H.B. 3028 on Recordings: Good or Bad for Arizonans’ Interests?

By Sarah Wastek. 

In January 2024, during her run for Senate, Kari Lake leaked a recording of a conversation she had with Arizona GOP Chairman Jeff DeWit. In the recording, DeWit hints that certain powerful people do not want Lake to continue her run for Senate. He begins to ask, “Is there a number at which” before Lake interjects and inquires, “I can be bought?” 

This is just one example of the power of a one-party consent recording law. Arizona is one of 38 states, along with the District of Columbia, that only require one party to consent to an audio recording. Most one-party consent laws require that in order to record a conversation, you must be (1) one of the parties participating in the conversation and (2) present during the conversation or (3) a party participating in the conversation consents to the recording. 

However, Arizona’s newly proposed bill, H.B. 2038, would require all parties to a conversation to consent to a recording. Otherwise, someone who records the conversation could be guilty of a class 5 felony. Eleven states, including California, already have two-party consent laws. While it’s not a new concept, is this the best law for Arizonans? 

Privacy Interests vs. Access to Information 

Most of us do not want to be recorded unknowingly or without our consent. One reason some states require all-party consent for recordings is that states value privacy rights differently. But, arguably, there are important reasons to allow one-party consent recordings, especially when it comes to government actors.

Kari Lake’s situation nicely demonstrates the divide on this issue. During her most recent Arizona GOP speech, Lake was heavily booed. Many Republican attendees expressed frustration with her secret tactics, one even saying “I don’t trust her — I am done.” Others in the press, albeit mostly from the Democratic Party, supported her release of the tape and applauded her exposure of government corruption. 

Incidents in Other States

Similar situations have recently occurred in other states, such as California and Oklahoma. 

In California in October 2021, audio recordings of former Council President Nury Martinez, a top Latina labor leader, and two Latino council colleagues were posted on social media. The recordings featured the group making racist and inappropriate remarks about Black, Indigenous, Armenian, Jewish, and gay people in the city, including some fellow city council members. Unsurprisingly, the release of the recording led to immense uproar demanding their resignations. President Biden even called for Martinez to step down.

In 2023 in McCurtain County, Oklahoma, a newspaper released recordings of an alleged conversation between several county officials discussing hateful comments about Black people and a plot to kill a reporter. These officials were similarly asked to resign, and two did.

DeWit’s Resignation

DeWit’s departure is the most recent resignation spurred on by the release of audio recordings. DeWit claims he resigned because Lake threatened to release a more incriminating recording. Whether or not this is true, there is no doubt that Lake’s release of the recording played a large role in DeWit’s eventual decision to resign. 

Exposing alleged corruption in our government seems like a noble cause. But where do we draw the line with this vigilante journalism that circumvents the usual processes for removing officials? 

H.B. 2038: Good or Bad? Time Will Tell

If every party in a conversation has to consent to a recording, it’s unlikely that incriminating recordings will be as easy to come by, at least not legally. The threat of a felony is probably strong enough to deter most information activists from running rampant with non-consensual recordings. But do we want this information to stay behind closed doors?

Many support the release of recordings for the public good in situations like those in Oklahoma, California, and Arizona. They harken back to the journalistic justice of Watergate. But with deepfakes becoming a more prominent evidentiary issue in the courts, some might argue that these recordings lead to end runs around proper democratic processes to kick someone out of office.

Balancing individual privacy interests with the public’s right to make fully informed voting decisions presents a difficult challenge. Arizona’s legislators have yet to take clear stances on H.B. 2038, but this may change as the election season picks up. 

Until then, one thing is for certain: be careful what you say and whom you say it to.