Summer 2012Reporter’sRecordingGuide A state-by-state guide to taping phone calls and in-person conversations
Introduction  At first, the question of whether or not to tape record            At least 24 states have laws outlawing ce...
Tape-recording laws at a glance                                                         Are there                         ...
State-by-state guideAlabama                                             tape-recorded conversation with a source          ...
information obtained through these meth-        one party to the conversation. Further, the         Electronic communicati...
graph, in print or electronic — that include      signals, writing, images, sounds, data or          the person recording ...
familial activity.” Cal. Civil Code § 1708.8.     an assault or trespassing to capture a visual    telephone, however, is ...
tions. However, there is some conflict in           Hidden cameras: The state’s privacy stat-         hibits the disclosur...
imposes several rules governing the conduct      no more than $10,000 or imprisonment for          alties exist for such i...
residents or the words of any intercepted           to the recording. Ga. Code Ann. § 16-11-         phone or other electr...
or has received prior consent from one of        part of any” oral conversation. 720 Ill. Com-      tion one knows or shou...
Iowa                                               eavesdropping statute, a person may record        one year in jail and ...
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press
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State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press

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State-by-State Guide to Laws on Taping Phone Calls and Conversations, by Reporters Committee for Freedom of the Press

  1. 1. Summer 2012Reporter’sRecordingGuide A state-by-state guide to taping phone calls and in-person conversations
  2. 2. Introduction At first, the question of whether or not to tape record At least 24 states have laws outlawing certain uses of hid-a phone call seems like a matter of personal preference. den cameras in private places, although many of the lawsSome journalists see taping as an indispensable tool, while are specifically limited to attempts to record nudity. Also,others don’t like the formality it may impose during an many of the statutes concern unattended hidden cameras,interview. Some would not consider taping a call without not cameras hidden on a person engaged in a conversa-the subject’s consent, others do it routinely. tion. Journalists should be aware, however, that the audio However, there are important questions of law that must portion of a videotape will be treated under the regularbe addressed first. Both federal and state statutes govern wiretapping laws in any state. And regardless of whetherthe use of electronic recording equipment. The unlawful a state has a criminal law regarding cameras, undercoveruse of such equipment can give rise not only to a civil suit recording in a private place can prompt civil lawsuits forby the “injured” party, but also criminal prosecution. invasion of privacy. Accordingly, it is critical that journalists know the stat- This guide provides a quick reference to the specificutes that apply and what their rights and responsibilities provisions of each jurisdiction’s wiretap law. It outlinesare when recording and disclosing communications. whether one-party or all-party consent is required to per- Although most of these statutes address wiretapping and mit recording of a conversation, and provides the legaleavesdropping — listening in on conversations of others citations for wiretap statutes. Some references to case lawwithout their knowledge — they usually apply to electronic have been provided in instances where courts have pro-recording of any conversations, including phone calls and vided further guidance on the law. Penalties for violationsin-person interviews. of the law are described, including criminal penalties (jail Federal law allows recording of phone calls and other and fines) and civil damages (money that a court may orderelectronic communications with the consent of at least one the violator to pay to the subject of the taping). Instancesparty to the call. A majority of the states and territories where the law specifically includes cellular calls and thehave adopted wiretapping statutes based on the federal wireless portion of cordless phone calls also are noted, butlaw, although most also have extended the law to cover in- many laws are purposely broad enough to encompass suchperson conversations. Thirty-eight states and the District calls without specifically mentioning them.of Columbia permit individuals to record conversations to Sidebar articles throughout the guide address specificwhich they are a party without informing the other parties issues related to taping. Note that these are general discus-that they are doing so. These laws are referred to as “one- sions, and you will have to consult the state entries to seeparty consent” statutes, and as long as you are a party to how these issues apply in particular states.the conversation, it is legal for you to record it. (Nevadaalso has a one-party consent statute, but the state SupremeCourt has interpreted it as an all-party rule.) Important notice Twelve states require, under most circumstances, the This guide is meant as a general introduction forconsent of all parties to a conversation. Those jurisdic- journalists to the state of the law concerning electronictions are California, Connecticut, Florida, Illinois, Mary- recording and its implications. It does not take the placeland, Massachusetts, Michigan, Montana, Nevada, New of legal advice from a lawyer in your state when you areHampshire, Pennsylvania and Washington. Be aware that confronted with a legal problem. Journalists who haveyou will sometimes hear these referred to inaccurately additional questions or who need to find a lawyer canas “two-party consent” laws. If there are more than two contact the Reporters Committee at (800) 336-4243.people involved in the conversation, all must consent to Because this guide was written with the needs ofthe taping. journalists in mind, it does not address all aspects of Regardless of the state, it is almost always illegal to record electronic recording laws, including the issues of tapinga conversation to which you are not a party, do not have family members’ calls and using a tape recording as evi-consent to tape, and could not naturally overhear. dence in a lawsuit or prosecution. Non-journalists who Federal law and most state laws also make it illegal to dis- have questions about taping should contact an attorneyclose the contents of an illegally intercepted call or com- in their state.munication.This guide was researched and written by McCormick Legal Fellow Kristen Rasmussen, Ethics and Excellence in JournalismLegal Fellow Jack Komperda and legal intern Raymond Baldino. They built on the work of legal fellows and interns who con-tributed to previous editions. Funding for this publication provided by the MoCormick Foundation. © 2012 by The ReportersCommittee for Freedom of the Press, 1101 Wilson Blvd., Suite 1100, Arlington, Va. 22209.2 The Reporters Committee for Freedom of the Press
  3. 3. Tape-recording laws at a glance Are there additional Is there a penalties for Is consent of Are there Does the specific disclosing or all parties criminal statute allow hidden publishing required? penalties? for civil suits? camera law? information?Federal ✓ ✓ ✓Alabama ✓ ✓ ✓Alaska ✓ ✓ ✓Arizona ✓ ✓ ✓ ✓Arkansas ✓ ✓ ✓California ✓ ✓ ✓ ✓ ✓Colorado ✓ ✓ ✓Connecticut ✓ ✓ ✓ ✓ ✓Delaware ✓ ✓ ✓ ✓District of Columbia ✓ ✓ ✓ ✓Florida ✓ ✓ ✓ ✓ ✓Georgia ✓ ✓ ✓Hawaii ✓ ✓ ✓ ✓Idaho ✓ ✓ ✓ ✓Illinois ✓ ✓ ✓ ✓ ✓Indiana ✓ ✓ ✓ ✓Iowa ✓ ✓ ✓ ✓Kansas ✓ ✓ ✓ ✓Kentucky ✓ ✓ ✓Louisiana ✓ ✓ ✓ ✓Maine ✓ ✓ ✓ ✓Maryland ✓ ✓ ✓ ✓ ✓Massachusetts ✓ ✓ ✓ ✓ ✓Michigan ✓ ✓ ✓ ✓ ✓Minnesota ✓ ✓ ✓ ✓Mississippi ✓ ✓ ✓ ✓Missouri ✓ ✓ ✓ ✓Montana ✓ ✓ ✓ Nebraska ✓ ✓ ✓ ✓Nevada ✓ ✓ ✓ ✓ ✓New Hampshire ✓ ✓ ✓ ✓ ✓New Jersey ✓ ✓ ✓ ✓New Mexico ✓ ✓ ✓ ✓New York ✓ ✓ ✓North Carolina ✓ ✓ ✓ ✓North Dakota ✓ ✓ ✓Ohio ✓ ✓ ✓ ✓Oklahoma ✓ ✓ ✓Oregon ✓ ✓ ✓ ✓Pennsylvania ✓ ✓ ✓ ✓ ✓Rhode Island ✓ ✓ ✓ ✓South Carolina ✓ ✓ ✓ ✓South Dakota ✓ ✓ Tennessee ✓ ✓ ✓ ✓Texas ✓ ✓ ✓ ✓Utah ✓ ✓ ✓ ✓Vermont ✓ Virginia ✓ ✓ ✓ ✓Washington ✓ ✓ ✓ ✓ West Virginia ✓ ✓ ✓ ✓Wisconsin ✓ ✓ ✓ ✓Wyoming ✓ ✓ ✓ ✓Reporter’s Recording Guide 3
  4. 4. State-by-state guideAlabama tape-recorded conversation with a source Hidden cameras: Intentionally engaging Summary of statute(s): Alabama law sets would be permissible. However, there is no in secret observation or photography whilecriminal penalties for recording or disclos- need to obtain consent to record conversa- trespassing on private property is consid-ing private communication of others with- tions held in public places, where there is no ered unlawful “criminal surveillance.” Ala.out the consent of at least one of the per- reasonable expectation of privacy. See defini- Code § 13A-11-32. The law, however, doessons involved. The statute also bans secret tion of “private place,” Ala. Code § 13A-11- not criminalize the use of any such record-observations while trespassing on private 30(2). ing devices positioned in areas to which theproperty. Those divulging illegally obtained Electronic communications: Alabama’s public has access (i.e., filming conversationscommunications also face criminal penalties. criminal eavesdropping law prohibits the on public streets or a hotel lobby). In-person conversations: The consent use of “any device” to overhear or record Criminal penalties: Unlawful eavesdrop-of at least one party to a communication is communications without the consent of at ping is a misdemeanor carrying a maximumneeded to record a private conversation. Ala. least one party engaged in the communica- penalty of one year in jail. Ala. Code § 13A-Code §13A-11-30. This means a reporter’s tion being recorded. Ala. Code §13A-11-31. 5-7. Criminal surveillance and disclosing Consent and its limits Generally, you may record, film, broad- the taping illegal under the wiretap act, the Appeals in Richmond (4th Cir.) ruled in cast or amplify any conversation where court held. Because the employees “pro- October 1999 that ABC reporters—again all the parties to it consent. It is always duced no probative evidence that ABC had with “Primetime Live”—who obtained jobs legal to tape or film a face-to-face inter- an illegal or tortious purpose” when it made with a Food Lion grocery store and there- view when your recorder or camera is in the tape, the reporter did not violate the fore had legal permission to be in nonpublic plain view. The consent of all parties is federal statute. (Sussman v. American Broad- areas of the store nonetheless exceeded the presumed in these instances. casting Co.) scope of that permission by using hidden The use of hidden cameras is only In another case, an ophthalmologist who cameras on the job. Food Lion had not con- covered by the wiretap and eavesdrop- agreed to be interviewed for “Primetime sented to their presence for the purpose of ping laws if the camera also records an Live” sued ABC under the federal wiretap- recording footage that would be televised, audio track. However, a number of states ping statute for videotaping consultations the court held, and therefore the reporters’ have adopted laws specifically banning between the doctor and individuals posing presence in the nonpublic areas constituted the use of video and still cameras where as patients who were equipped with hid- trespass. the subject has an expectation of privacy den cameras. The U.S. Court of Appeals However, Food Lion could not prove although some of the laws are much more in Chicago (7th Cir.) rejected the doctor’s it was damaged by the trespass, the court specific. Maryland’s law, for example, bans wiretapping claim because the federal stat- found. Damage to its reputation caused the use of hidden cameras in bathrooms ute requires only one-party consent, and by the resulting story was due to the facts and dressing rooms. the undercover patients had consented to reported in the story that alarmed consum- Whether using an audiotape recorder the taping. The court further held that the ers, not due to the trespass, the court held. or a hidden camera, journalists need to network did not send the testers o the doc- As a result, Food Lion was only able to know about the limits to their use. tor for the purpose of defaming the doctor, recover nominal damages of one dollar for Criminal purpose. Federal law and that therefore ABC did not engage in the trespass claim. (Food Lion Inc. v. Capital requires only one-party consent to the the taping for a criminal or tortious purpose. Cities/ABC Inc.) recording and disclosure of a telephone (Desnick v. ABC) Expectations of privacy. The other issue conversation, but explicitly does not pro- These cases make two points journalists that courts address in evaluating these cases tect the taping if it is done for a criminal should remember when they think about is whether or not the plaintiffs had a reason- or tortious purpose. Many states have taping a conversation: consent requirements able expectation of privacy in the area where similar exceptions. Employees of a “psy- under state and federal laws must always be the filming took place. In Desnick, the court chic hotline” who were secretly recorded met, and even then taping can be illegal if it held that the doctor did not have such an by an undercover reporter working for is done in furtherance of a crime. expectation of privacy in an area where he “Primetime Live” sued ABC for viola- Trespass. A party whose conversation brought his patients. tion of the federal wiretapping statute, is surreptitiously recorded, whether with a A medical testing lab in Arizona sued ABC arguing that the taping was done for tape recorder or a hidden camera, may also over another “Primetime Live” segment, the illegal purposes of invading the raise such newsgathering claims as trespass which focused on error rates among labora- employees’ privacy. The federal appel- and intrusion, examining the issue of the tories that analyze women’s Pap smears for late court in Pasadena (9th Cir.) affirmed scope of a party’s consent. For example, in cancer. Producers from ABC posed as lab the dismissal of the employees’ claim in Desnick, the doctor sued the network for technicians and filmed the inside of the lab September 1999. According to the court, trespass because he did not know of the with a hidden camera. The U.S. Court of an otherwise legal taping that is done to taping. But the court stated that consent to Appeals in San Francisco (9th Cir.) dismissed achieve a “further impropriety, such as an entry is “often given legal effect” even the lab’s privacy claim. The undercover blackmail,” becomes a violation of the though the entrant “has intentions that if journalists filmed portions of the lab that law. But even if ABC’s means of taping known to the owner of the property would were open to the public and were escorted were illegal because the act violated the cause him ... to revoke his consent.” by the lab’s owners into a conference room. employee’s privacy, that does not make On the other hand, the U.S. Court of The court said the lab and its workers did4 The Reporters Committee for Freedom of the Press
  5. 5. information obtained through these meth- one party to the conversation. Further, the Electronic communications: Similarly,ods are misdemeanors carrying a maximum state criminalizes the disclosure of informa- using a device to record conversations overjail sentence of six months. Ala. Code § tion obtained without such consent. The electronic communications such as tele-13A-5-7. Installing an eavesdropping device state’s hidden camera law only applies to phones is allowed with the consent of aton private property is considered a felony taking nude or partially nude pictures of least one party to the conversation. Alaskaoffense carrying a prison sentence between subjects without their consent. Stat. Ann. § 42.20.310(b). That consentone and 10 years. Ala. Code § 13A-11-33. In-person conversations: A reporter may includes that of the reporter initiating such Disclosing recordings: A person cannot tape any in-person conversation with a sub- electronic communication. Because the pro-knowingly or recklessly divulge information ject, as the state requires the consent of just vision of the statute dealing with wirelessobtained through illegal eavesdropping or one party to the conversation. Alaska Stat. communications applies to “any transfer ofsurveillance. Ala. Code § 13A-11-35. Ann. § 42.20.310. The state’s highest court signs, signals, writing, images, sounds, data has long held that the eavesdropping statute or intelligence” of any nature, consent like-Alaska was intended to prohibit only third-party wise is required to disclose the contents of Summary of statute(s): Alaska’s eaves- interception of communications and thus text or e-mail messages sent between wire-dropping laws prohibit the use of any elec- doesn’t apply to a participant in a conversa- less devices. Alaska Stat. Ann. § 42.20.390.tronic devices to hear or record private tion. Palmer v. Alaska, 604 P.2d 1106 (Alaska Hidden cameras: The state law appliesconversations without the consent of at least 1979). only to images — whether film or photo-not have a reasonable expectation of pri- him, but failed to inform the homeowners police — even when they are thought tovacy, because the areas filmed were open to that the student was an employee of a tele- be in plain view — may carry the risk ofthe journalists, and none of the discussions vision station. The student surreptitiously arrest. For example, in Massachusetts, ancaught on tape were of a personal nature. videotaped the doctor’s treatment of the all-party consent state, individuals have(Medical Laboratory Management Consultants family cat in their home. The state Court of been arrested when using publicly vis-v. ABC, Inc.) Appeals upheld the trespass claim because, ible digital recording devices to record In yet another case against ABC, a court unlike cases where the taping took place in police. Massachusetts recording lawruled that police officers who were secretly an office, the family had a reasonable expec- makes any secretive recording unlaw-videotaped while they were searching a car tation of privacy in their home. (Copeland v. ful, and arrests have been made of thosedid not have a claim under New Jersey’s Hubbard Broadcasting, Inc.) recording the police with devices suchwiretapping law. The officers had no rea- But in Alvarado v. KOB-TV, the U.S. Court as cell phone cameras, under the argu-sonable expectation of privacy in a conver- of Appeals in Denver (10th Cir.) ruled that ment that these recordings were secre-sation that occurred in a car on the shoulder eporters did not intrude upon the seclusion tive. In 2007, Simon Glik was arrestedof a busy highway, the New Jersey appeals of undercover officers in filming them when under the Massachusetts wiretappingcourt ruled. Moreover, police officers have they came to the doors of their residences to law for openly recording with his cella diminished expectation of privacy because decline to talk to news media, because this phone what he believed to be an unlawfulthey hold a position of trust. Thus, the tap- conduct would not be highly offensive to a arrest on the Boston Common. Thoughing, done for a show on racial profiling, was “reasonable person.” the charges were dropped and the U.S.legal. (Hornberger v. ABC, Inc.) Journalists should be aware that privacy Court of Appeals in Boston (1st Cir.) In California, when conservative activ- standards vary state by state, and that these later affirmed Glik’s First Amendmentists James O’Keefe III and Hanna Giles cases serve as general examples to how states right to record police in public (Glik v.secretly recorded an ACORN employee in view reasonable expectations of privacy Cuniffe), recording in Massachusetts mayan ACORN office for the purpose of expose when taping. still carry risks.journalism, the Supreme Court of Califor- Other consent issues. The validity of Illinois is another all-party consentnia rejected a First Amendment challenge consent has also been upheld where the state whose broad eavesdropping stat-to the expectations of privacy standard cre- party was mistaken about the terms. In a ute might be used against journalistsated under California’s wiretapping statute. California case, a woman sued CBS for recording police activity with devicesUnder California law, tape recording can be trespass and intrusion when a camera crew in plain view. The state’s eavesdroppingfound unlawful when it violates “objectively accompanied a crisis intervention team into statute bans any taping without the con-reasonable expectations” that a conversation her home in response to a domestic violence sent of all parties, regardless of whetherwill not be recorded. Notably, the report- call. The woman conceded that she had con- there is an expectation of privacy. In aers had created the impression with the sented to the videotaping, but stated that she recent case, the American Civil Lib-ACORN employee whom they recorded was led to believe that the camera crew was erties Union of Illinois successfullythat they were seeking a confidential dis- affiliated with the district attorney’s office. challenged the law and won a decisioncussion. The court held that the privacy The court held that the state statutes gov- which halted the statute being appliedstandard of California’s wiretapping law did erning trespass and intrusion did not require against the ACLU’s recording of offi-not violate the First Amendment by work- that the individual’s consent be “knowing or cial police activity, when that policeing a chilling effect on expose journalism, meaningful,” even if the consent was “fraud- activity is audible and public. (ACLU v.as defendant O’Keefe argued. Instead, the ulently induced,” and that the camera crew Alvarez) However, the Illinois statute,court found O’Keefe and Giles could both had acted within the scope of the woman’s which the Alvarez court described asbe charged under the California wiretap- consent. (Baugh v. CBS) “the broadest of its kind,” has not beenping law for their surreptitious recording. In recent years the widespread availabil- overturned. The risk of being charged(Vera v. O’Keefe) ity of handheld cell phone cameras and under the statute may still exist for Filming individuals in their homes is other digital recording devices have tested reporters or citizen journalists whoalways a more risky venture. In a Minne- the limits of the freedom to tape when a record police activity in Illinois, evensota case, a veterinarian making a house call device is in plain view. Use of these devices when they use recording devices thatobtained permission to bring a student with by reporters or citizen journalists to record are in plain view.Reporter’s Recording Guide 5
  6. 6. graph, in print or electronic — that include signals, writing, images, sounds, data or the person recording is a party to the con-nudity. A person who views or produces a intelligence” of any nature, consent likewise versation or at least one of the parties haspicture of a nude or partially nude person is required to disclose the contents of text given consent. Ark. Code Ann. § 5-60-120.without consent commits the crime of or e-mail messages sent between wireless Arkansas law also criminalizes the “intercep-“indecent viewing or photography.” Alaska devices. Ariz. Rev. Stat. Ann. § 13-3001. tion” of a message transmitted by telephoneStat. Ann. § 11.61.123. Hidden cameras: It is unlawful for an in its public utility laws. Ark. Code Ann. § Criminal penalties: Violation of the individual to photograph, videotape or 23-17-107. However, the statute does noteavesdropping statute is a misdemeanor car- secretly view a person without consent while prohibit or restrict a Federal Communica-rying a penalty of up to a year in jail. Alaska the person is in a restroom, locker room, tions Commission licensed amateur radioStat. Ann. § 42.20.330. Additionally, those bathroom or bedroom or is undressed or operator or anyone operating a police scan-convicted of the statute face a fine of up to involved in sexual activity, unless the surveil- ner from intercepting a communication for$10,000. Alaska Stat. Ann. § 12.55.035. The lance is for security purposes and notice is pleasure. Ark. Code § 5-60-120(e).crime of indecent viewing or photography posted. Ariz. Rev. Stat. Ann. § 13-3019. Hidden cameras: The state’s video voy-is a misdemeanor if the subject viewed is an Criminal penalties: Intercepting the eurism laws prohibits the use of any cameraadult, and a felony if the subject is a minor. contents of any oral or electronic com- or “image recording device” to secretly viewAlaska Stat. Ann. § 11.61.123(f). munication without the consent of at least or videotape a person in any place where Disclosing recordings: A person who one party is a felony. Ariz. Rev. Stat. Ann. that person “is in a private area out of publicintercepts a private conversation cannot § 13-3005. Violation of the state’s hidden view, has a reasonable expectation of privacy,legally divulge or publish the information camera law is also a felony. Ariz. Rev. Stat. and has not consented to the observation.”without consent of at least one party. Alaska Ann. § 13-3019(D). Punishment can range Ark. Code Ann. § 5-16-101.Stat. Ann. § 42.20.300. Similarly, any private from court fines to sentences of anywhere Criminal penalties: Intercepting oral orcommunication a person knows or reason- from six months to more than two years in electronic communications without consentably should know was obtained illegally can- prison. See Ariz. Rev. Stat. Ann. §§ 13-702, is a misdemeanor punishable by up to a yearnot be divulged or used for anyone’s benefit. 13-801. in jail. Ark. Code Ann. § 5-4-401. In addi-Alaska Stat. Ann. § 42.20.310. Civil suits: Any person whose communi- tion, the court may impose fines of up to cations are illegally intercepted in violation $2,500. Ark. Code Ann. § 5-4-201. ViolationArizona of the state’s eavesdropping laws may bring a of the state’s video voyeurism law is a felony Summary of statute(s): An individual not civil suit within one year of the discovery of punishable by up to six years in prison. Ark.involved or present at a conversation must the violation to recover for damages, attor- Code Ann. § 5-4-401.have the consent of at least one party in ney fees, and any profits made by the person Disclosing recordings: Arkansas prohib-order to legally record either an oral or elec- disclosing the information. Ariz. Rev. Stat. its the distribution or posting to the Internettronic communication. Intercepting such Ann. § 12-731. In some cases, the court can of video recordings, film or photograph inconversations without consent is a felony also assess punitive damages. violation of its video voyeurism laws. Ark.under Arizona law. This excludes situations Disclosing recordings: Arizona prohibits Code Ann. § 5-16-101.where the person does not have a reasonable disclosure or publication of photographs,expectation of privacy. The state allows for videotapes or recordings made in violation Californiacivil suits for violations of its eavesdropping of the state’s hidden camera law. Ariz. Rev. Summary of statute(s): In California,laws. Stat. Ann. § 13-3019(B). all parties to any confidential conversation In-person conversations: Consent is must give their consent to be recorded. Thisrequired for the taping of a conversation Arkansas applies whether the recording is done face-spoken by a person who has a justified Summary of statute(s): An individual to-face or intercepted through some elec-expectation that the conversation will not be must have the consent of at least one party tronic communication such as a cell phoneintercepted. See definition of “oral commu- to a conversation in order to legally record call or series of e-mail or text messages.nication,” Ariz. Rev. Stat. Ann. § 13-3001. either an oral or electronic communication. Both civil and criminal penalties are avail-Absent that expectation, no consent is Intercepting such conversations without able to victims of illegal recordings. Further,required. For example, a state appellate consent is a misdemeanor under Arizona the state’s so-called “anti-paparazzi” legisla-court has held that a criminal defendant’s law. State law makes it a felony to use any tion sets fines for, among other things, tres-contention that police officers violated the camera to secretly view a person in a private passing on private property with the intentstate’s eavesdropping law by recording a area without consent. of capturing photos. The state’s vehicle codeconversation between him and his girlfriend In-person conversations: At least one similarly penalizes those who interfere withwithout his consent was meritless because party must give consent in order to record drivers of vehicles in pursuit of images orthe pair had no reasonable expectation of an in-person conversation, unless the person sound recordings.privacy in a police interrogation room. Ari- recording is a party to the conversation. Ark. In-person conversations: All parties tozona v. Hauss, 688 P.2d 1051 (Ariz. Ct. App. Code Ann. § 5-60-120. In some instances, any confidential communication must give1984). Therefore, recording in public places the court may find implied consent. For permission to be recorded, according tosuch as streets or parks is allowed absent any example, in 1999, the U.S. Court of Appeals California’s eavesdropping law. Cal. Penalconsent. (8th Cir.) held that a mother of a mentally Code § 632. The statute, however, spe- Electronic communications: A per- retarded son could not hold a care facility at cifically excludes from its application anyson cannot use any device to overhear or which her son had been a patient liable for conversations made in public places, gov-record a wire or electronic communication, invasion of privacy under Arkansas law, since ernment proceedings, or in circumstancesincluding wireless or cellular calls, without the mother knew some of her conversations where the participants of the conversationthe consent of at least one party to the con- with the facility’s employees were being could reasonably expect to be overheardversation, unless the person recording is a recorded. Alexander v. Pathfinder, Inc., 189 or recorded. Cal. Penal Code § 632(c).party to the conversation. Ariz. Rev. Stat. F.3d 735 (8th Cir. 1999). Additionally, California’s so-called “anti-Ann. § 13-3005. Because the provision of Electronic communications: Similarly, paparazzi” law prohibits trespassing with thethe statute dealing with wireless commu- intercepting any wire, landline, cellular or intent of capturing photographic images ornications applies to “any transfer of signs, cordless phone conversation is illegal unless sound recordings of people in “personal or6 The Reporters Committee for Freedom of the Press
  7. 7. familial activity.” Cal. Civil Code § 1708.8. an assault or trespassing to capture a visual telephone, however, is a misdemeanor pun-Committing an assault or falsely imprison- image or sound recording. Cal. Civil Code ishable by a fine of up to $5,000 and six toing subjects of a photo or sound recording § 1708.8(d). 18 months in jail. Colo. Rev. Stat. § 18-1.3-can also lead to violations of the statute. Disclosing recordings: The state prohib- 501. Violations of the eavesdropping statuteCal. Civil Code § 1708.8(c). Similarly, the its the intentional disclosure of the contents carry similar penalties, while violators of thestate’s vehicle code was recently amended of private communications obtained by wire- state’s hidden camera law can face misde-to include penalties for anyone who inter- tapping. Cal. Penal Code § 631. Those who meanor charges carrying a sentence of up toferes with the driver of a vehicle, follows too publish, sell or otherwise transmit images or one year in jail and fines up to $1,000. Colo.closely or drives recklessly “with the intent sound recordings while knowingly trespass- Rev. Stat. § 18-9-304.to capture any type of visual image, sound ing on private property are subject to fines. Disclosing recordings: Using or disclos-recording, or other physical impressions of Cal. Civil Code § 1708.8(f). ing information obtained through illegalanother person for a commercial purpose.” wiretapping is a felony, if there is reason toCal. Veh. Code § 40008. Colorado know the information was obtained illegally. Electronic communications: The state’s Summary of statute(s): An individual Colo. Rev. Stat. § 18-9-304.wiretapping law makes it a crime to inten- not involved or present at a conversationtionally tap or make any unauthorized con- must have the consent of at least one party Connecticutnection to intercept telephone conversa- in order to legally record either an oral or Summary of statute(s): Connecticuttions or to read the contents of any messages electronic communication. Intercepting requires at least one party’s consent to recordwithout the consent of all parties involved in in-person conversations without consent is an in-person conversation, and the consentsuch communications. See Cal. Penal Code a misdemeanor, although the state makes of all parties to a telephonic conversation.§§ 631, -7.2. an allowance for recording by news media The state’s voyeurism law prohibits taking Hidden cameras: The state’s disorderly in some situations. Intercepting electronic visual images of another person without thatconduct statute prohibits the use of “a con- communications without at least one party’s person’s consent or knowledge when there iscealed camcorder, motion picture camera, consent and disclosing information gained an expectation of privacy.or photographic camera of any type” to through such means are both felony crimes In-person conversations: A person notsecretly record a person while in a dressing under the state’s wiretapping law. present at a conversation must obtain theroom, tanning booth or while in any area In-person conversations: The consent of consent of at least one participant beforewhere the person has a reasonable expecta- at least one participant to a conversation is any recording can take place under thetion of privacy. Cal. Penal Code § 647(j). required before any recording can take place state’s eavesdropping law. Conn. Gen. Stat.Two appellate courts have come to opposite under the state’s eavesdropping law. Colo. §§ 53a-187, -89.conclusions as to whether using a hidden Rev. Stat. § 18-9-304. Colorado specifically Electronic communications: It is illegalcamera in a private place also violates the carves out an exemption for news media to record a telephone conversation in Con-state’s eavesdropping statute. See California from its eavesdropping and wiretapping necticut without the consent of all parties tov. Gibbons, 215 Cal. App. 3d 1204 (Cal. Ct. statutes, stating that its laws are not to be the call. Consent should be given prior toApp. 1989)(a video recorder can be consid- “interpreted to prevent a news agency, or an the recording, and should either be in writ-ered a recording device under the statute); employee thereof, from using the accepted ing or recorded verbally, or a warning thatPeople v. Drennan, 84 Cal. App. 4th 1349 tools and equipment of that news medium the conversation is being taped should be(Cal. Ct. App. 2000)(eavesdropping statute in the course of reporting or investigating recorded. Conn. Gen. Stat. § 52-570d.protects only sound-based or symbol-based a public and newsworthy event.” Colo. Rev. Hidden cameras: The state’s voyeurismcommunication). Stat. § 18-9-305. law prohibits knowingly photographing, Criminal penalties: A first offense of Electronic communications: The con- filming or recording in any way anothereavesdropping or wiretapping is punishable sent of at least one party is required to person’s image without consent in situationsby a fine of up to $2,500 or imprisonment record or intercept a telephone conversation where the person is unaware of the film-for no more than one year. Cal. Penal Code or any electronic communication, according ing, not in plain view and has a reasonable§§ 631, 632. Subsequent offenses carry a to the state’s wiretapping statute. Colo. Rev. expectation of privacy. Conn. Gen. Stat. §maximum fine of $10,000 and jail sentence Stat. § 18-9-303. Because the provision of 53a-189a.of up to one year. Disclosing the contents of the statute dealing with wireless commu- Criminal penalties: Violation of theintercepted telephone conversations could nications applies to “any transfer of signs, state’s eavesdropping and voyeurism laws, aslead to fines of up to $5,000 and one year signals, writing, images, sounds, data or well as the dissemination of images in viola-in jail. Cal. Penal Code § 637. Violation of intelligence” of any nature, consent likewise tion of the law, are all felonies punishable bythe state’s hidden camera statute is a misde- is required to disclose the contents of text imprisonment for one to five years. Conn.meanor punishable by up to a year in jail and or e-mail messages sent between wireless Gen. Stat. § 53a-35a.fines of up to $1,000. Cal. Penal Code § 19. devices. Colo. Rev. Stat. § 18-9-301. Civil suits: Recording a telephone con-The state’s vehicle code provides for penal- Hidden cameras: The state prohibits versation without the consent of all partiesties of up to a year in jail and fines of up to under its privacy laws anyone from know- subjects an individual to liability for dam-$2,500. Cal. Veh. Code § 40008(a). ingly observing or taking any visual images ages, as well as litigation costs and attorney Civil suits: Anyone injured by a violation of another person’s body without consent in fees. Conn. Gen. Stat. § 52-570d(c).of the laws against disclosure of telephonic situations where the subject of the filming or Disclosing recordings: Connecticutmessages can recover civil damages of $5,000 photography has a reasonable expectation of prohibits disseminating recorded imagesor three times actual damages, whichever is privacy. Colo. Rev. Stat. § 18-7-801. of another person in violation of the state’sgreater. Cal. Penal Code § 637.2. The court Criminal penalties: Disclosing informa- voyeurism law. Conn. Gen. Stat. § 53a-189b.may also impose injunctions preventing the tion obtained illegally, as well as violationsuse of illegally obtained information. Cal. of the state’s wiretapping statute are both DelawarePenal Code § 637.2(b). The state’s civil code felonies punishable by a fine of between Summary of statute(s): Delaware’s wire-provides for fines of up to $50,000, three $1,000 and $100,000 and one year to 18 tapping and surveillance laws require at leasttimes the amount of actual or special dam- months in jail. Colo. Rev. Stat. § 18-1.3-401. one party’s consent to record both in-personages, and punitive damages for committing Recording communication from a cordless conversations and electronic communica-Reporter’s Recording Guide 7
  8. 8. tions. However, there is some conflict in Hidden cameras: The state’s privacy stat- hibits the disclosure of any intercepted oralthe laws. A state privacy law makes it illegal ute prohibits installing a camera or other or electronic communication if that personto intercept private conversations without recording device “in any private place, with- knows or has reason to know the informa-the consent of all parties. Del. Code Ann. out consent of the person or persons entitled tion was obtained in violation of the state’stit. 11, § 1335(a)(4). The wiretapping law is to privacy there.” Del. Code Ann. tit. 11, § wiretapping and eavesdropping statutes.much more recent, though, and at least one 1335(2). The law also bars the use of hid- Del. Code Ann. tit. 11, § 2402(a)(2).federal court has held that, even under the den cameras to record individuals dressingprivacy law, an individual can record his own or undressing in a private place. Del. Code District of Columbiaconversations. United States v. Vespe, 389 F. Ann. tit. 11, § 1335(a)(6), -(7). Summary of statute(s): In the DistrictSupp. 1359 (1975). Criminal penalties: Communications of Columbia, an individual may record or In-person conversations: An individual intercepted illegally, or the disclosure of the disclose the contents of a wire or oral com-can record oral conversations where either contents of illegally recorded communica- munication if he or she is a party to the com-the person is a party to the conversation or tions is a felony punishable by up to five munication, or has received prior consentat least one of the participants has consented years in prison and a fine of up to $10,000. from one of the parties. The District’s voy-to the recording, so long as the recording or Del. Code Ann. tit. 11, § 2402(b). Install- eurism law prohibits secretly taking imagesinterception is not done for the purpose of ing a hidden recording device in any private of people in private settings and distribut-committing a criminal or tortious act. Del. place is a misdemeanor punishable by up to ing them without consent. The District alsoCode Ann. tit. 11, § 2402(c)(4). one year in jail and fines of up to $2,300. contains several obscure city rules regulat- Electronic communications: Similarly, Del. Code Ann. tit. 11, § 4206. The provi- ing the activities of commercial street pho-absent any criminal or tortious intent, a sion barring the taking of photo images of tographersperson is allowed to record or intercept individuals undressing in a private place is In-person conversations: The consentany electronic communication such as a a felony punishable by up to two years in of at least one participant to a conversa-telephone call with the consent of at least prison. Del. Code Ann. tit. 11, § 4205(a). tion is required before any recording canone party to the conversation. Del. Code Civil suits: Any person whose communi- take place under the District’s wiretappingAnn. tit. 11, § 2402(c)(4). And because the cations are illegally intercepted, disclosed or law. D.C. Code § 23-542. This means aprovision of the statute dealing with wire- used in violation of the state’s eavesdropping reporter’s tape-recorded conversation withless communications applies to “any transfer laws may bring a suit to recover for both a source would be permissible, since thatof signs, signals, writing, images, sounds, actual and punitive damages, as well as attor- reporter is a party to the conversation. Thedata or intelligence” of any nature, consent ney fees and litigation costs. Del. Code Ann. District’s municipal regulations also containlikewise is required to disclose the contents tit. 11, § 2409(a). However, a good faith reli- a set of obscure rules requiring street pho-of text or e-mail messages sent between ance on a court order or legislative authori- tographers selling their wares to tourists onwireless devices. Del. Code Ann. tit. 11, § zation constitutes a complete defense. public spaces to become licensed. See D.C.2401(a). Disclosing recordings: The state pro- Mun. Regs. § 24-521, -22. The District Possession and publication Journalists should be aware that wire- During the conversation, Anthony F. Kane, the public interest outweighed claims tap laws raise issues beyond just whether Jr., president of the local teachers’ union, told of privacy, the majority of the Court they have met consent requirements. Gloria Bartnicki, a union negotiator, that supported “a profound national com- The federal law and many state laws if teachers’ demands were not met, “we’re mitment to the principle that debate explicitly make it illegal to possess — gonna have to go to their, their homes . . . to on public issues should be uninhibited, and particularly to publish — the con- blow off their front porches, we’ll have to do robust and wide-open.” The majority tents of an illegal wiretap, even if it is some work on some of those guys.” While explained that those who participate in made by someone else. Some states that Bartnicki and Kane spoke, an unknown per- public affairs have a diminished expec- allow recordings make the distribution son illegally intercepted the call, and a tape tation of privacy, especially when they or publication of those otherwise legal recording was left in the mailbox of a local propose to carry out wrongful conduct. recordings a crime. association leader. The association leader The case was a significant win for the The 1986 Electronic Communica- gave a copy of the tape to two radio talk media, but its implications for news- tions Privacy Act (amending the federal show hosts, who broadcast the tape as a part gatherers are still not entirely clear. The wiretap law) makes it illegal to possess of a news show. Local television stations also Court’s decision was premised on three or divulge the contents of any illegally aired the tape, and newspapers published factors: the media did not engage in intercepted communication. transcripts of the conversation. or encourage the illegal recording, the The U.S. Supreme Court ruled in Bartnicki and Kane sued some of the sta- topic of the intercepted conversation May 2001 that several media defendants tions and newspapers that had disclosed the was of public concern and the conver- could not be held liable for damages contents of the tape. The case made its way sation involved proposed criminal acts. under the federal statute for publishing to the Supreme Court, which found that The Court did not indicate whether and broadcasting information obtained First Amendment principles, which support disclosure by the media under differ- through an illegal interception of a pri- a commitment “that debate on public issues ent circumstances would be considered vate conversation. should be uninhibited, robust, and wide- legal. (Bartnicki v. Vopper) The case arose from a cell-phone con- open,” trumped the privacy concerns of the The U.S. Court of Appeals in Boston versation in Pennsylvania about contract union leaders. (1st Cir.) decided in 2007 in Jean v. negotiations for local school teachers. In ruling that disclosure of a matter in Massachusetts State Police that the First8 The Reporters Committee for Freedom of the Press
  9. 9. imposes several rules governing the conduct no more than $10,000 or imprisonment for alties exist for such infractions. The state’sof such photographers, including prohibit- no more than five years, or both. D.C. Code video voyeurism law bans the secret record-ing them from impeding traffic and limiting § 23-542. Violating the District’s voyeurism ing underneath or through the clothing ofthe time spent in any one place to five min- law is a misdemeanor punishable by up to individuals without their consent, or in areasutes. D.C. Mun. Regs. § 24-523.3. Concerns a year in prison and fines of up to $1,000. where they have a reasonable expectation ofover these rules and their potential for abuse D.C. Code § 23-3531(f). Distribution of privacy.prompted promises from District officials images in violation of the District’s voyeur- In-person conversations: All partiesto clarify that the rule would apply only to ism law is a felony punishable by up to five to any confidential communication muststreet vendors who take photos of people to years imprisonment and fines not more than give permission to be recorded, accordingsell to them. See Mike DeBonis, D.C. Will $5,000. D.C. Code § 23-3531(f)(2). to Florida’s eavesdropping law. Fla. Stat. §Revisit Street Photography Regulations, Wash. Civil suits: Anyone who illegally records 934.03(2)(d). Under the statute, consent isPost, Nov. 28, 2011, http://www.washing- or discloses the contents of a communica- not required for the taping of an oral com-tonpost.com/blogs/mike-debonis/post/ tion is also subject to civil liability for the munication spoken by a person who doesdc-will-revisit-street-photography-regu- greater of actual damages, damages in the not have a reasonable expectation of privacylations/2011/11/28/gIQAbxqX5N_blog. amount of $100 per day for each day of vio- in that communication. See definition ofhtml. lation, or $1,000, along with punitive dam- “oral communication,” Fla. Stat. § 934.02. Electronic communications: Similarly, ages, attorney fees and litigation costs. D.C. For example, a speech made by the mayor atintercepting any wire or landline conversa- Code § 23-554. the grand opening of a new city park wouldtion is illegal unless the person recording is Disclosing recordings: The District pro- not create a reasonable expectation of pri-a party to the conversation or at least one of hibits disclosure of the contents of an ille- vacy in the contents of that communication.the parties has given consent. D.C. Code § gally recorded communication. However, Electronic communications: It is illegal23-542. such disclosure cannot be punished crimi- to tape or overhear a telephone conversation Hidden cameras: The District’s voyeur- nally if the contents of the communication in Florida without the consent of all partiesism law prohibits stationing oneself in a have “become common knowledge or public to the conversation. Fla. Stat. § 934.03(2)(d).“hidden observation post” or installing any information.” D.C. Code § 23-542. Because the provision of the statute deal-electronic device to secretly record another ing with wireless communications appliesperson using a restroom, undressing or Florida to “any transfer of signs, signals, writing,engaging in sexual activity. D.C. Code § Summary of statute(s): All parties must images, sounds, data or intelligence of any23-3531. consent to the recording or the disclosure of nature,” consent likewise is required to dis- Criminal penalties: Recording or dis- the contents of any wire, oral or electronic close the contents of text or e-mail messagestributing the contents of any recordings of communication in Florida. Disclosing com- sent between wireless devices. Fla. Stat. §communications made without proper con- munications in violation of the state’s statute 934.02(a)(12). Either the parties allegingsent can be punished criminally by a fine of is prohibited. Both criminal and civil pen- violation of the wiretap law must be FloridaAmendment prevented Massachusetts law publishing a tape of a woman being arrested the Westboro Baptist Church’s protestenforcement officials from interfering with without her consent is protected under involved speech about a matter of publican individual’s Internet posting of an audio the First Amendment. Eran Best, who was concern, it was protected by the Firstand video recording of an arrest and war- filmed being arrested during a traffic stop, Amendment, and Snyder’s father wouldrantless search of a private residence, even did not consent to the tape appearing on the need to prove actual malice in his lawsuitthough the poster had reason to know at the reality show Female Forces. for intentional infliction of emotionaltime she accepted the recording that it was Best sued the officer and media companies distress against the Westboro Baptists,illegally recorded. responsible for the taping and broadcast of making it much hard for Snyder’s father The Court applied Bartnicki and deter- her arrest under the Illinois right of pub- to succeed.mined that the state’s interest in protecting licity statute, arguing that her identity had Taken together, Bartnicki and Snyderthe privacy of its citizens — encouraging been used commercially without her con- may suggest broad protection for theuninhibited exchange of ideas and informa- sent. The court, relying in part on Bartnicki, press against laws that prohibit publish-tion among private parties and avoiding sus- held that because a tape of an arrest involved ing the contents of an illegal wiretap.picion that one’s speech is being monitored a “truthful matter of public concern,” the Bartnicki held that when broadcastingby a stranger — was less compelling in this First Amendment-based right to broadcast the tape of an illegally recorded con-case than in Bartnicki, in which it was not it outweighed Best’s privacy rights. (Best v. versation, the First Amendment rightgiven much weight. Berard) to publish a matter of public concern The Court of Appeals in Jean also con- The Illinois court partly relied on an could outweigh the privacy rights ofsidered two factors that it found weighed important First Amendment decision from those recorded. Snyder, in turn, dem-in favor of First Amendment protection for 2011, the Supreme Court case Snyder v. onstrated that a very broad range ofthe publisher: the identity of the intercep- Phelps, to support its argument that the tape content can be considered to be of pub-tor was known, providing less justification had captured a matter of public concern. In lic concern—including even a highlyto punish the publisher than in Bartnicki Snyder, the father of a deceased marine sued offensive protest directed at a privatewhere the interceptor was unknown, and the Westboro Baptist Church for inten- funeral. But until more such controver-the publisher of the tape was a private citi- tional infliction of emotional distress, after sies work their way through the courts,zen. the church picketed his son Matthew Sny- the boundaries of the right to publish In another case to follow Bartnicki, decided der’s funeral. the contents of an illegal recording willin 2011, a federal court in Illinois held that The Supreme Court held that because remain unclear.Reporter’s Recording Guide 9
  10. 10. residents or the words of any intercepted to the recording. Ga. Code Ann. § 16-11- phone or other electronic communication,private conversation must be spoken in 66(a). The Georgia Court of Appeals, how- or with consent from one of the participants,Florida for the all-party consent provision in ever, interpreted the statute to require the is allowed to record or intercept any suchthe statute to apply. See Cohen Brothers, LLC consent of all parties with respect to video communication. Haw. Rev. Stat. § 803-42.v. ME Corp., S.A., 872 So.2d 321, 324 (Fla. recording in private circumstances. See Because the provision of the statute deal-3d Dist. Ct. App. 2004). Gavin v. State, 664 S.E.2d 797 (Ga. Ct. App. ing with wireless communications applies Hidden cameras: The state’s video voy- 2008). State law also prohibits trespassing to “any transfer of signs, signals, writing,eurism laws prohibit the installation of any on private property to eavesdrop or secretly images, sounds, data or intelligence of anyimaging devices “to secretly view, broadcast, observe activities of another. Ga. Code Ann. nature,” consent likewise is required to dis-or record a person, without that person’s § 16-11-62(3). close the contents of text or e-mail messagesknowledge and consent” in circumstances Electronic communications: Similarly, a sent between wireless devices. Haw. Rev.where the person is privately exposing the person who is either a participant in a tele- Stat. § 803-41. The one-party consent rulebody in an area where there is a reasonable phone or other electronic communication, does not apply, however, to the installationexpectation of privacy. Fla. Stat. § 810.145. or with consent from one of the participants, of a recording device in a “private place”The law also bans secretly videotaping is allowed to record or intercept any such that will amplify or broadcast conversationsunderneath or through clothing without the communication. Ga. Code Ann. § 16-11- outside that private place. All parties whosubject’s consent. Id. 66(a). The state’s wiretapping and eaves- have a reasonable expectation of privacy in Criminal penalties: Recording, disclos- dropping statutes specifically allow for the that place must consent to the installationing, or endeavoring to disclose without the secret recording or listening to telephone of a recording device. Haw. Rev. Stat. § 711-consent of all parties is a felony punishable conversations of minor children without 1111.by up to five years in prison and $5,000 in consent for the purpose of ensuring their Hidden cameras: It is a felony to installfines, unless the interception is a first offense welfare. Ga. Code Ann. § 16-11-66(d). or use a surveillance device in a private areacommitted without any illegal purpose, Hidden cameras: The state prohibits the to view a person in a “stage of undress orand not for commercial gain. Fla. Stat. § use of a camera “without the consent of all sexual activity” without the person’s con-934.03(4)(a). In those circumstances, then, persons observed, to observe, photograph, sent. Haw. Rev. Stat. § 711-1110.9. Secretlysuch an infraction is a misdemeanor punish- or record the activities of another which taking images of another underneath theirable by up to a year in jail and fines of up occur in any private place and out of public clothing while in public is a misdemeanor.to $1,000. Fla. Stat. § 934.03(4)(b). Adults view.” Ga. Code Ann. § 16-11-62(2). Haw. Rev. Stat. § 711-1111. A person cantaking or distributing images in violation of Criminal penalties: Violation of any pro- also be charged with a misdemeanor sexualthe state’s video voyeurism law could face visions of the wiretapping statute carries a assault for trespassing on private property tofelony charges of up to five years in prison penalty of imprisonment between one and secretly observe somebody for the purposeand $5,000 in fines. Fla. Stat. § 810.145. five years or a fine of up to $10,000. Ga. of sexual gratification. Haw. Rev. Stat. § Civil suits: Anyone whose communica- Code Ann. § 16-11-69. 707-733(c).tions have been illegally intercepted or dis- Disclosing recordings: It is illegal for any Criminal penalties: Unlawful intercep-closed may recover actual damages of up to person to divulge or distribute to any person tions or disclosures of private communica-$1,000 for each day of the violation, along the content or substance of any private mes- tions are felonies punishable by up to fivewith punitive damages, attorney fees and sage, photograph or communication with- years imprisonment and a fine of up tolitigation costs. Fla. Stat. § 934.10. out the consent of all parties involved. Ga. $10,000. Haw. Rev. Stat. §§ 706-640, -60. Disclosing recordings: The state pro- Code Ann. § 16-11-62(6). However, Geor- Similar penalties are in place for the instal-hibits the disclosure of any intercepted oral gia specifically allows the parents of minor lation of hidden cameras. Further, the courtor electronic communication if that person children to disclose the contents of secretly may order the destruction of such record-knows or has reason to know the informa- intercepted telephone conversations or any ings. Haw. Rev. Stat. § 711-1110.9. Viola-tion was obtained in violation of the state’s electronic communication to a district attor- tors of the state’s sexual assault law and thosewiretapping statutes. Fla. Stat. § 934.03(1) ney or law enforcement officer if the parent secretly taking images of individuals under-(c). Similar bars exist for individuals who dis- has a good faith belief that the communica- neath their clothing can be punished by uptribute images in violation of the state’s video tion is evidence of criminal conduct involv- to a year in jail and a fine of up to $2,000.voyeurism law. Fla. Stat. § 810.145(3), (4). ing the child as a victim. Ga. Code Ann. § Rev. Stat. §§ 706-640, -63. 16-11-66(d). Civil suits: Anyone whose communica-Georgia tions have been illegally intercepted, dis- Summary of statute(s): An individual Hawaii closed or used may recover actual and puni-may record or disclose the contents of a Summary of statute(s): An individual tive damages and any profits made by thewire, oral or electronic communication if he may record or disclose the contents of a violator, along with attorney fees and litiga-or she is a party to the communication or wire, oral or electronic communication if tion costs. Haw. Rev. Stat. § 803-48.has received prior consent from one of the he or she is a party to the communication, Disclosing recordings: It is illegal toparties. The state prohibits the use of cam- or has received prior consent from one of use or disclose the contents of any privateeras to observe private activities without the the parties. In addition, the state’s hidden oral or electronic conversation, message orconsent of all parties involved, and also pro- camera law prohibits recording images of a photographic image without the consent ofhibits disclosure of the contents of illegally person in private areas while in any stage of at least one party to the conversation if theobtained recordings. However, Georgia undress. The state provides both civil and accused knew or had reason to know that thecarves out an exception, allowing the par- criminal penalties for violators. message was unlawfully intercepted. Haw.ents of minor children to intercept private In-person conversations: An individual Rev. Stat. § 803-42(a)(3), -(a)(4).telephonic and electronic communications can record oral conversations where eitherwithout consent. the person is a party to the conversation or Idaho In-person conversations: An individual at least one of the participants has consented Summary of statute(s): An individualcan record oral conversations where either to the recording. Haw. Rev. Stat. § 803-42. may record or disclose the contents of athe person is a party to the conversation or Electronic communications: Similarly, a wire, oral or electronic communication ifat least one of the participants has consented person who is either a participant in a tele- he or she is a party to the communication,10 The Reporters Committee for Freedom of the Press
  11. 11. or has received prior consent from one of part of any” oral conversation. 720 Ill. Com- tion one knows or should have known wasthe parties. The state provides both civil and piled Stat. 5/14-2(a)(1). The eavesdropping obtained with an eavesdropping device. 720criminal penalties for violators. provisions apply regardless of whether any Ill. Compiled Stat. 5/14-2(a)(3). However, In-person conversations: At least one of the participants intended the conversa- not disclosing the contents of the illegallyparty must give consent in order to record tion to be private. 720 Ill. Compiled Stat. obtained communication is an affirmativean in-person conversation. Idaho Code Ann. 5/14-1(d). The eavesdropping statute, how- defense to the charge. 720 Ill. Compiled§ 18-6702. ever, exempts the all-party consent require- Stat. 5/14-2(b)(4). Further, disclosing video Electronic communications: Similarly, ment for police officers acting in the scope images taken in violation of the state’s voy-using a device to record conversations over of their law enforcement duties. 720 Ill. eurism law is a felony. 720 Ill. Compiledelectronic communications such as tele- Compiled Stat. 5/14-3(g). Stat. 5/26-4(a-25).phones is allowed with the consent of at Electronic communications: Similarly,least one party to the conversation. Idaho the statute makes it a felony to intercept IndianaCode Ann. § 18-6702. Because the provision any telephone or electronic communication Summary of statute(s): Indiana bars theof the statute dealing with wireless commu- unless all parties give their consent. 720 Ill. recording or interception of any telephonicnications applies to “any transfer of signs, Compiled Stat. 5/14-1, -2. Because the pro- or electronic communication by means ofsignals, writing, images, sounds, data or vision of the statute dealing with electronic any mechanical or electronic device withoutintelligence of any nature,” consent likewise communications applies to “any transfer of the consent of at least one party to the con-is required to disclose the contents of text signs, signals, writing, images, sounds, data versation. The state also prohibits disclo-or e-mail messages sent between wireless or intelligence of any nature,” consent like- sure of images intercepted in violation of itsdevices. Idaho Code Ann. § 18-6701(10). wise is required to disclose the contents of video voyeurism law. Violators can face both Hidden cameras: The state’s video voy- text or e-mail messages sent between wire- civil and criminal penalties.eurism laws prohibit the installation of any less devices. 720 Ill. Compiled Stat. 5/14- Electronic communications: The statutedevices capable of recording, storing or 1(e). makes it a felony to intercept any telephonetransmitting visual images to secretly view, Hidden cameras: A person cannot “vid- or electronic communication unless at leastbroadcast or record a person, without that eotape, photograph, or film another person one party gives their consent. Ind. Codeperson’s knowledge and consent in an area without that person’s consent in a restroom, Ann. § 35-31.5-2-176. Because the provi-where there is a reasonable expectation of tanning bed or tanning salon, locker room, sion of the statute dealing with electronicprivacy. Idaho Code Ann. § 18-6609(2). The changing room or hotel bedroom,” or in communications applies to “any transfer ofuse of such cameras and publication or dis- their residence without their consent. 720 signs, signals, writing, images, sounds, datasemination of images captured are felonies. Ill. Compiled Stat. 5/26-4. The law also or intelligence of any nature,” consent like- Criminal penalties: Punishment for the prohibits the concealed photography and wise is required to disclose the contents offelony of an illegal interception or disclo- video recordings of an individual’s body text or e-mail messages sent between wire-sure can include up to five years in prison either under or through that person’s cloth- less devices. Ind. Code Ann. § 35-31.5-2-and as much as $5,000 in fines. Idaho Code ing without that person’s knowledge or con- 110.Ann. § 18-6702. Violation of the state’s sent. Id. 5/26-4(a-10). Hidden cameras: The state’s video voy-video voyeurism laws carry penalties of up Criminal penalties: Violations of the eurism law makes it a misdemeanor to pho-to five years imprisonment and $50,000 in eavesdropping law are punishable as felo- tograph the private bodily areas of a personfines. Idaho Code Ann. § 18-112. nies, with first offenses categorized as lesser, without consent. Ind. Code Ann. § 35-45- Civil suits: Anyone whose communica- Class 4 felonies than subsequent offenses. 4-5(d). The penalty escalates to a felony iftions have been illegally intercepted, dis- 720 Ill. Compiled Stat. 5/14-4. Violations the photo is taken in a private area such asclosed or used may recover actual and puni- are elevated to a Class 1 felony with a pos- a restroom, shower or dressing room. Ind.tive damages, along with attorney fees and sible prison term of up to 15 years if one of Code Ann. § 35-45-4-5(b)(2).litigation costs. Idaho Code Ann. § 18-6709. the recorded individuals is a law enforce- Criminal penalties: Knowingly or inten- Disclosing recordings: A person who ment officer, assistant state’s attorney or tionally intercepting a communication inintercepts a private conversation cannot judge “while in the performance of his or violation of Indiana’s wiretap laws is a felonyknowingly disclose or use the information her official duties.” 720 Ill. Compiled Stat. punishable by up to eight years in prison andwithout consent of at least one party. Idaho 5/14-4(b). The U.S. Court of Appeals in a $10,000 fine. Ind. Code Ann. § 35-33.5-5-Code Ann. §§ 18-6702(c), (d). u Chicago (7th Cir.), however, put the con- 5(b). Misdemeanor violations of the state’s stitutionality of this provision into question video voyeurism law are punishable by oneIllinois by concluding that portions of the Illinois year in jail and up to $5,000 in fines. Ind. Summary of statute(s): In Illinois, an Eavesdropping Act are “likely unconsti- Code Ann. § 35-50-3-2. A felony charge ofeavesdropping device cannot be used to tutional” and could not be applied to the the voyeurism law carries penalties of up torecord or overhear a conversation or inter- American Civil Liberties Union of Illinois six years imprisonment and a $10,000 fine.cept, retain or transcribe a telephone or when it records conversations of police offi- Ind. Code Ann. § 35-50-2-7.electronic communication without the con- cers openly engaged in their public duties. Civil suits: Civil liability for intercepting,sent of all parties involved. While the all- ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th disclosing or using the contents of a confi-party consent requirement does not apply Cir. 2012). dential communication in violation of theto police officers acting within the scope Civil suits: Participants to any communi- state’s wiretapping law may require the pay-of their duties, the law provides for harsher cation intercepted or recorded in violation ment of actual and punitive damages, courtpenalties for anyone caught recording police of the state’s eavesdropping statute have costs and attorney fees. Ind. Code Ann. §activities while in public. The U.S. Court of civil remedies that include injunctive relief 35-33.5-5-4.Appeals in Chicago (7th Cir.) put the consti- prohibiting any further eavesdropping, as Disclosing recordings: The state’s videotutionality of the state’s eavesdropping law well as actual and punitive damages against voyeurism law makes it a Class D felonyinto question in May 2012. the eavesdropper. 720 Ill. Compiled Stat. offense to publish, transmit or make images In-person conversations: The state 5/14-6. captured without the subject’s consent avail-requires all parties to a conversation to give Disclosing recordings: The eavesdrop- able on the Internet. Ind. Code Ann. §consent before one can record “all or any ping law makes it illegal to use or informa- 35-45-4-5(e).Reporter’s Recording Guide 11
  12. 12. Iowa eavesdropping statute, a person may record one year in jail and a $1,875 fine. Iowa Code Summary of statute(s): Iowa has two sets a telephone or communication of any kind Ann. § 903.1.of similar statutes dealing with the intercep- if the person listening or recording is a Civil suits: Anyone whose confidentialtion of oral, telephonic or electronic com- sender or recipient. Failure to get consent communications are intercepted, disclosedmunications. Both laws bar the recording is a serious misdemeanor. Iowa Code Ann. or used in violation of the state’s wiretappingor interception of such communications § 727.8. Under the state’s “Interception of and eavesdropping laws may seek injunctiveby means of any mechanical or electronic Communications” statute, it is a Class D relief from the court and recover in a civildevice without the consent of at least one felony to willfully intercept any wire or elec- suit the payment of actual and punitive dam-party. The state prohibits disclosure of the tronic communication absent the consent ages, attorney fees and other litigation costs.illegally intercepted contents of such com- of at least one party to the communication. Iowa Code Ann. § 808B.8.munications. Violators can face both civil Because the provision of the statute deal- Disclosing recordings: Iowa prohibitsand criminal penalties. ing with electronic communications applies the disclosure of the contents of any oral, In-person conversations: Iowa’s elec- to “any transfer of signals, signs, writing, telephonic or other electronic communica-tronic and mechanical eavesdropping statute images, sounds, data or intelligence of any tion if the person knows or has reason tomakes it a serious misdemeanor for a person nature,” consent of at least one party like- believe the communications were inter-to overhear or tape a private conversation to wise is required to disclose the contents of cepted in violation of the state’s eavesdrop-which that person is not openly present and text or e-mail messages sent between wire- ping laws. Iowa Code Ann. § 808B.2.participating or listening, unless consent to less devices. Iowa Code Ann. § 808B.1. Hidden cameras: The state’s privacy law Kansasrecord is given by at least one of the parties.Iowa Code Ann. § 727.8. Under the state’s makes it a serious misdemeanor to secretly Summary of statute(s): Kansas bars the“Interception of Communications” statute, view, photograph or film a person who is recording, interception, use or disclosureit is a Class D felony to willfully intercept either fully or partially nude without consent, of any oral or telephonic communicationthe contents of a confidential oral conversa- so long as that subject has a reasonable expec- by means of any mechanical or electroniction. The statute, however, expressly permits tation of privacy. Iowa Code Ann. § 709.21. device without the consent of at least onethe recording through the use of any device Criminal penalties: Felony charges under party to the conversation. The state alsoby either a party to the conversation, or with the state’s Interception of Communications prohibits the recording and disclosure ofthe consent of at least one party, so long as statute carry penalties of up to five years images intercepted in violation of its hiddenthe recording is done absent any criminal or imprisonment and a $7,500 fine. Iowa Code camera law. Violators can face both civil andtortious intent. Iowa Code Ann. § 808B.2. Ann. § 902.9. Serious misdemeanor charges criminal penalties. Electronic communications: Similarly, under both the eavesdropping and hidden In-person conversations: The state’sunder the state’s electronic and mechanical camera privacy laws carry penalties of up to breach of privacy law makes it a misde- Interstate phone calls In light of the differing state laws gov- was recorded with the woman’s consent by in Virginia that was recorded without erning electronic recording of conversa- reporters for The Globe, a national tabloid the suspect’s permission. The Virginia tions between private parties, journalists newspaper. The court ruled that the law of and federal statutes allow one party to are advised to err on the side of caution the state where the injury occurred, New record a conversation, while Pennsyl- when recording or disclosing an inter- York, should apply. (Krauss v. Globe Interna- vania, as discussed above, requires the state telephone call. The safest strategy tional) consent of all parties. The man asked is to assume that the stricter state law will The Supreme Court of California in Kear- prosecutors to charge the journal- apply. ney v. Salomon Smith Barney applied Cali- ists under the Pennsylvania law. The For example, a reporter located in the fornia wiretap law to a company located in court eventually dismissed the charges District of Columbia who records a tele- Georgia that routinely recorded business against the newspaper staff — but on phone conversation without the consent phone calls with its clients in California. the unrelated ground that the suspect of a party located in Maryland would California law requires all party consent to had no expectation of privacy during his not violate District of Columbia law, but record any telephone calls, while Georgia telephone interview with the columnist. could be liable under Maryland law. A law requires only one party consent. The (Pennsylvania v. Duncan) court located in the District of Columbia state’s high court, applying choice of law Federal law may apply when the con- may apply Maryland law, depending on principles, reasoned that the failure to apply versation is between parties who are in its “conflict of laws” rules. Therefore, an California law would “impair California’s different states, although it is unsettled aggrieved party may choose to file suit in interest in protecting the degree of privacy whether a court will hold in a given case either jurisdiction, depending on which afforded to California residents by Califor- that federal law “pre-empts” state law. law is more favorable to the party’s claim. nia law more severely than the application of In Duncan, the newspaper argued that In one case, a New York trial court was California law would impair any interests of the federal law should pre-empt the asked to apply the Pennsylvania wiretap the State of Georgia.” state statutes, because the telephone call law — which requires consent of all par- In another case involving Pennsylvania crossed state lines, placing it under fed- ties — to a call placed by a prostitute law, four employees of The Times Leader, a eral jurisdiction. However, in that case, in Pennsylvania to a man in New York. newspaper in Wilkes-Barre, were arrested the court did not address the pre-emp- Unlike the Pennsylvania wiretap statute, after they printed a transcript of a tele- tion issue. Moreover, as noted above, the New York and federal statutes require phone conversation between a columnist in either state may choose to enforce its the consent of only one party. The call Pennsylvania and a murder suspect living own laws.12 The Reporters Committee for Freedom of the Press

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