Civil & Criminal Liability for Audio Video Recordings
The following is a guest blog post by Randolf H. Wolf. The views expressed are the opinions of the author and do not reflect those of the Law Office of James Alston.
If you plan to secretly record someone, either by audio or video, you should be aware that there are federal and state laws that may limit your ability to do so. These laws may not only expose you to the risk of criminal prosecution, they also may give the person being recorded a civil claim for money damages.
Audio recordings will be treated under regular wiretapping laws. Federal law allows the recording of an oral communication with the consent of at least one party to the conversation. A majority of the states (38 states and the District of Columbia) have adopted wiretapping statutes based on the federal law. These laws are referred to as “one-party consent” statutes. Under these statutes, a party to a conversation can legally record it. Although these statutes require only one party to consent to the recording of a conversation, they explicitly do not protect recordings that are done for a “criminal or tortious purpose.”
Twelve states require the consent of all parties to a conversation to record it. These laws are referred to as “all-party consent” statutes. Those jurisdictions include: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Thus, if the person being recorded did not consent, the recording would violate the laws of those twelve states.
With respect to video recordings, the laws of 13 states expressly prohibit the unauthorized installation or use of cameras in private places. In Alabama, Arkansas, California, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, New Hampshire, South Dakota and Utah, installation or use of any device for photographing, observing or overhearing events or sounds in a private place without the permission of the people recorded or observed is against the law. A private place is one where a person may reasonably expect to be safe from unauthorized surveillance. Generally speaking, if a defendant intruded into someone’s seclusion in a place they expect privacy (e.g., a bathroom or their bedroom) this element will be met.
The law provides the “most heightened” protection to the privacy interests of individuals in their home. Thus, filming an individual in their home is a risky venture. The fact that the recording took place in a common area, such as a living room, might negate any reasonable expectation of privacy, however. With respect to the videotape of an individual in a motor vehicle, on the other hand, a court would most likely find that the individual did not have a reasonable expectation of privacy, so long as the vehicle was not located in a secluded location that was not in public view when the recording took place
Several states have laws prohibiting the use of hidden cameras only in certain circumstances, such as in locker rooms or restrooms, or for the purpose of viewing a person in a state of partial or full nudity. For example, it is illegal in Illinois to “videotape, photograph, or film” people without their consent in “a restroom, tanning bed, or tanning salon, locker room, changing room or hotel bedroom.” The federal government does not have a hidden camera law.
In addition to constituting a criminal offense, the distribution or dissemination of a recording may open the door to various civil actions, such as invasion of privacy, publication of private facts, and intrusion. The recognition of these causes of action varies widely by state. Thus, individuals should check applicable law before releasing a recording.