it, that audio requires you to apply all the rules of the Wiretap Act, which, you know, and all those exceptions and all those consent issues. But let's say you did it right. Let's say you hired an investigator. Let's say, if you're a prosecutor, your law enforcement officer out there recorded just the video, the bad guy doing the thing. How do you use it? Well, that is one of those cases that is worthwhile to print and read. It is a Texas Supreme Court case. It will apply, I think, to almost every state of the union. But it's well-written, and it's well-written about the strategies of both plaintiffs and defendants in these type of video recordings. Now, let me just give you a bit of the facts and then we'll kind of talk about some of the arguments made. Williams is a guy who worked out in the oil field that got injured, got injured bad. And so the defendants did what a lot of defendant lawyers do, they hired a private investigator. Investigator went out there and recorded several days of surveillance where Mr. Williams was operating basically a backhoe on a piece of property when he was supposed to be severely injured. And so they begin to use that evidence and use it first in a deposition and then subsequently a trial. And the plaintiff's attorneys jump up and they first say, "Well, it's not really cumulative of all the evidence, Your Honor," which is a good argument. I mean, they say, you know, really the plaintiff admitted that he had done this stuff. It's misleading because it doesn't show all the circumstances of what occurred, meaning, you know, Mr. Williams had to take all sorts of painkillers to go. And after he got, you know, done doing the backhoe job that he had to do so that he could pay his mortgage, he was laid up in his bed for four or five days. Goes through it, talks about the authentication and predicate that you need to get video in. Generally, most states now, all you need is that an individual say that it represents an accurate depiction of what he observed at the time, which is usually the investigator. In this case, it was actually Mr. Williams who said, "Yep, that's me, and that was me doing it." In the deposition, he admitted that was him and that's what he had done on that particular day. It really goes through and talks about the rule of optional completeness. Do we have to talk about the entire video or do we have to only look at selected portions of it? Now, in Texas, one of the rules says is that the judge really should look through the entire video before making ruling on an evidentiary basis. But there's a lot of comparison to this to plaintiff's day in the life videos, right? Usually a plaintiff's day in the life video is a selected recording of what happens in that plaintiff's life that is then entered into the jury for consideration. And then it analyzes the admission based on basically, is this something you want for impeachment or your evidence-in-chief? Now, I don't have much time, but the last slide here really talks about how you should use your video recorded evidence and some considerations you should really think about. And there are some really good ideas here that maybe you need to kind of consider if you're doing some type of surveillance on any type of case, family case, you know, an injury case like this, commercial litigation, whatever. How do you intend to use the evidence, for what purpose? Do you want to use it only at trial? Do you want to use it at deposition? You know, what type of evidence do you want? Do you want the video, the report, the affidavit, the testimony? I'll tell you, that many times the reports are what's desired by most courts, particularly in most hearings, because it gives them something tangible to actually look at and flip through and see the photographs. You know, you may have a courthouse, like a couple that I know, where, you know, finding some place to play a video, unless it's on your laptop, can be a little bit of a pain in the rear, particularly if it's a last minute type hearing. So, you need to think about that. Do you want to impeach or do you want to use it in the case-in-chief? Do you want the lie? Do you want the admission? You know, yes, if you've caught them, like you've caught Mr. Williams, you can catch them in a lie. But sometimes if you can try to use that to get an admission, you might get more evidence. For instance, if I ask the question, "Mr. Johnson, last Tuesday, the fourth, when you went down to the coffee shop there in Dallas and you were wearing a blue suit with a white shirt and you had that red kind of goofy-looking tie on and you ordered the caramel macchiato and you had that file that said Coca-Cola secret recipe and you handed it to the gentleman in the blue sweater with the evil grin, do you remember that day, Mr. Johnson?" Well, what have I done? I've signaled to him that I know, number one. Number two, he's got to make a decision on the stand to either perjure himself or not. And number three, whatever he answers, the next question I want answered, whether I know what that answer is or not, tell me about all the other times you met with Mr. Smith. And how many times was that? What else did you give him? And so there is some strategy here when you're using investigators. How to use this stuff whether it's in a hearing or in a deposition or a trial to extricate not just one admission, but maybe several others that you didn't really know existed? So, it's a good idea to think about this, whether that's a deposition or whether it's trial or wherever else you're going to use it, just kind of think about how to use these things and how you actually want to get that information in. Again, I find that the video is less important than the testimony. Most courts are going to want to hear from the investigator or want to hear from the party if he makes a straight admission that he did do what you accuse him of. So, many times that's a better route than any way else. I would just say, as a whole, if you can get the individual to fall on his own sort as opposed to put your investigator up for cross-examination, you are in a stronger position. All right, I hope this has helped you out a little bit going over these rules. Now, we have a part two that will start here in a little bit. I hope that you join us for that other part two, because we will talk about how some of these rules now replicate to some of these newer technologies that are out there. But these recording and video rules are critical in almost any litigation that you do and something you should really think about when you're doing these type of investigations. I hope you had good time. My name's Wes Bearden. Thank you for listening.

Presenter(s)

WBJ
Wes Bearden, JD
CEO and Attorney
Bearden Investigative Agency, Inc.

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                                                                        December 31, 2026 at 11:59PM HST

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                                                                            September 26, 2024 at 11:59PM HST

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                                                                                December 31, 2025 at 11:59PM HST

                                                                                Status
                                                                                Approved
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                                                                                September 26, 2024 at 11:59PM HST

                                                                                Status
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                                                                                Credits
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                                                                                January 16, 2025 at 11:59PM HST

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                                                                                  September 26, 2024 at 11:59PM HST

                                                                                  Status
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                                                                                  Credits
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                                                                                  September 26, 2024 at 11:59PM HST

                                                                                  Status
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                                                                                  Available until
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                                                                                  Pending
                                                                                  Credits
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                                                                                    Not Offered
                                                                                    Credits
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                                                                                      Not Offered
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                                                                                            Not Offered
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                                                                                              Pending
                                                                                              Credits
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                                                                                              Pending
                                                                                              Credits
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                                                                                                Not Offered
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                                                                                                September 26, 2024 at 11:59PM HST

                                                                                                Status
                                                                                                Approved
                                                                                                Credits
                                                                                                  Available until
                                                                                                  Status
                                                                                                  Not Offered
                                                                                                  Credits
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                                                                                                  September 26, 2024 at 11:59PM HST

                                                                                                  Status
                                                                                                  Available
                                                                                                  Credits
                                                                                                    Available until
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                                                                                                    Credits
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                                                                                                      Status
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                                                                                                      Credits
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