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From my understanding, hearing aids work the following way:

  1. a microphone picks up nearby sounds
  2. a miniature computer stores the sound data in ram and processes the sound
  3. the processed sound is then sent to the amplifier, then to the speaker, then to the ear

However, I thought that the first 2 steps would be considered illegal in general, for e.g. digitally recording a conversation without consent of the other party.

So I was wondering how hearing aids became legal for everyday use. For example, is it that:

  1. hearing aids were added as a special exemption to the law? If so, what was the legal process/history behind getting this approved?
  2. the way hearing aids process the sound makes it legal (like perhaps not storing any audio data to any disk)? If so, what are the exact details of this?
  3. people with disability are allowed to digitally record audio without the other consent? So even though hearing aids are illegal, the people with difficult hearing can still use them?

edit: I'm specifically asking about the U.S. in general, but am also curious about how laws outside of U.S. interpret this as well

Michael
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user3667125
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    You'll have to specify a jurisdiction to get a complete answer. That said, legal systems usually look at the overall effect of a process or action, rather than the specific details of its implementation. The purpose of laws on recordings is to forbid making recordings that can be played back at a (macroscopically) later time. Hearing aids can't do that; if they do in fact play back their "recording" at a later time, that time is on the order of milliseconds, not on human time scales. – Nate Eldredge Mar 01 '22 at 07:35
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    @NateEldredge It would be quite conceivable to have hearing aids that record sound, pick out two or more voices, and play them back separately (very useful for a person whose ears cannot handle two people speaking at the same time). Still, that would be on the order of seconds. And you could of course have hearing aids that can work as a recording device, and that would probably require the same permission as any recording device. – gnasher729 Mar 01 '22 at 08:58
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    Your description is true of modern hearing aids. Traditional designs are analogue, with a microphone, filters (like an equaliser on a hifi) and an amplifier. They lack any hint of storage capability. That's what was likely current when laws on recording were written, so they were irrelevant because they couldn't record. (NB there were some neck-worn hearing amplifiers that could record to cassette tapes - my grandfather had one around 1990, but the typical hearing aids prescribed by an audiologist were far too small for the recording tech of the day) – Chris H Mar 01 '22 at 16:07
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    computer stores the sound data in ram - is that a recording? – Mazura Mar 01 '22 at 19:30
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    Note that one of the key design points of hearing aids is that the wearer doesn't experience a perceptible delay in hearing sounds (they would be a safety hazard otherwise). Input and output are as close to simultaneous as possible and there's no persistent data storage, so it's hard to call that process "recording". There might be some incidental storage as part of the digitization process, but that's not really different than a telephone momentarily storing audio as an electric charge traveling across a wire. – bta Mar 01 '22 at 20:01
  • Tangentially, Canadian court had ruled that web caches are not possession for the purpose of e.g. child porn offences, even though technically it is downloaded illegal material to your computer (a new offence of accessing child porn is promptly created by legislators, of course). – xngtng Mar 01 '22 at 20:58
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    Assuming that's how they work, I would easily argue that storing in ram does not constitute recording. Also some other problems are that the microphone does not perform a function superior to that of a functioning ear; ie. it cannot pick up super quiet sounds or from longer distances than you would be able to hear with your ear, probably even less effective than an ear. Another thing is that the 'recording' is listened to immediately, and the recording destroyed. So since it only exists for a fraction of a second, is it really a recording? – Aequitas Mar 02 '22 at 02:13
  • @ChrisH What I described is something that hearing aids don't do currently. Imagine three people nearby arguing, and I can't make out what they are saying. Normal hearing aids make this a bit clearer, but it's still three people talking on top of each other. But my hearing aids record everything, then extract and play back speaker 1, I press a button and they extract and play back speaker 2, I press another button and they extract amd play back speaker 3. – gnasher729 Mar 02 '22 at 09:46
  • @gnasher729 that's an interesting concept. Modern ones could fit enough storage in a small unit, but the signal-processing to separate speakers is quite hard. If I was designing it, from a technical point of view, I'd allow storage to be downloaded and do the signal-processing on something with a more powerful processor. That of course would mean not only internal/incidental storage but accessible storage. But my description was meant to be more a point of technical history about how we got to where we are now, rather than an exploration of possibly illegal devices – Chris H Mar 02 '22 at 09:54
  • Old hearing aids didn't have microprocessors in them - they were really just a microphone and an amplifier, and so didn't record anything. The use of digital systems (mostly "DSP" rather than traditional computing) makes them work better, hence their use. In terms of "recording", they really only use the recording long enough to play it into the amplifier, so it's very short lived and no history is kept. This obviously differs from record-and-keep-forever type systems, both in intent and implementation. – Ralph Bolton Mar 02 '22 at 11:37
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    If it's not stored, it's not a recording, and working memory is not storage. – Davor Mar 02 '22 at 13:01
  • You can record any conversation you are a part of where I'm from. Is this any different in the OPs jurisdiction? – Neil Meyer Mar 02 '22 at 18:59
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    In copyright law (i know its not the same), "recordings" are such only when content is permanently fixed into media. There's no permanence here. It seems that a concept of permanence is at least implied when surveillance is concerned. –  Mar 02 '22 at 20:07
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    for history, look up early non-skip CD players and how they technically violated the law at the time because they did make a buffered copy of the digital music in memory, but the music industry did not pursue because it was in their interest to allow it, as well as the CableVision decision over early DVRs. Laws have since changed to allow format shifting and temporary storage. – simpleuser Mar 02 '22 at 21:19
  • @Davor The advent of NVDIMMs running close to the speed of traditional memory will blur the distinction of working memory that is non-persistent storage. – doneal24 Mar 02 '22 at 22:38
  • @NeilMeyer Multiple jurisdictions in the US prohibit recording conversations without the explicit permission of both parties. This did come up in respect to Monica Lewinsky / Linda Tripp as one party was in Maryland. Tripp was indicted on wiretapping charges. – doneal24 Mar 02 '22 at 22:42
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    What is the sound of a tree falling in the woods with no one to hear it? Is it a recording if no playback is physically possible? Is it a recording of a conversation if the amount of audio ever in memory is less than a millisecond? I can't see why this question does not have a negative rating. – George White Aug 17 '22 at 21:43
  • @GeorgeWhite The question is perfectly fine. So you have the strong opinion that it is legal. You can turn that into an answer. I can look a bit further into the future and see useful applications for hearing aids with more recording capability - which eventually might cross a legal line. Some of this is quite doable. For example your phone rings. Your hearing aids play the ringtone but record the incoming sound. You reject the call, and your hearing aids play the recording at 120% speed until you catch up. – gnasher729 Aug 18 '22 at 16:42

3 Answers3

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California penal code section 632, which prohibits electronic eavesdropping and recording, provides:

(f) This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.

Sneftel
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  • Does that actually mean that a person without impaired hearing cannot legally use a hearing aid? – quarague Mar 01 '22 at 12:23
  • Unless they specifically define "impaired", just about everyone is hearing impaired to some degree. – jwh20 Mar 01 '22 at 14:42
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    And presumably somewhere else in that statute is a definition of the term "hearing aid" which must certainly restrict such devices to being non-recording devices. Grandpa's hearing aid, for example, doesn't normally have record and playback functionality - it just amplifies what's happening in the present. Adding such recording functionality would certainly disqualify the device from being considered a "hearing aid". – J... Mar 01 '22 at 16:45
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    For anyone curious, here is the definition of hearing aid, although it seems very vague: “Hearing aid” means any wearable instrument or device designed for, or offered for the purpose of, aiding or compensating for impaired human hearing. https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=BPC&division=2.&title=&part=&chapter=5.3.&article=8. – user3667125 Mar 01 '22 at 18:37
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    @quarague Only if you're using them record a private conversation without permission or to enhance your hearing beyond that of a normal person in order to eavesdrop on a private conversation. – user3067860 Mar 01 '22 at 19:50
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    @user3067860 Grey area, I think. My granddad is always complaining about his hearing aids because "you can hear a mosquito taking a sh"t at a hundred yards with that f"n thing!" I think that qualifies as "beyond normal hearing". – J... Mar 01 '22 at 19:56
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    I suspect that anyone trying to use this vagueness to record conversations with a "hearing aid" would face scrutiny in court. Hearing aids are often expensive to begin with. Adding meaningful amounts of storage would only increase that cost. If someone successfully used such a loophole in court, I'm sure legislators in that jurisdiction would rush to tighten the definition. Politicians like to know when they're being recorded. – Kyle A Mar 01 '22 at 19:58
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    "which prohibits electronic eavesdropping and recording" --> perhaps form a wax cylinder to avoid the electronic part. – chux - Reinstate Monica Mar 01 '22 at 22:12
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    @KyleA You wouldn’t need storage, just Bluetooth. The BLE headset I use with my cellphone is not much bigger than a pair of hearing aids, and can trivially record audio by sending it to my phone (or, for that matter, function as a sub-par pair of hearing aids without even needing the phone). – Austin Hemmelgarn Mar 01 '22 at 22:52
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    In all my years of wearing custom hearing aids, I have never noticed a delay between the start of the sound and the sound coming out of the hearing aid. Most of the custom hearing aids use electronic processors to compensate or enhance for the User. Generally, they don't have enough memory on them to store full conversations or enough to repeat back. The hearing aid may store sound in order to help eliminate noise or spikes, often called filtering. For recording conversations, there are cheaper means, such as digital voice recorders. – Thomas Matthews Mar 02 '22 at 02:26
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    @J... Grandddad may have been exaggerating. – Barmar Mar 02 '22 at 15:24
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    @Barmar Yes, I congratulate you on your perspicacity, sir! – J... Mar 02 '22 at 15:33
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    In the past this was probably very cut and dry but it's actually super interesting because now I know people with advanced hearing aid functionality. For some modern models you can actually listen to music through your hearing aids. I also know someone who has a discreet pen mic for a hearing aid that he can lay on a table to help improve audio pickup. They are all still hearing aids, I'm assuming prescribed by a doctor. But definitely more functionality than they used to have. – Wayne Werner Mar 02 '22 at 17:46
  • @AustinHemmelgarn, That is true, but if this question came up in court, I suspect the lawyers would then argue that the recording device was the one connected by bluetooth, not the hearing aids themselves. In which case, the recording would not be protected by the hearing aid clause. Of course this is speculation until something like this comes to court. – Kyle A Mar 02 '22 at 23:58
  • @Barmar J...'s Grandad may also have been living up the Grandad stereotype, but they can be extremely sensitive. Helping a relative with hers, while standing next to her some sounds were louder from her hearing aids than directly to my ears – Chris H Mar 03 '22 at 15:32
  • @ThomasMatthews that's part of the design criteria. Any delay must be imperceptible. It was non-existent in analogue ones, digital models use dedicated signal-processing chips rather than using general-purpose processors, for faster processing at low clock rates and power consumption. There will be a time delay but I'd expect it to be less than 1/10 the human response time, probably much less – Chris H Mar 03 '22 at 15:35
  • @quarague No. Because you can use the hearing aid "for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear." – kisspuska Aug 18 '22 at 02:26
  • @jwh20 this will be a question of fact, that is one to be decided by a jury if there is an admissible declaration asserting to hearing impairment despite an absence of diagnosis. (If there is diagnosis, that is probably a matter of law: The judge will deem the individual hearing impaired for the purposes of § 632, et seq.) – kisspuska Aug 18 '22 at 02:27
  • @J... There is no "definition" somewhere, the statute is sufficiently clear, it exempts the use of the hearing aid "for the purpose of overcoming the impairment". – kisspuska Aug 18 '22 at 02:28
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    @user3667125 That is not the definition for the purposes of the § 632, et seq., or CIPA (California Invasion of Privacy Act), but for the purposes of Business and Professions Code. It might be used as context in case of ambiguity, but so far no one in this thread managed to state a single point of ambiguity. The hearing aid may be used "for the purpose of overcoming the impairment". – kisspuska Aug 18 '22 at 02:30
  • @user3067860 concurring with your reply to quarague. Such use would clearly be contrary to the spirit of the act, and to the legislative intent. Specifically, “for purposes of section 632, the privacy rights affected are the same regardless whether a conversation is secretly recorded by a machine or monitored by a human being." (Kight v. Cashcall, Inc. (2012) 200 Cal.App.4th 1377, 1393) “A person wishing to listen in on a conversation without violating [CIPA] can provide notice by … announcing to [all] parties [that it] is … monitored.” (Air Trans. Ass'n v. P.U.C. of Cal.(9th Cir.1987)833 F.2d – kisspuska Aug 18 '22 at 02:35
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    @KyleA the "hearing aid clause" only protects the use of a hearing aid inline with the purpose of the exemption set forth therein: To enable its user to overcome the hearing impairment -- look at the above comments. It would be quite a stretch to argue the recording was necessary to the hearing – kisspuska Aug 18 '22 at 02:40
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am also curious about how laws outside of U.S. interpret this as well

In the UK it is legal to make recordings for personal use.

According to the Regulation of Investigatory Powers Act 2000 (RIPA), recording conversations without consent in the UK is legal provided the recording is done for personal use; this includes telephone conversations.

You just can't publish them or share them with others:

However, problems can arise when such recorded conversations are shared with third parties without the consent of the participants of the conversation. It is an offence to sell recorded conversations to third parties or make such conversations public without the participant’s consent in the conversation.

Source: https://recordinglaw.com/recording-laws-uk/

RedGrittyBrick
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RAM is what's known as "volatile" memory. It decays very quickly. When you keep data in memory, your computer is actually constantly copying the data back into memory to keep it from disappearing. So this is not putting the data in any permanent fixed medium.

An argument could probably also be made that the ADA (Americans with Disability Act) takes priority over any state law that impairs anyone in mitigating their disability without a compelling state interest.

Acccumulation
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    Has such an argument been made? – T.J.L. Mar 02 '22 at 19:49
  • @T.J.L. I've never heard of any court holding that using a hearing aid constitutes illegal recording. It isn't something that the vast majority of lawyers would even think to argue. – ohwilleke Mar 02 '22 at 22:59
  • @T.J.L. : Not only has such an argument been made, it's codified in Dutch law. That does not restrict itself to RAM specifically, it includes all kinds of caches and processing buffers. There's an additional exception for the legally blind, where accessible copies do not have to be temporary in nature. It would be easy to argue in court that new technology benefitting the deaf should be treated along the same lines. – MSalters Mar 03 '22 at 08:57
  • @MSalters I was attempting to (perhaps too subtly) prompt the author to improve the answer. The first paragraph doesn't address the question, and the second leads with "could probably". – T.J.L. Mar 03 '22 at 13:07
  • -1 The first paragraph might be relevant to the question, but needs more details. The second paragraph needs more details, period. What state? Indeed, what country? What is this “ADA”? Presumably it is the Americans with Disabilities Act, but the answer should clarify this. – Brian Drake Aug 09 '22 at 11:36
  • @BrianDrake What more details need to be made. The ADA is a US federal law. It is not state-dependent. The question specified US, so complaining about me not specifying a country is rather odd. And the ADA is the most famous US law on disabilities, so asking for it to be clarified is also a bit odd. – Acccumulation Aug 17 '22 at 21:33
  • For purposes of copyright, I think loading software from hard drive into RAM counts as copying. – gnasher729 Aug 18 '22 at 05:51