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.

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

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  • 1. Summer 2012Reporter’sRecordingGuide A state-by-state guide to taping phone calls and in-person conversations
  • 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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
  • 13. meanor to secretly use any device to listen is loud enough to be heard through the wall Ann. § 15:1303.to, record or amplify a private conversation or through the heating system without the Electronic communications: Similarly,in a private place without the consent of at use of any device is not protected by the the statute prohibits the willful interceptionleast one party. Kan. Stat. Ann. § 21-6101(4). statute, since a person who desires privacy of any telephone or wire communication Electronic communications: Similarly, can take the steps necessary to ensure that absent the consent of at least one party tothe state law makes it a misdemeanor “to his conversation cannot be overheard by the the communication. La. Rev. Stat. Ann. §intercept by telephone, telegraph, letter ordinary ear. Id. 15:1303.or other means of private communication” Electronic communications: Similarly, Hidden cameras: The state’s video voy-the contents of any message sent without the statute makes it a felony to intercept any eurism law bars the use of any type of hiddenthe consent of either the sender or receiver. telephone communication without the con- camera to observe or record a person whereKan. Stat. Ann. § 21-6101(1). sent of at least one party. Ky. Rev. Stat. Ann. that person has not consented if the record- Hidden cameras: It is a felony to use a § 526.010. ing “is for a lewd or lascivious purpose.” La.hidden camera to film or photograph a per- Hidden cameras: It is a misdemeanor to Rev. Stat. Ann. § 14:283.son who is nude or in a state of undress with- use a hidden camera or any image-recording Criminal penalties: A violation of theout the person’s consent in a place where the device to view, photograph or film a person state’s eavesdropping law, whether byperson has a reasonable expectation such who is nude or performing sexual conduct recording or disclosing the contents of afilming would not take place. Kan. Stat. without the person’s consent in a place communication without proper consent,Ann. § 21-6101(6). The law also prohib- where the person has a reasonable expecta- carries a prison sentence of up to 10 years ofits the concealed photography and video tion such filming would not take place. Ky. hard labor and a $10,000 fine. La. Rev. Stat.recordings of an individual’s body either Rev. Stat. Ann. § 531.090. Ann. § 15:1303. Violation of the state’s videounder or through that person’s clothing Criminal penalties: Recording or inter- voyeurism law can be punishable by a prisonwithout that person’s knowledge or con- cepting private communications in violation sentence anywhere from two to 10 years ofsent. Id. of the state’s eavesdropping law, or distribut- hard labor and a court fine. La. Rev. Stat. Criminal penalties: Recording, intercept- ing images in violation of the state’s video Ann. § 14:283(B).ing or divulging the contents of any private voyeurism law are felony offenses pun- Civil suits: Anyone whose confidentialcommunications without the consent of at ishable by up to five years in prison and a communications are intercepted, disclosedleast one party is a misdemeanor punishable $5,000 fine. Ky. Rev. Stat. Ann. §§ 532.060, or used in violation of the state’s eavesdrop-by up to a year in jail and a court fine. Kan. 534.030. Violations of the state’s hidden ping law may recover in a civil suit the pay-Stat. Ann. § 21-6602. Secretly taking or dis- camera laws or distributing information ment of actual and punitive damages, attor-seminating video images in violation of the obtained illegally through eavesdropping ney fees and other litigation costs. La. Rev.state’s hidden camera laws are felonies. Kan. are misdemeanors punishable by up to a Stat. Ann. § 15:1312.Stat. Ann. § 21-6101. year in jail and a $500 fine. Ky. Rev. Stat. Disclosing recordings: Louisiana bars Civil suits: Anyone whose confidential Ann. §§ 532.090, 534.040. the transfer by e-mail, the Internet or acommunications are intercepted, disclosed Disclosing recordings: Using or divulg- commercial online service any photo or filmor used in violation of the state’s wiretapping ing information obtained in violation of the images obtained in violation of the state’sand eavesdropping laws may recover in a state’s eavesdropping law is a misdemeanor. video voyeurism law. La. Rev. Stat. Ann. §civil suit the payment of actual and punitive Ky. Rev. Stat. Ann. § 526.060. Further, it is a 14:283(A). The state also bars the disclosuredamages, attorney fees and other litigation felony to take visual images of a person while or use of the contents of any oral or elec-costs. Kan. Stat. Ann. §22-2518. in the nude and either divulging or distrib- tronic communication either knowing or Disclosing recordings: Divulging the uting the images via e-mail, the Internet or having reason to know it was intercepted inexistence or contents of any type of private a commercial online service. Ky. Rev. Stat. violation of the state’s eavesdropping laws.communication is a misdemeanor if the Ann. § 531.100. Anyone who inadvertently La. Rev. Stat. Ann. § 15:1303.person knows the message was intercepted hears a conversation transmitted through aillegally. Kan. Stat. Ann. § 21-6101(2). Dis- wireless telephone and proceeds to pass the Maineseminating any videotape, photo or film contents of the communication onto others Summary of statute(s): Maine bars theimage taken with a concealed camcorder without the consent of a party to the origi- recording, interception, use or disclosureused to take nude images of another person nal conversation violates the eavesdropping of any oral or telephonic communicationwithout consent is a felony. Kan. Stat. Ann. statute. Ky. Att’y Gen. Op. 84-310 (1984). by means of any mechanical or electronic§§ 21-6101(a)(7), -(b)(3). device without the consent of at least one Louisiana party to the conversation. The state alsoKentucky Summary of statute(s): Louisiana’s Elec- prohibits the recording and disclosure of Summary of statute(s): Kentucky bars tronic Surveillance Act bars the recording, images intercepted in violation of its privacythe recording, interception, use or disclo- interception, use or disclosure of any oral laws. Violators can face both civil and crimi-sure of any oral or telephonic communica- or telephonic communication by means of nal penalties.tion by means of any mechanical or elec- any mechanical or electronic device with- In-person conversations: A person can-tronic device without the consent of at least out the consent of at least one party to the not tape a private conversation with anyone party to the conversation. The state conversation. The state also prohibits the device unless he is in the range of normalalso prohibits the recording and disclosure recording and disclosure of images inter- unaided hearing, a participant in the conver-of images intercepted in violation of its cepted in violation of its video voyeurism sation or consent to record was given by atvoyeurism laws. Violators can face criminal laws. Violators can face both civil and crim- least one of the parties to the conversation.penalties. inal penalties. Me. Rev. Stat. Ann. tit. 15, § 710. In-person conversations: It is a felony to In-person conversations: A person can- Electronic communications: Similarly,overhear or record, through use of an elec- not overhear or tape a private conversation the statute prohibits the willful or inten-tronic or mechanical device, an oral com- to which that person is not openly present tional interception of any telephone or wiremunication without the consent of at least and participating or listening, unless con- communication absent the consent of atone party to that communication. Ky. Rev. sent to record is given by at least one of the least one party to the communication. Me.Stat. Ann. § 526.020. A conversation which parties to the conversation. La. Rev. Stat. Rev. Stat. Ann. tit. 15, § 710.Reporter’s Recording Guide 13
  • 14. Hidden cameras: The state’s privacy law to “any transfer of signs, signals, writing, political rally).makes it a Class D crime to use a camera images, sounds, data or intelligence of any Electronic communications: Similarly,in areas where one may reasonably expect nature,” consent likewise is required to dis- the statute makes it a felony to intercept orto be safe from video surveillance, “includ- close the contents of text or e-mail messages record any telephone or wire communica-ing, but not limited to, changing or dressing sent between wireless devices. Md. Code tion using any device unless all parties giverooms, bathrooms and similar places.” Me. Ann., Cts. & Jud. Proc. § 10-401. their consent. Mass. Gen. Laws ch. 272, §Rev. Stat. Ann. tit. 17-A, §511. The law also Hidden cameras: It is a misdemeanor to 99(C).prohibits the concealed visual surveillance use a hidden camera in a bathroom, dressing Hidden cameras: A person cannot pho-in public areas of an individual’s body either room or any area where it would be reason- tograph, videotape or use any electronicunder or through that person’s clothing able to believe the person would not be vis- device to secretly observe another person inwithout that person’s knowledge or consent. ible to the public. Md. Crim. Law §§ 3-901, the nude without consent in areas where theMe. Rev. Stat. Ann. tit. 17-A, §511(D). -02. The state’s surveillance and privacy law subject would have a reasonable expectation Criminal penalties: Illegally recording also prohibits using a camera on private of privacy. Mass. Gen. Laws ch. 272, § 105.or disclosing the contents of an oral or tele- property to secretly record or observe those Criminal penalties: Illegally eavesdrop-phone conversation is a Class C crime pun- inside. Md. Crim. Law §§ 3-903. A person ping on an oral or telephone conversation isishable by up to five years in prison and a who is viewed in violation of these statutes punishable by a fine of up to $10,000 and a$5,000 fine. Me. Rev. Stat. Ann. tit. 17-A, §§ can also file a civil suit to recover damages. jail sentence of up to five years. Mass. Gen.1251, 1301. Violation of the state’s privacy Criminal penalties: Violations of the Laws ch. 272, § 99(C). Disclosing or usinglaw is a Class D crime punishable by a jail wiretapping law are felonies punishable by the contents of such communications is asentence of less than one year and a $2,000 imprisonment for not more than five years misdemeanor punishable with a fine of upfine. Id. and a fine of not more than $10,000. Md. to $5,000 and imprisonment for up to two Civil suits: Anyone whose communica- Code Ann., Cts. & Jud. Proc. § 10-402(b). years. Id. Secretly videotaping or takingtions have been intercepted can sue for civil Violators of the hidden camera law can face photos of another person in the nude with-damages and recover the greater of $100 a misdemeanor charges with penalties that out consent is punishable by imprisonmentday for each day of violation or actual dam- include up to one year in jail and a $2,500 of up to two-and-a-half years and a $5,000ages, and also attorney fees and litigation fine. Md. Crim. Law §§ 3-901, -902, -903. fine. Mass. Gen. Laws ch. 272, § 105(b).costs. Me. Rev. Stat. Ann. tit. 15, § 711. Civil suits: The court may award actual Distribution of such photos is punishable by Disclosing recordings: Disclosure of the and punitive damages, as well as reason- up to five years in prison and a $10,000 fine.contents of intercepted communications, able attorney fees and litigation costs, to Mass. Gen. Laws ch. 272, § 105(c).knowing the information was obtained by anyone whose private communications were Civil suits: The court may award actualinterception, is a Class C violation of the recorded or disclosed in violation of the and punitive damages, as well as reason-criminal code. Me. Rev. Stat. Ann. tit. 15, state’s eavesdropping law. MD. Code Ann., able attorney fees and litigation costs, to§ 710. Cts. & Jud. Proc. § 10-410. anyone whose private communications were Disclosing recordings: The state bars the recorded or disclosed in violation of theMaryland disclosure or use of the contents of any oral, state’s eavesdropping law. Mass. Gen. Laws Summary of statute(s): Under Maryland’s telephone or electronic communication ch. 272, § 99(Q).Wiretapping and Electronic Surveillance either knowing or having reason to know Disclosing recordings: The state alsoAct, it is unlawful to tape record a conversa- it was intercepted in violation of the state’s prohibits the disclosure or use of the con-tion without the permission of all the par- eavesdropping laws. Md. Code Ann., Cts. & tents of an illegally recorded conversation,ties. Additionally, recording with criminal Jud. Proc. § 10-402. when accompanied by the knowledge that itor tortuous purpose is illegal, regardless of was obtained illegally. Mass. Gen. Laws ch.consent. The state also prohibits the record- Massachusetts 272 , § 99(C). Distributing videos or photosing and disclosure of images intercepted in Summary of statute(s): Massachusetts in violation of the state’s hidden camera lawsviolation of its privacy laws. Violators can prohibits the recording, interception, use is also prohibited. Mass. Gen. Laws ch. 272,face both civil and criminal penalties. or disclosure of any conversation, whether § 105(c). In-person conversations: The state in person or via wire or telephone, withoutrequires all parties to a conversation to give the permission of all the parties. The state Michiganconsent before one can record any private also prohibits the recording and disclosure Summary of statute(s): Michigan pro-oral conversation. Md. Code Ann., Cts. & of images intercepted in violation of its hid- hibits the recording, interception, use orJud. Proc. § 10-402. State courts have inter- den camera laws. Violators can face both disclosure of any conversation, whether inpreted the laws to protect communications civil and criminal penalties. person, telephone or via any electronic oronly when the parties have a reasonable In-person conversations: The state computer-based communication system,expectation of privacy, and thus, where a requires all parties to a conversation to give without the permission of all the parties.person in a private apartment was speak- consent before one can record any private The state also prohibits the recording anding so loudly that residents of an adjoining oral conversation. Mass. Ann. Laws ch. 272, disclosure of images intercepted in violationapartment could hear without any sound § 99(C). An appellate court has also held of its hidden camera laws. Violators can faceenhancing device, recording without the that the recorded conversation of poor audio both civil and criminal penalties.speaker’s consent did not violate the wire- quality with at least some audible words can In-person conversations: The statetapping law. Malpas v. Maryland, 695 A.2d potentially violate the wiretapping statute. requires all parties to give consent before588 (Md. Ct. Spec. App. 1997). Commonwealth v. Wright, 814 N.E.2d 741 one can record any private oral conversa- Electronic communications: Similarly, (Mass. App. Ct. 2004). The all-party con- tion. Mich. Comp. Laws § 750.539c. Thethe statute makes it a felony to intercept sent rule seemingly applies whether the eavesdropping statute has been interpretedany telephone or electronic communica- conversation is held in private or a public by one court as applying only to situationstion unless all parties give their consent. location. See Commonwealth v. Manzelli, 864 in which a third party has intercepted aMd. Code Ann., Cts. & Jud. Proc. § 10-402. N.E.2d 566 (Mass. App. Ct. 2007)(protester communication. This interpretation allowsBecause the provision of the statute deal- arrested for secretly audio taping conversa- a participant in a conversation to recording with electronic communications applies tion with police officer at a publicly held that conversation without the permission of14 The Reporters Committee for Freedom of the Press
  • 15. other parties. Sullivan v. Gray, 324 N.W.2d tion, or if one of the parties has consented criminal or tortious intent. Miss. Code Ann.58 (Mich. Ct. App. 1982). to the recording — so long as no criminal or § 41-29-531(e). Electronic communications: Similarly, tortious intent accompanies the recording. Electronic communications: The statutethe statute makes it a felony to “make any Minn. Stat. § 626A.02. prohibits the willful interception of any wireunauthorized connection with any tele- Electronic communications: A person or other communication unless that personphone or electronic communication using cannot willfully intercept or record any is either a participant or has the consent ofany device unless all parties give their telephone, wire or electronic communica- at least one party to the communication.consent.” Mich. Comp. Laws § 750.540. tion unless that person is either a participant Miss. Code Ann. § 41-29-531(e). BecauseBecause the statute dealing with electronic or has the consent of at least one party to the provision of the statute dealing withcommunications applies to the Internet or the communication. Minn. Stat. § 626A.02. “wire communications” specifically includescomputer-based communication system, Because the provision of the statute deal- within its definition not only traditionalconsent likewise is likely required to disclose ing with electronic communications applies landline telephones, but also “cellular tele-the contents of text or e-mail messages sent to “any transfer of signs, signals, writing, phones, any mobile telephone, or any com-between wireless devices. Id. images, sounds, data or intelligence of any munication conducted through the facilities Hidden cameras: It is a felony to observe, nature,” consent likewise is required to dis- of a provider of communication services,”photograph, record or eavesdrop on a per- close the contents of text or e-mail messages consent may likewise be required to discloseson in a private place where one may rea- sent between wireless devices. Id. the contents of text or e-mail messages sentsonably expect to be safe from surveillance Hidden cameras: The state’s privacy law between wireless devices. Miss. Code Ann.or intrusion without the person’s consent. prohibits trespassing on private property § 41-29-501.Mich. Comp. Laws § 750.539d. Filming on to secretly install or use any type of device Hidden cameras: The state prohibitspublic streets and parks, for instance, would for “observing, photographing, record- secretly photographing, filming or produc-not subject a person to liability under this ing, amplifying or broadcasting sounds ing any images of another person “withlaw. Neither would recording in an area or events” either another person’s home, lewd, licentious or indecent intent” withoutwhere access is granted to a substantial por- a hotel room, tanning booth or any loca- that person’s consent while in a fitting room,tion of the public, such as a hotel lobby. See tion where a person would have a reason- tanning booth or area where there would bedefinition “Private place,” Mich. Comp. able expectation of privacy and either has a reasonable expectation of privacy. Miss.Laws § 750.539a. undressed or will likely expose some part of Code Ann. § 97-29-63. Criminal penalties: Illegal eavesdropping the naked body. Minn. Stat. § 609.746. Criminal penalties: Illegally interceptingcan be punished as a felony carrying a jail Criminal penalties: Unlawful record- communications can be punished as misde-term of up to two years and a fine of up to ings, or disclosure of their contents when meanors with jail sentences up to one year$2,000. Mich. Comp. Laws § 750.539c. Any- there is reason to know the information was and fines of up to $10,000. Miss. Code Ann.one who divulges information they know obtained illegally, carry maximum penalties § 41-29-533. Disclosing the contents of suchor reasonably should know was obtained of imprisonment for five years and fines of intercepted communications is a felony pun-through illegal eavesdropping or video $20,000. Minn. Stat. § 626A.02. Violation ishable by up to five years imprisonment andsurveillance is guilty of a felony punishable of the state’s hidden camera law is a felony up to $10,000 in fines. Id. Filming a personby imprisonment for up to five years and a punishable by up to two years imprisonment in violation of the state’s hidden camera lawfine of up to $2,000. Mich. Comp. Laws §§ and a $5,000 fine. Minn. Stat. § 609.746. carries a penalty of up to five years impris-750.539c, -d. Civil suits: In addition, civil liability for onment and a $5,000 fine, but the maximum Civil suits: The court may award injunc- violations statutorily can include three times jail sentence doubles if the subject beingtive relief, as well as actual and punitive the amount of actual damages or statutory recorded is a child less than 16 years of age.damages to anyone whose private commu- damages of up to $10,000, as well as punitive Miss. Code Ann. § 97-29-63.nications were recorded or disclosed in vio- damages, litigation costs and attorney fees. Civil suits: Anyone whose communica-lation of the state’s eavesdropping law. Mich. Minn. Stat. § 626A.13. tions were intercepted, disclosed or used inComp. Laws § 750.539h. Disclosing recordings: A person may not violation of the state’s wiretapping law can Disclosing recordings: It is illegal to disclose or use the contents of any inter- seek damages through a civil suit and maydistribute, disseminate or transmit a record- cepted communication if that person either recover both actual and punitive damages,ing, photograph or visual image — as well knows or has reason to know it was obtained attorney fees and litigation costs. Miss.as the contents of any intercepted oral or in violation of the state’s wiretapping laws. Code Ann. § 41-29-529.electronic communication — which a per- Minn. Stat. § 626A.02. Disclosing recordings: It is a felony forson knows or reasonably should know was anyone who is not a law-enforcement offi-obtained through illegal eavesdropping. Mississippi cer to disclose the contents of interceptedMich. Comp. Laws § 750.539d, -e. Summary of statute(s): Mississippi bars communications for any reason other than the recording, interception, use or disclo- testifying under oath in a governmentalMinnesota sure of any oral, telephonic or other com- or court proceeding. Miss. Code Ann. § Summary of statute(s): Minnesota bars munication by means of any mechanical or 41-29-511.the recording, interception, use or disclo- electronic device without the consent ofsure of any oral, telephonic or electronic at least one party to the conversation. The Missouricommunication by means of any mechanical state also prohibits the recording and disclo- Summary of statute(s): An individualor electronic device without the consent of sure of images intercepted in violation of its who is a party to an electronic communica-at least one party to the conversation. The hidden camera laws. Violators can face both tion or who has the consent of one of thestate also prohibits the recording and disclo- civil and criminal penalties. parties to the communication, can lawfullysure of images intercepted in violation of its In-person conversations: A person can record it or disclose its contents, unless thehidden camera laws. Violators can face both record an oral communication to which person is doing so for the purpose of com-civil and criminal penalties. that person is present and participating, or mitting a criminal or tortious act. But a law- In-person conversations: It is legal for in circumstances where consent to record is ful recording of an in-person conversationa person to record an oral conversation if given by at least one of the parties, unless requires the consent of all parties. Mo. Ann.that person is a party to the communica- the interception was accompanied by a Stat. § 542.402 (West 2012).Reporter’s Recording Guide 15
  • 16. In-person conversations: It is unlawful Montana that are readily accessible to the generalto record an “oral communication,” which Summary of statute(s): It is a violation public. Neb. Rev. Stat. § 86-290 (2011).is defined as “any communication uttered of “privacy in communications” to record In-person conversations: The consentby a person exhibiting an expectation that either an in-person conversation or elec- of at least one party to a conversation issuch communication is not subject to inter- tronic communication without the consent required to record an “oral communica-ception under circumstances justifying such of all parties, except under certain cir- tion,” which is defined as “any oral com-expectation.” Mo. Ann. Stat. § 542.400. cumstances. Mont. Code Ann. § 45-8-213 munication uttered by a person exhibitingThus, a journalist does not need consent to (2011). an expectation that such communication isrecord conversations in public where there In-person conversations: It is unlawful not subject to interception under circum-is no reasonable expectation of privacy. to record a conversation “by use of a hidden stances justifying such expectation but does Electronic communications: A “wire electronic or mechanical device” without not include any electronic communication.”communication” is one that is transmitted the knowledge of all parties to the con- Neb. Rev. Stat. § 86-283. Thus, a journalistwholly or partly by the aid of “wire, cable, versation. The prohibition does not apply, does not need consent to record conversa-or other like connection between the point however, to the recording of: 1) elected or tions in public where there is no reasonableof origin and the point of reception.” Id. appointed public officials or public employ- expectation of privacy.Because a telephone conversation between ees when the recording occurs in the per- Electronic communications: The con-a person using a cellular phone and one formance of an official duty; 2) individuals sent of at least one party to any telephoneusing a regular wire phone was made in speaking at public meetings; and 3) individ- communication is required to record it. Andpart through a regular wire telephone, the uals given warning of the recording. Under because the provision of the statute deal-conversation was protected by the wiretap this final exception, if one party provides the ing with wireless communications applieslaw, a Missouri appellate court held. Lee v. warning, then either party may record the to “any transfer of signs, signals, writing,Lee, 967 S.W.2d 82 (Mo. Ct. App. 1998). conversation. Because the statute explicitly images, sounds, data, or intelligence of anyAnother state appellate court held that applies only to hidden recording devices, a nature,” consent likewise is required toradio broadcasts from cordless telephones journalist does not need consent to record disclose the contents of text messages sentare not wire communications subject to the conversations in public where there is no between wireless devices. Neb. Rev. Stat. §eavesdropping statute. Missouri v. King, 873 reasonable expectation of privacy. Id. 86-276.S.W.2d 905 (Mo. Ct. App. 1994). Thus, a Electronic communications: It likewise Hidden cameras: It is a felony to pho-journalist does not need consent to record is unlawful to record a telephone conversa- tograph or record a person “in a state ofconversations between two people using tion without the knowledge of all parties, undress” in a place where the person has acell phones or other wireless devices. And except when the communication is of an reasonable expectation of privacy. Neb. Rev.because the statute does not differentiate elected or appointed public official or public Stat. § 28-311.08. The law, however, doesbetween oral and written communications employee and occurs in the performance of not criminalize the use of recording devicestransmitted electronically, consent likewise an official duty or warning of the record- for other purposes in areas to which theis not required to disclose the contents of ing has been provided. Id. The Montana public has access or there is no reasonabletext messages sent between wireless devices. Supreme Court held that a prison’s notifi- expectation of privacy (i.e., filming conver- Hidden cameras: It is a misdemeanor to cation to inmates that their telephone con- sations on public streets or a hotel lobby).photograph or record a fully or partially versations were subject to recording satisfied Criminal penalties: Illegally recordingnude person in a place where the person has this warning requirement and thus record- an in-person conversation or electronica reasonable expectation of privacy, and to ings of a criminal defendant’s telephone communication is a felony, but the unlaw-use a hidden camera, regardless of whether conversations with others did not violate ful recording of certain types of statutorilya person has a reasonable expectation of the state wiretap law. Montana v. DuBray, 77 designated communications is only a misde-privacy, to “up-skirt” or “down-blouse,” or P.3d 247 (Mont. 2003). meanor offense if the recording is the viola-secretly photograph or record that person Hidden cameras: It is a misdemeanor to tor’s first violation of the law. Neb. Rev. Stat.under or through his or her clothing. Mo. surreptitiously photograph or record any § 86-290.Ann. Stat. § 565.253. The law, however, occupant of a home, apartment or other res- Civil suits: Anyone whose wire, electronicdoes not criminalize the use of recording idence. Mont. Code Ann. § 45-5-223. The or oral communication has been recorded ordevices for other purposes in areas to which law, however, does not criminalize the use disclosed in violation of the law can bringthe public has access or there is no reason- of recording devices in areas to which the a civil suit for such relief as a judge deemsable expectation of privacy (i.e., filming public has access or there is no reasonable appropriate, including actual damages,conversations on public streets or a hotel expectation of privacy (i.e., filming conver- attorney’s fees and court costs. Neb. Rev.lobby). sations on public streets or a hotel lobby). Stat. § 86-297. Criminal penalties: Illegally recording an Criminal penalties: Illegally recording an Disclosing recordings: Disclosing thein-person conversation or electronic com- in-person conversation or electronic com- contents of a wire, electronic or oral com-munication is a felony offense. Mo. Ann. munication is a misdemeanor offense, and munication obtained through illegal record-Stat. § 542.402. penalties increase with each conviction of ing is a felony. Neb. Rev. Stat. § 86-290. Civil suits: Anyone whose wire commu- the law. Mont. Code Ann. § 45-8-213.nication has been recorded or disclosed in Nevadaviolation of the law can bring a civil suit to Nebraska Summary of statute(s): An individualrecover the greater of actual damages, $100 Summary of statute(s): An individual who has the consent of at least one partya day for each day of violation or $10,000, who is a party to either an in-person con- to an in-person conversation can lawfullyand can recover punitive damages, attorney’s versation or electronic communication, or record it or disclose its contents, but thefees and court costs as well. Mo. Ann. Stat. who has the consent of one of the parties consent of all parties is required to record§ 542.418. to the communication, can lawfully record a telephone conversation. An exception may Disclosing recordings: Disclosing the it or disclose its contents, unless the person exist, however, for a telephone recordingcontents of a wire communication obtained is doing so for the purpose of committing a made with the prior consent of only onethrough illegal recording is a felony. Mo. criminal or tortious act. A person also can of the parties to the communication in anAnn. Stat. § 542.402. lawfully record electronic communications emergency situation in which it is impracti-16 The Reporters Committee for Freedom of the Press
  • 17. cal to obtain a court order. Nev. Rev. Stat. §§ than the recording of conversations in per- a day for each day of violation or $1,000,200.620, 200.650 (2011). son.” Lane v. Allstate Ins. Co., 969 P.2d 938 and can recover punitive damages, attorney’s In-person conversations: It is unlawful (Nev. 1998). That same court stated that the fees and court costs as well. Note that unliketo surreptitiously record “any private con- one-party-consent recording authorized in most other states’ wiretap statutes, only theversation engaged in by ... other persons” emergency situations applies mainly to law unlawful recording and not the unlawfulunless authorized to do so by one of the par- enforcement officers who proceed without a disclosure may give rise to a civil cause ofties to the conversation. Because the statute warrant. Id. at 939—40. Thus, it is unlikely action. Id.explicitly applies only to surreptitiously to serve as a defense for journalists who Disclosing recordings: Disclosing therecordings, a journalist does not need con- record phone conversations without the contents of a wire communication withoutsent to record conversations in public where required all-party consent. either the sender or receiver’s authority tothere is no reasonable expectation of privacy. Hidden cameras: It is a misdemeanor to do so, or an oral communication without theNev. Rev. Stat. § 200.650. photograph or record “the private area” of a consent of at least one party to the conversa- Electronic communications: The con- person in a place where the person has a rea- tion is a felony. Nev. Rev. Stat. §§ 200.630,sent of all parties to a telephone communi- sonable expectation of privacy, to use a hid- 200.650, 200.690.cation is required to record it. But because den camera, regardless of whether a personthe prohibition is limited to “wire commu- is in a public or private place, to “up-skirt” New Hampshirenications,” a journalist does not need con- or “down-blouse,” or secretly photograph Summary of statute(s): It is unlawful tosent to record conversations between two or record that person under or through his record either an in-person conversation orpeople using cell phones or other wireless or her clothing, and to disclose any images electronic communication or disclose itsdevices, or to disclose the contents of text obtained by these means. Nev. Rev. Stat. § contents without the consent of all parties.messages sent between wireless devices. 200.604. The law, however, does not crimi- But the violation is decreased from a felonyNev. Rev. Stat. § 200.620. nalize the use of recording devices for other to a misdemeanor offense if the violator was The Nevada Supreme Court held that the purposes in areas to which the public has a party to the communication or had oneconsent requirement is not met when an access or there is no reasonable expectation party’s prior consent to record it. N.H. Rev.individual records his or her own telephone of privacy (i.e., filming conversations on Stat. Ann. § 570-A:2 (2012).calls without the consent of all other par- public streets or a hotel lobby). In-person conversations: It is unlaw-ticipants, noting that “if the legislature had Criminal penalties: Illegally recording an ful to record “any verbal communicationwanted to [authorize the recording of tele- in-person conversation or electronic com- uttered by a person who has a reasonablephone conversations made with the consent munication is a felony offense. Nev. Rev. expectation that the communication is notof only one of the parties], it would have Stat. § 200.690. subject to interception, under circumstancesdone so. It seems apparent that the legisla- Civil suits: Anyone whose wire or oral justifying such expectation” without firstture believed that intrusion upon Nevadans’ communication has been recorded in vio- obtaining the consent of all parties engagedprivacy by nonconsensual recording of tele- lation of the law can bring a civil suit to in the conversation. N.H. Rev. Stat. Ann. §phone conversations was a greater intrusion recover the greater of actual damages, $100 570-A:1. Thus, a journalist does not need The FCC’s role In addition to state and federal laws involved in the conversation is subject to on a first offense. (Broadcast of Telephone governing the taping of phone calls, the monetary fines or an admonition under an Conversations) Federal Communications Commission FCC regulation. The Phone Rule extends to broadcast- has its own requirements concerning The “Phone Rule” states that a person ing previously recorded messages. The such taping. who intends to broadcast a conversation FCC has recently imposed fines for both The FCC requires that an individual or record a conversation for later broad- for broadcasting a recorded voicemail notify other parties to a call before using cast with another party on the telephone greetings of an individual (In the matter of a tape recorder in an interstate call. The must, at the beginning of the telephone call, Courier Communications Corp.) as well as rule requires that the individual either inform the party that the conversation will voicemail messages left on radio person- get consent from all parties before mak- be broadcast. No consent from the party is ality’s personal cell phones (In the matter ing the call, notify the participants at required. of Capstar TX Limited Partnership) the beginning of the recording, or use The Phone Rule is enforced primarily Even if the recording is not subse- a “beep tone” that is repeated regularly against radio “shock jocks,” especially those quently aired, a station can still be fined throughout the call. who call people while on the air as part of a under the rule; it is applied wherever The FCC rule only applies directly to practical joke, but the rule has been applied the recording is made with the intent to local telephone companies, but those to all kinds of broadcasters, including news broadcast (In the matter of Nassau Broad- companies are required to impose simi- gatherers. casting III, LLC). However, deciding to lar rules on the public through their FCC rulings make clear that when a per- not broadcast a recording after it has customer agreements. The only penalty son originates a call to a “call-in” talk show, become clear the party does not consent that can be enforced by the local carrier it is presumed the person knows of the pos- may become a basis for a reduction of is revocation of telephone service. (In the sibility of his or her voice being aired. (In the fines. If a program host calls and identi- Matter of Use of Recording Devices in Con- matter of Entercom New Orleans License, LLC) fies himself and his station, the FCC has nection with Telephone Service) The FCC is authorized by Congress to found that this does not inform the other Broadcasters and the Phone Rule. issue fines up to $27,500 for a single offense party that their conversation will be Broadcasting a telephone conversa- and no more than $300,000 for continuing broadcast (In the matter of REJOYNET- tion without notifying the other party violations, but may issue only admonitions WORK, LLC)Reporter’s Recording Guide 17
  • 18. consent to record conversations in public has been recorded or disclosed in violation family members, the state wiretap statutewhere there is no reasonable expectation of of the law can bring a civil suit to recover would not apply to criminalize the activityprivacy. the greater of actual damages, $100 a day because there was no indication that the Electronic communications: It is unlaw- for each day of violation or $1,000, and can plaintiff or any other person had a reason-ful to record any telephone communication recover punitive damages, attorney’s fees able expectation of privacy in their conver-without first obtaining the consent of the and court costs as well. N.H. Rev. Stat. Ann. sations in the hospital. “The record does notparticipants to the communication. And § 570-A:11. suggest that any of [the news media’s] vid-because the statute applies to “any form of Disclosing recordings: Disclosing the eotaping was done surreptitiously. In fact,information,” oral or written, transmitted contents of a wire communication obtained the footage in the two programs producedelectronically, the consent of all parties like- through illegal recording is a felony. N.H. from the videotaping at [the hospital] appearwise is required to disclose the contents of Rev. Stat. Ann. § 570-A:2. Last December, to have been taken with hand-held camerastext messages sent between wireless devices. Manchester, N.H., blogger and police- that would have been evident to any personId. accountability activist Adam Mueller who was being videotaped. Therefore, there The New Hampshire Supreme Court has was indicted on three felony wiretapping is no basis for concluding that [the newsheld that a party effectively consented to charges after he allegedly publicly disclosed organization] violated the Wiretapping Actthe recording of a communication when the the contents of recorded telephone conver- in videotaping plaintiff,” according to thesurrounding circumstances demonstrated sations he had without the other parties’ court in Kinsella v. Welch, 827 A.2d 325 (N.J.that the party knew the communication was consent to the recording. A video Mueller Super. Ct. App. Div. 2003).being recorded. New Hampshire v. Locke, allegedly posted on CopBlock.org, a website Electronic communications: The con-761 A.2d 376 (N.H. 1999); see also Fischer v. he co-founded that features videos and blogs sent of at least one party to any telephoneHooper, 732 A.2d 396 (N.H. 1999) (uphold- about police activity, depicts his telephone communication is required to record it. Anding the sufficiency of an instruction that interviews with a local police official and because the provision of the statute deal-the jury could consider, under the standard two school employees about an incident at ing with wireless communications appliesfor implied consent, not only a defendant’s the local high school but contains no indi- to “any transfer of signs, signals, writing,words but also her actions in determining cation that Mueller requested the parties’ images, sounds, data, or intelligence of anywhether she consented to the recording consent to record the conversation and post nature,” consent likewise is required toof her conversation), superseded by statute it online. Mueller is scheduled to stand trial disclose the contents of text messages senton other grounds. More recently, the state next month in Hillsborough County Supe- between wireless devices. N.J. Stat. Ann. §high court ruled that a criminal defendant rior Court and faces 21 years imprisonment 2A:156A-2.consented to the recording of a real-time if convicted of all three illegal-disclosure Hidden cameras: It is a crime of theonline conversation because he knew that charges and sentenced to the maximum third degree to photograph or record thethe recording on the other party’s computer of seven years on each count. It does not “intimate parts” of a person or one engagedof the instant message was necessary for its appear that he faces any charges related in a sexual act in a place where the personrecipient to read the communication. New solely to the actual recording rather than its has a reasonable expectation of privacy, andHampshire v. Lott, 879 A.2d 1167 (N.H. public disclosure. to disclose any images obtained by these2005). means. N.J. Stat. Ann. § 2C:14-9. The Hidden cameras: It is a misdemeanor to New Jersey law, however, does not criminalize the useinstall or use any device to: 1) photograph or Summary of statute(s): An individual of recording devices for other purposes inrecord “images or sounds” in a place where who is a party to either an in-person con- areas to which the public has access or therethere is a reasonable expectation of privacy; versation or electronic communication, or is no reasonable expectation of privacy (i.e.,2) “up-skirt” or “down-blouse,” or secretly who has the consent of one of the parties filming conversations on public streets or aphotograph or record a person, regardless of to the communication, can lawfully record hotel lobby).whether the person has a reasonable expec- it or disclose its contents, unless the person Criminal penalties: Illegally recording antation of privacy, under or through his or is doing so for the purpose of committing a in-person conversation or electronic com-her clothing; and 3) photograph or record criminal or tortious act. A person also can munication is a crime of the third degree.“images, location, movement, or sounds” lawfully record electronic communications N.J. Stat. Ann. § 2A:156A-3.originating in areas to which the public has that are readily accessible to the general Civil suits: Anyone whose wire, electronicaccess or there is no reasonable expectation public. N.J. Stat. Ann. § 2A:156A-4 (West or oral communication has been recorded orof privacy that would not ordinarily be audi- 2012). disclosed in violation of the law can bringble, visible or comprehensible in this pub- In-person conversations: The consent a civil suit to recover the greater of actuallic area. N.H. Rev. Stat. Ann § 644:9. The of at least one party to a conversation is damages, $100 a day for each day of viola-law, however, does not criminalize the use required to record an “oral communication,” tion or $1,000, and can recover punitiveof recording devices for other purposes in which is defined as “any oral communication damages, attorney’s fees and court costs asareas in which there is no reasonable expec- uttered by a person exhibiting an expecta- well. N.J. Stat. Ann. § 2A:156A-24.tation of privacy (i.e., filming conversations tion that such communication is not subject Disclosing recordings: Disclosing theon public streets or a hotel lobby). The state to interception under circumstances justify- contents of a wire, electronic or oral com-Supreme Court found that a classroom was ing such expectation, but does not include munication obtained through illegal record-not a private place where a school custodian any electronic communication.” N.J. Stat. ing is a crime of the third degree. N.J. Stat.could reasonably expect to be safe from Ann. § 2A:156A-2. Thus, a journalist does Ann. § 2A:156A-3.video surveillance. New Hampshire v. McLel- not need consent to record conversations inlan, 744 A.2d 611 (N.H. 1999). public where there is no reasonable expecta- New Mexico Criminal penalties: Illegally recording an tion of privacy. Summary of statute(s): It is an unlaw-in-person conversation or electronic com- A state appellate court held that if the news ful “interference with communications” tomunication is a felony offense. N.H. Rev. media’s videotaping of events in a hospital record a telephone conversation without theStat. Ann. § 570-A:2. emergency room for a television program consent of one of the parties to the commu- Civil suits: Anyone whose in-person recorded any oral communication between nication. But the statute does not prohibitconversation or electronic communication the plaintiff and other people, such as his recording an in-person conversation with-18 The Reporters Committee for Freedom of the Press
  • 19. out such consent. N.M. Stat. Ann. § 30-12-1 that the statute’s consent requirement refers been opened or read in violation of the wire-(West 2012). to consent to the sending of the communi- tap law without the consent of the commu- In-person conversations: Because the cation. Arnold v. New Mexico, 610 P.2d 1210 nication’s sender or receiver is consideredstatute defines the unlawful recording activ- (N.M. 1980). Thus, based on this authority, “tampering with private communications,”ity as the “cutting, breaking, tapping or a journalist should be sure to get consent to a misdemeanor. N.Y. Penal Law § 250.25.making any connection with any telegraph publish the contents of a recorded conversa-or telephone line, wire, cable or instrument tion. North Carolinabelonging to or in the lawful possession or Summary of statute(s): An individualcontrol of another, without the consent of New York who has the consent of one of the partiessuch person owning, possessing or control- Summary of statute(s): An individual to either an in-person conversation or elec-ling such property” or “reading, interrupt- who is a party to either an in-person con- tronic communication can lawfully recording, taking or copying any message, commu- versation or electronic communication, or it or disclose its contents. N.C. Gen. Stat.nication or report intended for another by who has the consent of one of the parties to Ann. § 15A-287 (West 2012).telegraph or telephone without the consent the communication, can lawfully record it In-person conversations: The consentof a sender or intended recipient thereof,” or disclose its contents. N.Y. Penal Law §§ of at least one party to a conversation isit does not apply to conversations not held 250.00, 250.05 (McKinney 2012). required to record an “oral communica-over a telegraph or telephone wire. Id. And a In-person conversations: The “mechan- tion,” which is defined as “any oral commu-state appellate court held that the transmit- ical overhearing of a conversation,” or the nication uttered by a person exhibiting antal of the contents of a face-to-face conver- “intentional overhearing or recording of a expectation that such communication is notsation recorded through a device concealed conversation or discussion, without the con- subject to interception under circumstanceson one of the participants to the conversa- sent of at least one party thereto, by a per- justifying such expectation, but the termtion was not the type of eavesdropping son not present” is illegal. N.Y. Penal Law does not include any electronic communi-activity criminalized by the state wiretap § 250.00. A state appellate court held that cation.” N.C. Gen. Stat. Ann. § 15A-286.statute. New Mexico v. Hogervorst, 566 P.2d individuals who talk in a manner such that Thus, a journalist does not need consent to828 (N.M. Ct. App. 1977). a non-participating third party may freely record conversations in public where there Electronic communications: The con- overhear the conversation may have no is no reasonable expectation of privacy.sent of at least one party to a telephone reasonable expectation of privacy in it. New Electronic communications: The con-communication is required to record it. But York v. Kirsh, 575 N.Y.S.2d 306 (N.Y. App. sent of at least one party to any telephonebecause the prohibition is limited to com- Div. 1991). Thus, a journalist does not need communication is required to record it. Andmunications via “telegraph or telephone consent to record conversations in public because the provision of the statute deal-line, wire, cable,” a journalist does not need where there is no reasonable expectation of ing with wireless communications appliesconsent to record conversations between privacy. to “any transfer of signs, signals, writing,two people using cell phones or other wire- Electronic communications: The con- images, sounds, data, or intelligence of anyless devices, or to disclose the contents of sent of at least one party to any telephone nature,” consent likewise is required totext messages sent between wireless devices. communication, including a cellular tele- disclose the contents of text messages sentN.M. Stat. Ann. § 30-12-1. phone communication, is required to record between wireless devices. Id. Hidden cameras: It is a misdemeanor to it. Sharon v. Sharon, 558 N.Y.S.2d 468 (N.Y. Interpreting the definition of “consent,” aphotograph or record “the intimate areas” Sup. Ct. 1990). And because the provision state appellate court held that implied con-of a person in a place where the person has of the statute dealing with wireless commu- sent to a recording occurs when a party isa reasonable expectation of privacy, and to nications applies to “any transfer of signs, warned of the monitoring and still contin-use a hidden camera, regardless of whether signals, writing, images, sounds, data, or ues with the conversation. North Carolina v.a person is in a public or private place, to intelligence of any nature,” consent likewise Price, 611 S.E.2d 891 (N.C. Ct. App. 2005).“up-skirt” or “down-blouse,” or secretly is required to disclose the contents of text Hidden cameras: It is a felony to photo-photograph or record that person under messages sent between wireless devices. graph or record, “for the purpose of arous-or through his or her clothing. N.M. Stat. N.Y. Penal Law § 250.00. ing or gratifying the sexual desire of any per-Ann. § 30-9-20. The law, however, does not Hidden cameras: It is a felony to photo- son,” a person in a room where the personcriminalize the use of recording devices for graph or record “the sexual or other inti- has a reasonable expectation of privacy, toother purposes in areas to which the public mate parts” of a person in a place where use a hidden camera, regardless of whetherhas access or there is no reasonable expecta- the person has a reasonable expectation of a person has a reasonable expectation oftion of privacy (i.e., filming conversations on privacy, and to use a hidden camera, regard- privacy, to “up-skirt” or “down-blouse,” orpublic streets or a hotel lobby). less of whether a person has a reasonable secretly photograph or record that person Criminal penalties: Illegally recording an expectation of privacy, to “up-skirt” or under or through his or her clothing, andelectronic communication is a misdemeanor “down-blouse,” or secretly photograph or to disclose any images obtained by theseoffense. N.M. Stat. Ann. § 30-12-1. record that person under or through his or means. N.C. Gen. Stat. Ann. § 14-202. The Civil suits: Anyone whose wire commu- her clothing. N.Y. Penal Law § 250.45. The law, however, does not criminalize the usenication has been recorded or disclosed in law, however, does not criminalize the use of recording devices for other purposes inviolation of the law can bring a civil suit to of recording devices for other purposes in areas to which the public has access or thererecover the greater of actual damages, $100 areas to which the public has access or there is no reasonable expectation of privacy (i.e.,a day for each day of violation or $1,000, is no reasonable expectation of privacy (i.e., filming conversations on public streets or aand can recover punitive damages, attorney’s filming conversations on public streets or a hotel lobby).fees and court costs as well. N.M. Stat. Ann. hotel lobby). Criminal penalties: Illegally recording an§ 30-12-11. Criminal penalties: Illegally recording an in-person conversation or electronic com- Disclosing recordings: The statute does in-person conversation or electronic com- munication is a felony offense. N.C. Gen.not specifically criminalize the disclosure munication is a felony offense. N.Y. Penal Stat. Ann. § 15A-287.of the contents of a wire communication Law § 250.05. Civil suits: Anyone whose wire, oralobtained through illegal recording. How- Disclosing recordings: Disclosing the or electronic communication has beenever, the New Mexico Supreme Court held contents of a sealed communication that has recorded or disclosed in violation of the lawReporter’s Recording Guide 19
  • 20. can bring a civil suit to recover the greater with the intent to overhear a discussion or contents of a wire or oral communica-of actual damages, $100 a day for each day conversation therein. N.D. Cent. Code § tion obtained through illegal recording isof violation or $1,000, and can recover puni- 12.1-15-02. a felony. And repeating or publishing withtive damages, attorney’s fees and court costs Electronic communications: The con- the intent to “vex, annoy, or injure others”as well. N.C. Gen. Stat. Ann. § 15A-296. sent of at least one party to a telephone the contents of a discussion or conversation Disclosing recordings: Disclosing the communication is required to record it. But overheard while unlawfully loitering aroundcontents of a wire, oral or electronic com- because the prohibition is limited to com- a building is a misdemeanor. Id.munication obtained through illegal record- munications transmitted wholly or partiallying is a felony. N.C. Gen. Stat. Ann. § 15A- through “wire, cable, or other like con- Ohio287. nection between the point of origin and Summary of statute(s): An individual the point of reception,” a journalist does who is a party to either an in-person con-North Dakota not need consent to record conversations versation or electronic communication, or Summary of statute(s): An individual between two people using cell phones or who has the consent of one of the partieswho is a party to either an in-person con- other wireless devices, or to disclose the to the communication, can lawfully recordversation or electronic communication, or contents of text messages sent between wire- it or disclose its contents, unless the personwho has the consent of one of the parties less devices. N.D. Cent. Code § 12.1-15-04. is doing so for the purpose of committingto the communication, can lawfully record Hidden cameras: It is a misdemeanor to a criminal or tortious act. Ohio Rev. Codeit or disclose its contents, unless the person enter another person’s property to photo- Ann. § 2933.52 (West 2012).is doing so for the purpose of committing a graph or record “sounds or events” from a In-person conversations: The consentcriminal or tortious act. N.D. Cent. Code § residence, and from a place where a person of at least one party to a conversation is12.1-15-02 (2011). has a reasonable expectation of privacy and required to record an “oral communica- In-person conversations: The consent has exposed his or her “intimate parts.” tion,” which is defined as “an oral commu-of at least one party to a conversation is N.D. Cent. Code § 12.1-20-12.2. The nication uttered by a person exhibiting anrequired to record an “oral communica- law, however, does not criminalize the use expectation that the communication is nottion,” which is defined as “any oral commu- of recording devices for other purposes in subject to interception under circumstancesnication uttered by a person exhibiting an areas to which the public has access or there justifying that expectation.” Ohio Rev. Codeexpectation that such communication is not is no reasonable expectation of privacy (i.e., Ann. § 2933.51. Thus, a journalist does notsubject to interception under circumstances filming conversations on public streets or a need consent to record conversations injustifying such expectation.” N.D. Cent. hotel lobby). public where there is no reasonable expecta-Code § 12.1-15-04. Thus, a journalist does Criminal penalties: Illegally recording an tion of privacy.not need consent to record conversations in in-person conversation or electronic com- Electronic communications: The con-public where there is no reasonable expec- munication is a felony offense. N.D. Cent. sent of at least one party to any telephonetation of privacy. The statute also criminal- Code § 12.1-15-02. communication is required to record it. Andizes the secret loitering around any building Disclosing recordings: Disclosing the because the provision of the statute deal- Copyright and taped interviews Under the federal Copyright Act, to be right interest, perhaps because the case was accepted transfers of copyright interest in an copyrightable, a work must possess origi- a default judgment. (Fallaci v. New Gazette interview from an interviewee to an inter- nality and be fixed in a tangible medium. Literary Corp.). viewer as valid. For that reason, a journal- Ideas cannot be copyrighted, but the In some contexts, journalists may have ist is best protected when they can secure particular expression of an idea may be. copyrights to published interviews if the work a written promise from an interviewee, Because of these requirements, much they put into assembling the material creates assigning the interviewee’s copyright inter- interview material often has a weaker a “compilation,” which is a specific type of est in the interview material to the reporter. claim to copyright. artistic work recognized by the copyright act. In 2000, a prisoner and convicted child In 1981 law student David Quinto pub- molester sued an NBC affiliate for copyright Reporter as copyright owner lished an article containing interview mate- infringement when it broadcast an interview Journalists can own a copyright interest rial about his friends’ summer legal posi- with him, without his permission. The pris- in an interview. Still, the nature of a jour- tions. Quinto sued a paper that republished oner, Arthur Taggart, argued that the inter- nalist’s copyright interest in interview his article for copyright infringement, and view was a “performance” to which Taggart material is not well-defined. he was recognized to own the material from owned rights. For example, in 1983 Italian journalist the interviews. The U.S. District Court in However, the U.S. District Court in East Oriana Fallaci won a lawsuit in the U.S. Washington, D.C., said that even if Quinto St. Louis, Ill., did not accept Taggart’s argu- District Court in New York City against did not own the underlying quotations, his ments—it held that, because ownership of a the Washington Post for publishing a “selection, arrangement, and ordering” of copyright can only belong to the individual translation of a published interview she them gave Quinto an ownership interest in who fixes an expressive work in tangible conducted with the deputy prime min- the resulting work. The court held the work form, Taggart could not claim ownership, ister of Poland, Mieczylaw Rakowski, to be a “compilation.” (Quinto v. Legal Times) among other reasons. (Taggart v. WMAQ without Fallaci’s permission. The court Channel 5) accepted that Fallaci was a copyright Interviewee as copyright owner The case is a reminder of the importance owner of the interview article, but did Interviewees may potentially be copyright of the “fixation” requirement in copyright. not describe the nature of her copy- owners in an interview, and courts have For that reason, where a journalist is not20 The Reporters Committee for Freedom of the Press
  • 21. ing with wireless communications applies Ann. § 2933.65. conversation therein. Okla. Stat. Ann. tit.to “a transfer of a sign, signal, writing, Disclosing recordings: The statute does 21, § 1202.image, sound, datum, or intelligence of not explicitly criminalize the disclosure of Electronic communications: The con-any nature,” consent likewise is required to the contents of a wire, oral or electronic sent of at least one party to any telephonedisclose the contents of text messages sent communication obtained through illegal communication is required to record it. Andbetween wireless devices. Id. recording, although “use” of such contents, because the provision of the statute deal- Hidden cameras: It is a misdemeanor to knowing or having reason to know that they ing with wireless communications appliestrespass or “otherwise surreptitiously invade were obtained unlawfully, is a felony. Ohio to “any transfer of signs, signals, writing,the privacy of another” to photograph or Rev. Code Ann. § 2933.52. images, sounds, data, or intelligence of anyrecord the person “in a state of nudity,” nature,” consent likewise is required toand to use a hidden camera, regardless of Oklahoma disclose the contents of text messages sentwhether a person has a reasonable expec- Summary of statute(s): An individual between wireless devices. Okla. Stat. Ann.tation of privacy, to “up-skirt” or “down- who is a party to either an in-person con- tit. 13, § 176.2.blouse,” or secretly photograph or record versation or electronic communication, or Hidden cameras: It is a felony to photo-that person under or through his or her who has the consent of one of the parties graph or record, “in a clandestine mannerclothing. Ohio Rev. Code Ann. § 2907.08. to the communication, can lawfully record for any illegal, illegitimate, prurient, lewd orThe law, however, does not criminalize the it or disclose its contents, unless the person lascivious purpose,” a person in a place whereuse of recording devices for other purposes is doing so for the purpose of committing a there is a reasonable expectation of privacyin areas to which the public has access or criminal or tortious act. Okla. Stat. Ann. tit. and to disclose any images obtained by thesethere is no reasonable expectation of privacy 13, § 176.4 (West 2012). means, and a misdemeanor to clandestinely(i.e., filming conversations on public streets In-person conversations: The consent photograph or record the “private area” of aor a hotel lobby). of at least one party to a conversation is person, regardless of whether the person is Criminal penalties: Illegally recording an required to record an “oral communica- in a public or private place. Okla. Stat. Ann.in-person conversation or electronic com- tion,” which is defined as “any communi- tit. 21, § 1171. The law, however, does notmunication is a felony offense. Ohio Rev. cation uttered by a person exhibiting an criminalize the use of recording devices forCode Ann. § 2933.52. expectation that such communication is not other purposes in areas to which the public Civil suits: Anyone whose wire, oral subject to interception under circumstance has access or there is no reasonable expecta-or electronic communication has been justifying such expectation.” Okla. Stat. tion of privacy (i.e., filming conversations onrecorded or disclosed in violation of the law Ann. tit. 13, § 176.2. Thus, a journalist does public streets or a hotel lobby).can bring a civil suit to recover the greater not need consent to record conversations in Criminal penalties: Illegally recording anof actual damages, $200 a day for each day public where there is no reasonable expec- in-person conversation or electronic com-of violation or $10,000, punitive damages, tation of privacy. The statute also criminal- munication is a felony offense. Okla. Stat.attorney’s fees, court costs and other relief izes the secret loitering around any building Ann. tit. 13, § 176.3.a judge deems appropriate. Ohio Rev. Code with the intent to overhear a discussion or Disclosing recordings: Disclosing theresponsible for recording an interview, but using material from a taped conversation, a interview copyrights, the minister’s useinstead receives a taped interview from a journalist is likely to have a strong argument was held to be protected as a fair use.third party, they do not own the copyright that they are entitled to use the material, According to U.S. District Court inin the material when they use it. because of First Amendment principles and New York City, the four fair use factors For example, in a 2012 case heard by the the “fair use” doctrine. weighed in the minister’s favor. TheU.S. District Court in New York City, a con- For example, a 1981 Jerry Falwell lawsuit court found, in addition to the conserva-ference call between Swatch executives and against Penthouse Magazine for copyright tive minister’s use being transformative,securities analysts, recorded by Swatch, was infringement shows that courts may find an his using only minimal content, and hisobtained from a third party and published interviewee’s claim to copyright ownership not interfering with the market value ofby Bloomberg L.P.. Swatch sued Bloom- offensive to the First Amendment. Falwell Maxtone-Graham’s out-of-print book,berg, arguing that Bloomberg had infringed sued Penthouse for publishing material from that the interview material itself shouldits copyright interest in the conversation. a Falwell interview without his consent. be more available for the public’s useThe court, though noting that “[t]he com- The U.S. District Court in Lynchburg, Va., than other copyrighted work. The courtments and questions of the securities ana- rejected his common-law copyright claim, described the work as “essentially repor-lysts are not copyrightable,” assumed that and called the argument a “broad-based torial” and “source material.” whichSwatch could own a copyright in their own attack on . . . principles of freedom of speech should be available for “liberal, but fair,tape-recorded conversation — but said that and press which are essential to a free soci- use.” (Katrina Maxtone-Graham v. JamesBloomberg’s publication would be autho- ety.” (Falwell v. Penthouse International Ltd.) Tunstead Burchtaell).rized under the fair use doctrine. Because In addition, journalists will often be This case illustrates that fair use, whileof the largely factual nature of the tape- able to use interview material under the always a context-sensitive decision, oftenrecording, the court described Swatch as fair use doctrine. In 1986 author Katrina favors reporters’ rights to use materialpossessing only a “thin copyright.” (Swatch Maxtone-Graham sued a conservative they tape-record for reporting. InterviewManagement v. Bloomberg L.P.). minister who published excerpts from her material, which contain facts and ideas, work Pregnant by Mistake in his own schol- is considered more available for fair useFirst Amendment and fair use arly work. Pregnant by Mistake is a book than other copyrighted material underdefenses of interviews with women in unwanted the second factor of fair use doctrine, If an interviewee or other entity sues a pregnancies. which examines the nature of the copy-journalist for copyright infringement for Although Maxtone-Graham owned the righted work.Reporter’s Recording Guide 21
  • 22. contents of a wire, oral or electronic com- able expectation of privacy. Or. Rev. Stat. which the public has access or there is nomunication obtained through illegal record- Ann. § 163.700. The law, however, does not reasonable expectation of privacy (i.e., film-ing is a felony. Okla. Stat. Ann. tit. 13, § criminalize the use of recording devices for ing conversations on public streets or a hotel176.3. And repeating or publishing with other purposes in areas to which the public lobby).the intent to “vex, annoy, or injure others” has access or there is no reasonable expecta- Criminal penalties: Illegally recording anthe contents of a discussion or conversation tion of privacy (i.e., filming conversations on in-person conversation or electronic com-overheard while unlawfully loitering around public streets or a hotel lobby). munication is a felony offense. 18 Pa. Cons.a building is a misdemeanor. Okla. Stat. Criminal penalties: Illegally recording an Stat. Ann. § 5703.Ann. tit. 21, § 1202. in-person conversation or electronic com- Civil suits: Anyone whose wire, electronic munication is a misdemeanor offense. Or. or oral communication has been recorded orOregon Rev. Stat. Ann. § 165.540. disclosed in violation of the law can bring Summary of statute(s): An individual Civil suits: Anyone whose wire, electronic a civil suit to recover the greater of actualwho is a party to an electronic communica- or oral communication has been recorded or damages, $100 a day for each day of viola-tion, or who has the consent of one of the disclosed in violation of the law can bring tion, or $1,000, and can recover punitiveparties to the communication, can lawfully a civil suit to recover the greater of actual damages, attorney’s fees and court costs asrecord it or disclose its contents. But a law- damages, $100 a day for each day of viola- well. 18 Pa. Cons. Stat. Ann. § 5725. Theful recording of an in-person conversation tion or $1,000, and can recover punitive statute also allows any provider of an elec-requires that all parties be informed, except damages and attorney’s fees as well. Or. Rev. tronic communication service, subscriberunder certain circumstances. A person also Stat. Ann. § 133.739. or customer aggrieved by a violation of thecan lawfully record electronic communica- Disclosing recordings: Disclosing the law to sue and recover such relief as may betions that are readily accessible to the gen- contents of an in-person conversation or appropriate, including damages, attorney’seral public. Or. Rev. Stat. Ann. § 165.540 electronic communication obtained through fees and court costs. 18 Pa. Cons. Stat. Ann.(West 2012). illegal recording is a misdemeanor. Or. Rev. § 5747. In-person conversations: It is unlawful Stat. Ann. § 165.540. Disclosing recordings: Disclosing theto record a “conversation,” which is defined contents of a wire, electronic or oral com-as “the transmission between two or more Pennsylvania munication obtained through illegal record-persons of an oral communication which is Summary of statute(s): It is unlawful to ing is a felony. 18 Pa. Cons. Stat. Ann. §not a telecommunication or a radio com- record either an in-person conversation or 5703.munication,” unless all participants to the electronic communication without the con-conversation are specifically informed that sent of all parties. 18 Pa. Cons. Stat. Ann. § Rhode Islandit is being recorded. Or. Rev. Stat. Ann. §§ 5704 (West 2012). Summary of statute(s): An individual165.535, 165.540. The prohibition does not In-person conversations: It is unlawful who is a party to either an in-person con-apply, however, to individuals who record to record an “oral communication,” which is versation or electronic communication, orwith an unconcealed recording device state- defined as “any oral communication uttered who has the consent of one of the parties toments that are part of any of the following by a person possessing an expectation that the communication, can lawfully record it,proceedings: 1) public or semipublic meet- such communication is not subject to inter- unless the person is doing so for the purposeings, such as hearings before governmental ception under circumstances justifying such of committing a criminal or tortious act. Aor quasi-governmental bodies, trials, press expectation” without first obtaining the person also can lawfully disclose the con-conferences, public speeches, rallies and consent of all parties engaged in the con- tents of face-to-face conversations or elec-sporting or other events; 2) regularly sched- versation. 18 Pa. Cons. Stat. Ann. § 5702. tronic communications that have becomeuled classes or similar educational activities Thus, a journalist does not need consent to common knowledge or public information.in public or private institutions; or 3) pri- record conversations in public where there R.I. Gen. Laws § 11-35-21 (2012).vate meetings or conferences if all others is no reasonable expectation of privacy. In-person conversations: The consentinvolved knew or reasonably should have Electronic communications: It is unlaw- of at least one party to a conversation isknown that the recording was being made. ful to record any telephone communication required to record an “oral communica-Or. Rev. Stat. Ann. § 165.540. A state appel- without first obtaining the consent of the tion,” which is defined as “any oral commu-late court held that the all-party notification participants to the communication. And nication uttered by a person exhibiting anrequired to record an in-person conversa- because the provision of the statute deal- expectation that the communication is nottion did not impermissibly burden the news ing with wireless communications applies subject to interception under circumstancesmedia in violation of the First Amendment to “any transfer of signs, signals, writing, justifying that expectation, but the termbecause it did not restrict a journalist’s right images, sounds, data or intelligence of any does not include any electronic communica-to communicate with individuals or gather nature,” consent likewise is required to tion.” R.I. Gen. Laws § 12-5.1-1. Thus, anews. Oregon v. Knobel, 777 P.2d 985 (Or. Ct. disclose the contents of text messages sent journalist does not need consent to recordApp. 1989). between wireless devices. Id. conversations in public where there is no Electronic communications: The con- Hidden cameras: It is a misdemeanor to reasonable expectation of privacy.sent of at least one party to any telephone photograph or record a fully or partially Electronic communications: The con-communication is required to record it. And nude person in a place where the person has sent of at least one party to any telephonebecause the provision of the statute dealing a reasonable expectation of privacy, to use a communication is required to record it. Andwith wireless communications applies to the hidden camera, regardless of whether a per- because the provision of the statute deal-transmission of “writing, signs, signals, pic- son has a reasonable expectation of privacy, ing with wireless communications appliestures and sounds of all kinds,” consent like- to “up-skirt” or “down-blouse,” or secretly to “any transfer of signs, signals, writing,wise is required to disclose the contents of photograph or record that person under or images, sounds, data, or intelligence of anytext messages sent between wireless devices. through his or her clothing, and to transmit nature,” consent likewise is required toOr. Rev. Stat. Ann. §§ 165.535, 165.540. any images obtained by these means. 18 Pa. disclose the contents of text messages sent Hidden cameras: It is a misdemeanor to Cons. Stat. Ann. § 7507.1. The law, how- between wireless devices. Id.photograph or record a person “in a state of ever, does not criminalize the use of record- Hidden cameras: It is a crime to pho-nudity” in a place where there is a reason- ing devices for other purposes in areas to tograph or record the “intimate areas” of22 The Reporters Committee for Freedom of the Press
  • 23. a person in a place where the person has a or invade the privacy of others. The statute cation, whether in person or by telephone,reasonable expectation of privacy, to dis- does not apply, however, to “any bona fide to the recording removes it from the typeclose any images obtained by these means, news gathering activities.” S.C. Code Ann. § of interception prohibited by the state wire-and to look into and take images of, “for 16-17-470. A state appellate court found the tap statute. South Dakota v. Braddock, 452the purpose of sexual arousal, gratification “peeping tom” statute inapplicable to the N.W.2d 785 (S.D. 1990).or stimulation,” the interior of an occupied conduct of newspaper reporters who tried Hidden cameras: It is a misdemeanor todwelling. R.I. Gen. Laws § 11-64-2. The to overhear city council proceedings dur- use a hidden camera in a place where onelaw, however, does not criminalize the use ing a closed executive session because the may reasonably expect to be safe from intru-of recording devices for other purposes in reporters were on public property — not the sion or surveillance. S.D. Codified Laws §§areas to which the public has access or there premises of another — and did nothing “to 22-21-1, 22-1-2. The law, however, does notis no reasonable expectation of privacy (i.e., enable them to overhear what was going on criminalize the use of such recording devicesfilming conversations on public streets or a in the executive session other than to wait in areas to which the public has access orhotel lobby). in the place provided as a waiting room for there is no reasonable expectation of privacy Criminal penalties: One who illegally reporters and other members of the public.” (i.e., filming conversations on public streetsrecords an in-person conversation or elec- Neither the overhearing nor the publication or a hotel lobby).tronic communication faces a maximum of of anything overheard violated the statute, Criminal penalties: Illegally recording anfive years imprisonment. R.I. Gen. Laws § according to the court in Herald Publishing in-person conversation or electronic com-11-35-21. Co., Inc. v. Barnwell, 351 S.E.2d 878 (S.C. munication is a felony offense. S.D. Codi- Civil suits: Anyone whose wire, electronic Ct. App. 1986). fied Laws § 23A-35A-20.or oral communication has been recorded or Criminal penalties: Illegally recording andisclosed in violation of the law can bring in-person conversation or electronic com- Tennesseea civil suit to recover the greater of actual munication is a felony offense. S.C. Code Summary of statute(s): An individualdamages, $100 a day for each day of viola- Ann. § 17-30-20. who is a party to either an in-person con-tion or $1,000, and can recover punitive Civil suits: Anyone whose wire, oral versation or electronic communication, ordamages, attorney’s fees and court costs as or electronic communication has been who has the consent of one of the parties towell. R.I. Gen. Laws § 12-5.1-13. recorded or disclosed in violation of the law the communication, can lawfully record it, Disclosing recordings: One who dis- can bring a civil suit to recover the greater unless the person is doing so for the purposecloses the contents of a wire, electronic or of actual damages, $500 a day for each day of committing a criminal or tortious act. Aoral communication obtained through ille- of violation or $25,000, punitive damages, person also can lawfully record electronicgal recording faces a maximum of five years attorney’s fees, court costs and other relief communications that are readily accessibleimprisonment. R.I. Gen. Laws § 11-35-21. a judge deems appropriate. S.C. Code Ann. to the general public. Tenn. Code Ann. § § 17-30-135. 39-13-601 (West 2012).South Carolina Disclosing recordings: Disclosing the In-person conversations: The consent Summary of statute(s): An individual contents of a wire, oral or electronic com- of at least one party to a conversation iswho is a party to either an in-person conver- munication obtained through illegal record- required to record an “oral communica-sation or electronic communication, or who ing is a felony. S.C. Code Ann. § 17-30-20. tion,” which is defined as “any oral commu-has the consent of one of the parties to the nication uttered by a person exhibiting ancommunication, can lawfully record it. S.C. South Dakota expectation that the communication is notCode Ann. § 17-30-30 (2011). Summary of statute(s): An individual subject to interception under circumstances In-person conversations: The consent who is a party to either an in-person conver- justifying that expectation.” Tenn. Codeof at least one party to a conversation is sation or electronic communication, or who Ann. § 40-6-303. Thus, a journalist doesrequired to record an “oral communica- has the consent of one of the parties to the not need consent to record conversations intion,” which is defined as “any oral commu- communication, can lawfully record it. S.D. public where there is no reasonable expecta-nication uttered by a person exhibiting an Codified Laws § 23A-35A-20 (2012). tion of privacy.expectation that the communication is not In-person conversations: The consent Electronic communications: The con-subject to interception under circumstances of at least one party to a conversation is sent of at least one party to any telephonejustifying the expectation and does not mean required to record an “oral communica- communication, including one transmittedany public oral communication uttered at a tion,” which is defined as “any oral commu- wholly or partly by a cellular telephone, ispublic meeting or any electronic communi- nication uttered by a person exhibiting an required to record it. And because the pro-cation.” S.C. Code Ann. § 17-30-15. Thus, expectation that such communication is not vision of the statute dealing with wirelessa journalist does not need consent to record subject to interception under circumstances communications applies to “any transfer ofconversations in public where there is no justifying such expectation.” S.D. Codified signs, signals, writing, images, sounds, datareasonable expectation of privacy. Laws § 23A-35A-1. Thus, a journalist does or intelligence of any nature,” consent like- Electronic communications: The con- not need consent to record conversations in wise is required to disclose the contents ofsent of at least one party to any telephone public where there is no reasonable expecta- text messages sent between wireless devices.communication is required to record it. And tion of privacy. Tenn. Code Ann. §§ 40-6-303, 39-13-604.because the provision of the statute deal- Electronic communications: The con- Hidden cameras: It is a misdemeanoring with wireless communications applies sent of at least one party to a telephone to photograph or record, “for the purposeto “any transfer of signs, signals, writing, communication is required to record it. But of sexual arousal or gratification,” a personimages, sounds, data, or intelligence of any because the prohibition is limited to “wire when the person has a reasonable expecta-nature,” consent likewise is required to communications,” a journalist does not need tion of privacy if the image “would offenddisclose the contents of text messages sent consent to record conversations between or embarrass an ordinary person” whobetween wireless devices. Id. two people using cell phones or other wire- appeared in the photograph, and a felony to Hidden cameras: It is a misdemeanor less devices, or to disclose the contents of text disclose to any person the image obtained byto eavesdrop or be a “peeping tom” on the messages sent between wireless devices. Id. these means. Tenn. Code Ann. § 39-13-605.premises of another. A “peeping tom” is one The state Supreme Court has held that the The law, however, does not criminalize thewho uses audio or video equipment to spy on consent of one participant to any communi- use of recording devices for other purposesReporter’s Recording Guide 23
  • 24. in areas to which the public has access or or gratify the sexual desire of any person,” the communication, can lawfully record it,there is no reasonable expectation of privacy and to disclose any images obtained by these unless the person is doing so for the purpose(i.e., filming conversations on public streets means. Tex. Penal Code Ann. § 21.15. The of committing a criminal or tortious act. Aor a hotel lobby). law, however, does not criminalize the use person also can lawfully record electronic Criminal penalties: Illegally recording an of recording devices for other purposes in communications that are readily accessiblein-person conversation or electronic com- areas to which the public has access or there to the general public. Utah Code Ann. §munication is a felony offense. Tenn. Code is no reasonable expectation of privacy (i.e., 77-23a-4 (West 2012).Ann. § 39-13-602. filming conversations on public streets or a In-person conversations: The consent Civil suits: Anyone whose wire, oral hotel lobby). The state’s highest court for of at least one party to a conversation isor electronic communication has been criminal cases recently held that the statu- required to record an “oral communica-recorded or disclosed in violation of the law tory prohibition on photographing or vid- tion,” which is defined as “any oral commu-can bring a civil suit to recover the greater eotaping a person in public without that nication uttered by a person exhibiting anof actual damages, $100 a day for each day person’s consent with the intent to arouse expectation that the communication is notof violation or $10,000, and can recover or gratify a sexual desire did not implicate, subject to interception, under circumstancespunitive damages, attorney’s fees and court much less violate, a defendant’s free-speech justifying that expectation.” Utah Codecosts as well. The statute also allows anyone rights because the statute was not a regula- Ann. § 77-23a-3. Thus, a journalist doeswhose wire, oral or electronic communica- tion of speech or the contents of a visual not need consent to record conversations intion is or is about to be recorded or disclosed image but rather a regulation of the photog- public where there is no reasonable expecta-in violation of the law to seek to enjoin and rapher’s or videographer’s intent in creating tion of privacy.restrain the violation in addition to suing for the image. Ex parte Nyabwa, 366 S.W.3d 710 Electronic communications: The con-damages. Tenn. Code Ann. § 39-13-603. (Tex. Crim. App. 2012). sent of at least one party to any telephone Disclosing recordings: Disclosing the Criminal penalties: Illegally recording an communication is required to record it. Andcontents of a wire, oral or electronic commu- in-person conversation or electronic com- because the provision of the statute deal-nication obtained through illegal recording is munication is a felony offense. Tex. Penal ing with wireless communications appliesa felony. Tenn. Code Ann. § 39-13-602. Code Ann. § 16.02. to “any transfer of signs, signals, writings, Civil suits: Anyone whose wire, oral images, sounds, data, or intelligence of anyTexas or electronic communication has been nature,” consent likewise is required to Summary of statute(s): An individual recorded or disclosed in violation of the law disclose the contents of text messages sentwho is a party to either an in-person con- can bring a civil suit to recover $10,000 for between wireless devices. Id.versation or electronic communication, or each occurrence, actual damages in excess Hidden cameras: It is a misdemeanorwho has the consent of one of the parties to of $10,000, punitive damages, attorney’s to install or use a hidden camera or audiothe communication, can lawfully record it, fees and court costs. Under the statute, recorder in a place where one may reason-unless the person is doing so for the purpose an aggrieved person also is entitled to an ably expect to be safe from intrusion or sur-of committing a criminal or tortious act. A injunction prohibiting further unlawful veillance, and to use a device for recordingperson also can lawfully record electronic interception or disclosure. Tex. Civ. Prac. & sounds originating in the place that wouldcommunications that are readily accessible Rem. Code Ann. § 123.004. not ordinarily be audible or comprehen-to the general public. Tex. Penal Code Ann. The U.S. Court of Appeals in New Orleans sible outside. Utah Code Ann. §§ 76-9-§ 16.02 (Vernon 2011). (5th Cir.) held in 2000 that a television sta- 402, 76-9-401. The law, however, does not In-person conversations: The consent tion and reporter who obtained illegally criminalize the use of recording devices forof at least one party to a conversation is recorded tapes of telephone conversations, other purposes in areas to which the publicrequired to record an “oral communica- but who had not participated in the illegal has access or there is no reasonable expecta-tion,” which is defined as “any oral com- recording, could nonetheless be held civilly tion of privacy (i.e., filming conversations onmunication uttered by a person exhibiting liable under the federal and Texas wiretap public streets or a hotel lobby).an expectation that the communication is statutes. Peavy v. WFAA-TV, Inc., 221 F.3d Criminal penalties: Illegally recordingnot subject to interception under circum- 158 (5th Cir. 2000). The case was appealed an in-person conversation or electronicstances justifying that expectation.” Tex. to the U.S. Supreme Court, along with communication is a felony, except whereCode Crim. Proc. Ann. art. 18.20. Thus, a two other cases raising similar issues. The the communication is the radio portion of ajournalist does not need consent to record Supreme Court refused to hear the Texas cellular telephone communication. In thoseconversations in public where there is no case but decided in one of the other cases, cases, the violation is only a misdemeanorreasonable expectation of privacy. Bartnicki v. Vopper, 532 U.S. 514 (2001), offense. Utah Code Ann. § 77-23a-4. Electronic communications: The con- that media defendants could not be held Civil suits: Anyone whose wire, electronicsent of at least one party to any telephone liable for publishing information of public or oral communication has been recorded orcommunication is required to record it. And concern that was obtained unlawfully by a disclosed in violation of the law, or any elec-because the provision of the statute dealing source where the media were blameless in tronic communications service, subscriberwith wireless communications applies to “a the illegal interception. Following the Bart- or customer aggrieved by a violation of thetransfer of signs, signals, writing, images, nicki decision, the parties in the Peavy case law, can bring a civil suit to recover suchsounds, data, or intelligence of any nature,” settled out of court. relief as may be appropriate, including dam-consent likewise is required to disclose the Disclosing recordings: Disclosing the ages, attorney’s fees and court costs. Utahcontents of text messages sent between contents of a wire, oral or electronic com- Code Ann. §§ 77-23a-11, 77-23b-8.wireless devices. Id. munication obtained through illegal record- Disclosing recordings: Disclosing the Hidden cameras: It is a felony to pho- ing is a felony. Tex. Penal Code Ann. § 16.02. contents of a wire, electronic or oral com-tograph or record a person without the munication obtained through illegal record-person’s consent in a public place “with Utah ing is a felony. Utah Code Ann. § 77-23a-4.the intent to arouse or gratify the sexual Summary of statute(s): An individualdesire of any person,” or in a bathroom or who is a party to either an in-person con- Vermontprivate dressing room “with the intent to versation or electronic communication, or There are no specific statutes in Ver-invade the privacy of the person, or arouse who has the consent of one of the parties to mont addressing the interception of audio24 The Reporters Committee for Freedom of the Press
  • 25. communications, but the state Supreme by these means. Vt. Stat. Ann. tit. 13, § expectation of privacy.Court has held that surreptitious elec- 2605 (2012). The law, however, does not Electronic communications: The con-tronic monitoring of communications in criminalize the use of recording devices for sent of at least one party to any telephonea person’s home is an unlawful invasion of other purposes in areas to which the public communication is required to record it. Andprivacy. Vermont v. Geraw, 795 A.2d 1219 has access or there is no reasonable expecta- because the provision of the statute deal-(Vt. 2002). On the other hand, there is no tion of privacy (i.e., filming conversations on ing with wireless communications appliesobjective, reasonable expectation of privacy public streets or a hotel lobby). to “any transfer of signs, signals, writing,in a hospital’s emergency treatment area, images, sounds, data, or intelligence of anythrough which medical personnel, hospital Virginia nature,” consent likewise is required tostaff, patients and their families and emer- Summary of statute(s): An individual disclose the contents of text messages sentgency workers, including police officers, who is a party to either an in-person con- between wireless devices. Id.“frequently, and not unexpectedly” freely versation or electronic communication, or Hidden cameras: It is a misdemeanor tomove, the state high court later held in Ver- who has the consent of one of the parties to photograph or record a fully or partiallymont v. Rheaume, 889 A.2d 711 (Vt. 2005). the communication, can lawfully record it or nude person, and to “up-skirt” or “down-Similarly, the recording of a conversation disclose its contents. Va. Code Ann. § 19.2- blouse,” or secretly photograph or record ain a parking lot is not unlawful because the 62 (West 2012). person under or through his or her clothing,conversation was “subject to the eyes and In-person conversations: The consent in a place where the person has a reason-ears of passersby.” Vermont v. Brooks, 601 of at least one party to a conversation is able expectation of privacy. Va. Code Ann.A.2d 963 (Vt. 1991). required to record an “oral communica- § 18.2-386.1. The law, however, does not Vermont has a voyeurism statute that tion,” which is defined as “any oral com- criminalize the use of recording devices forcriminalizes photographing or recording the munication uttered by a person exhibiting other purposes in areas to which the public“intimate areas” of a person or one engaged an expectation that such communication is has access or there is no reasonable expecta-in a sexual act in a place where the person not subject to interception under circum- tion of privacy (i.e., filming conversations onhas a reasonable expectation of privacy, and stances justifying such expectations but does public streets or a hotel lobby).secretly photographing or recording a per- not include any electronic communication.” Criminal penalties: Illegally recording anson in a place where the person has a rea- Va. Code Ann. § 19.2-61. Thus, a journalist in-person conversation or electronic com-sonable expectation of privacy within a resi- does not need consent to record conversa- munication is a felony offense. Va. Codedence, and disclosing any images obtained tions in public where there is no reasonable Ann. § 19.2-62. An extreme example: The California anti-paparazzi laws In 1999 California passed into law or recordings, described by the statute, also tal training purposes (Carter v. Superior an invasion of privacy statute directed subject to the statute’s penalties — to target Court). specifically at paparazzi activity. The the behavior of paparazzi when they sur- In another case in 2004, the owners anti-paparazzi statute, Cal. Civ. Code § round a celebrity and prevent them from of casting workshops in the Hollywood 1708.8, has a broader reach in the activity moving. community sued ABC News for broad- that it targets than other state’s privacy In addition, any “person who directs, casting an expose of their workshop prac- laws — and tape-recording activities can solicits, actually induces, or actually causes tices. (Turnbull v. ABC) create risks under this statute. another person” to engage in the activity ABC secretly recorded and broadcast The statute prohibits trespass onto prohibited by the paparazzi statute can also one of the workshop sessions by send- another’s property “with the intent to be held liable. The paparazzi statute imposes ing a reporter undercover, and the capture any type of visual image, sound stiff penalties on violators — for example, workshop sued ABC under the the anti- recording, or other physical impression after the court calculates a monetary award paparazzi statute. The court found that of the plaintiff engaging in a personal for the harm caused by the infringing activ- charges could be brought against ABC or familial activity” where it would be ity, the court may then impose a judgment of under the statute, because ABC might “offensive to a reasonable person.” The up to three times that amount on a violator have trespassed when they recorded California standard is stricter than the of the statute. the workshop without permission, and traditional standard in privacy law, which In 2002, R. Shaun Carter, who was filmed ABC’s activity was offensive to a reason- protects individuals from actions that are in the emergency room at a hospital in San able person — though a jury later ruled “highly offensive to a reasonable person.” Diego where he was being treated, sued the in favor of ABC. The law also creates the right to sue for New York Times Co. and Discovery Com- In addition, California Vehicle Code “constructive invasion of privacy,” or for munications Inc. under the anti-paparazzi § 40008 allows longer jail sentences engaging in the same activity described law. The California state court said that the of up to 6 months, and steeper fines of above under the statute, but without two companies could not use California’s up to $2,500, for reckless driving “with physically trespassing. Constructive anti-SLAPP statute as a defense against the intent to capture any type of visual invasion of privacy occurs when a defen- Carter’s claim. image, sound recording, or other physi- dant uses technology to capture images Carter argued that although he had signed cal impression of another person for a or sounds that would not have been oth- a consent form with the New York Times commercial purpose.” Following a 2012 erwise accessible to them without tres- reporter who videotaped him, he had been car chase involving Justin Bieber and passing. deliberately misled by the reporter. The a paparazzo, a Los Angeles prosecutor Also under the statute, one provision reporter had been dressed like hospital staff, invoked the statute for the first time makes committing an assault or false and Carter argued that he had been deceived against the paparazzo, according to news imprisonment to obtain the same images into thinking that the video was for hospi- reports.Reporter’s Recording Guide 25
  • 26. Civil suits: Anyone whose wire, electronic expressly given or if the recording or trans- conversations in public where there is noor oral communication has been recorded or mitting device is readily apparent or obvious reasonable expectation of privacy.disclosed in violation of the law can bring to the speakers.” Anyone speaking to such a The state Supreme Court held that aa civil suit to recover the greater of actual journalist who has consented cannot with- woman whose children’s screams could bedamages, $400 a day for each day of viola- draw that consent after the communication heard by neighbors nonetheless had a rea-tion or $4,000, and can recover punitive is made. Id. A Washington appellate court sonable expectation of privacy in her homedamages, attorney’s fees and court costs as held that a party has consented to a record- and thus her conversations with her childrenwell. Va. Code Ann. § 19.2-69. ing if he or she is aware that the recording is were protected by the wiretap law. W. Va. Disclosing recordings: Disclosing the taking place. Washington v. Modica, 149 P.3d Dep’t of Health & Human Res. ex rel. Wrightcontents of a wire, electronic or oral com- 446 (Wash. Ct. App. 2006). And another v. David L., 453 S.E.2d 646 (W. Va. 1994).munication obtained through illegal record- state appellate court ruled that consent to Electronic communications: The con-ing is a felony. Va. Code Ann. § 19.2-62. the recording of a real-time conversation sent of at least one party to any telephone using online discussion software is implicit communication is required to record it. AndWashington because participants know the conversations because the provision of the statute deal- Summary of statute(s): All parties to will be recorded on the other party’s com- ing with wireless communications applieseither an in-person conversation or elec- puter. Washington v. Townsend, 20 P.3d 1027 to “any transfer of signs, signals, writing,tronic communication generally must (Wash. Ct. App. 2001). images, sounds, data or intelligence of anyconsent to its recording — a requirement Hidden cameras: It is a felony to photo- nature,” consent likewise is required tothat is satisfied by one party’s reasonably graph or record, “for the purpose of arous- disclose the contents of text messages senteffective announcement, which also must ing or gratifying the sexual desire of any between wireless devices. W. Va. Code §be recorded, to all other parties that the person,” another person in a place where 62-1D-2.conversation is about to be recorded. Wash. he or she has a reasonable expectation of Hidden cameras: It is a misdemeanor toRev. Code Ann. § 9.73.030 (West 2012). privacy, and to “up-skirt” or “down-blouse,” photograph or record a fully or partially In-person conversations: It is unlawful or secretly photograph or record a per- nude person in a place where the person hasto record a “private conversation” without son, regardless of whether the person has a reasonable expectation of privacy. W. Va.first obtaining the consent of all parties a reasonable expectation of privacy, under Code § 61-8-28. The law, however, does notengaged in the conversation. Id. Courts con- or through his or her clothing. Wash. Rev. criminalize the use of recording devices forsider three main factors in deciding whether Code Ann. § 9A.44.115. The law, however, other purposes in areas to which the publica conversation is considered private and thus does not criminalize the use of recording has access or there is no reasonable expecta-protected under the wiretap law: 1) the dura- devices for other purposes in areas to which tion of privacy (i.e., filming conversations ontion and subject matter of the conversation; the public has access or there is no reason- public streets or a hotel lobby).2) the location of the conversation and pres- able expectation of privacy (i.e., filming con- Criminal penalties: Illegally recording anence or potential presence of a third party; versations on public streets or a hotel lobby). in-person conversation or electronic com-and 3) the role of the non-consenting party Criminal penalties: Illegally recording an munication is a felony offense. W. Va. Codeand his or her relationship to the consent- in-person conversation or electronic com- § 62-1D-3.ing party. Lewis v. Washington, 139 P.3d 1078 munication is a gross misdemeanor. Wash. Civil suits: Anyone whose wire, oral(Wash. 2006). And the state Supreme Court Rev. Code Ann. § 9.73.080. or electronic communication has beenhas held that the presence of another per- Civil suits: Anyone whose in-person con- recorded or disclosed in violation of the lawson during a conversation generally means versation or electronic communication has can bring a civil suit to recover the greater ofthe matter is not secret or confidential such been recorded in violation of the law can actual damages or $100 a day for each day ofthat it would qualify as private. Washington bring a civil suit to recover the greater of violation, and can recover punitive damages,v. Clark, 916 P.2d 384 (Wash. 1996). Thus, actual damages, $100 a day for each day of attorney’s fees and court costs as well. W. Va.a journalist does not need consent to record violation or $1,000, and can recover attor- Code § 62-1D-12.conversations in public where there is no ney’s fees and court costs as well. Wash. Rev. Disclosing recordings: Disclosing thereasonable expectation of privacy. Code Ann. § 9.73.060. contents of a communication obtained Electronic communications: It is unlaw- through illegal recording is a felony. W. Va.ful to record a “private communication West Virginia Code § 62-1D-3.transmitted by telephone, telegraph, radio, Summary of statute(s): An individualor other device between two or more indi- who is a party to either an in-person con- Wisconsinviduals” without first obtaining the consent versation or electronic communication, or Summary of statute(s): An individualof all participants in the communication. who has the consent of one of the parties who is a party to either an in-person con-And because the statute does not differenti- to the communication, can lawfully record versation or electronic communication, orate between oral and written private com- it or disclose its contents, unless the person who has the consent of one of the partiesmunications transmitted electronically, the is doing so for the purpose of committing to the communication, can lawfully recordconsent of all parties likewise is required to a criminal or tortious act. W. Va. Code § it or disclose its contents, unless the persondisclose the contents of text messages sent 62-1D-3 (2012). is doing so for the purpose of committing abetween wireless devices. Wash. Rev. Code In-person conversations: The consent criminal or tortious act. Wis. Stat. Ann. §Ann. § 9.73.030. of at least one party to a conversation is 968.31 (West 2011). Under the statute, a journalist employed by required to record an “oral communica- In-person conversations: The consent of“any regularly published newspaper, maga- tion,” which is defined as “any oral commu- at least one party to a conversation is requiredzine, wire service, radio station, or television nication uttered by a person exhibiting an to record an “oral communication,” which isstation acting in the course of bona fide news expectation that such communication is not defined as “any oral communication utteredgathering duties on a full-time or contrac- subject to interception under circumstances by a person exhibiting an expectation thattual or part-time basis” is deemed to have justifying such expectation, but such term the communication is not subject to inter-the requisite consent to record and divulge does not include any electronic communi- ception under circumstances justifying thethe contents of in-person conversations or cation.” W. Va. Code § 62-1D-2. Thus, a expectation.” Wis. Stat. Ann. § 968.27. Thus,electronic communications “if the consent is journalist does not need consent to record a journalist does not need consent to record26 The Reporters Committee for Freedom of the Press
  • 27. conversations in public where there is no rea- veillance device that has been installed in § 7-3-701. Thus, a journalist does not needsonable expectation of privacy. a private place to view a nude or partially consent to record conversations in public Courts consider several factors in decid- nude person. Wis. Stat. Ann. § 942.08. The where there is no reasonable expectation ofing whether an individual’s expectation law, however, does not criminalize the use privacy.of privacy in his or her oral statements is of recording devices for other purposes in Electronic communications: The con-objectively reasonable and thus protected areas to which the public has access or there sent of at least one party to any telephoneunder the wiretap law: 1) the volume of is no reasonable expectation of privacy (i.e., communication is required to record it. Andthe statements; 2) the proximity of other filming conversations on public streets or a because the provision of the statute deal-individuals to the speaker, or the potential hotel lobby). ing with wireless communications appliesfor others to overhear the speaker; 3) the Criminal penalties: Illegally recording an to “any transfer of signs, signals, writing,potential for the communications to be in-person conversation or electronic com- images, sounds, data or intelligence of anyreported; 4) the actions taken by the speaker munication is a felony offense. Wis. Stat. nature,” consent likewise is required toto ensure his or her privacy; 5) the need to Ann. § 968.31. disclose the contents of text messages sentemploy technological enhancements for one Civil suits: Anyone whose wire, electronic between wireless devices. Id.to hear the speaker’s statements; and 6) the or oral communication has been recorded or Hidden cameras: It is a felony to photo-place or location where the statements are disclosed in violation of the law can bring graph or record, in a “clandestine, surrepti-made. Wisconsin v. Duchow, 749 N.W.2d 913 a civil suit to recover the greater of actual tious, prying or secretive nature,” a person(Wis. 2008). In that case, the state Supreme damages, $100 a day for each day of viola- in an enclosed place where the person hasCourt held that, under the totality of the tion or $1,000, and can recover punitive a reasonable expectation of privacy, and tocircumstances, a school-bus driver did not damages, attorney’s fees and court costs as use a camera or any other recording device,have a reasonable expectation of privacy in well. Id. regardless of whether a person has a reason-threatening statements he made to a grade- Disclosing recordings: Disclosing the able expectation of privacy, to “up-skirt” orschool student who recorded the comments. contents of a communication obtained “down-blouse,” or secretly photograph orThe school bus was public property, being through illegal recording is a felony. Id. record that person under or through his oroperated for a public purpose, and because her clothing. Wis. Stat. Ann. § 6-4-304. Thethe statements sought to be protected were Wyoming law, however, does not criminalize the use ofthreats directed at a child being transported Summary of statute(s): An individual such recording devices for other purposes into school, the type of speech likely to be who is a party to either an in-person con- areas to which the public has access or therereported, the bus driver assumed the risk of versation or electronic communication, or is no reasonable expectation of privacy (i.e.,disclosure, the court ruled. Wis. Stat. Ann. who has the consent of one of the parties filming conversations on public streets or aat 924-25. to the communication, can lawfully record hotel lobby). Electronic communications: The con- it or disclose its contents, unless the person Criminal penalties: Illegally recording ansent of at least one party to any telephone is doing so for the purpose of committing a in-person conversation or electronic com-communication is required to record it. And criminal or tortious act. Wyo. Stat. Ann. § munication is a felony offense. Wis. Stat.because the provision of the statute deal- 7-3-702 (2012). Ann. § 7-3-702.ing with wireless communications applies In-person conversations: The consent Civil suits: Civil suits to recover damagesto “any transfer of signs, signals, writing, of at least one party to a conversation is are available only against individuals who,images, sounds, data or intelligence of any required to record an “oral communica- authorized by court order to record commu-nature,” consent likewise is required to tion,” which is defined as “any oral commu- nications, disclose to anyone the existence ofdisclose the contents of text messages sent nication uttered by a person who reasonably that recording or surveillance or device usedbetween wireless devices. Wis. Stat. Ann. § expects and circumstances justify the expec- to accomplish it. Id.968.27. tation that the communication is not subject Disclosing recordings: Disclosing the Hidden cameras: It is a misdemeanor to interception but does not include any contents of a communication obtainedto install a surveillance device or use a sur- electronic communication.” Wis. Stat. Ann. through illegal recording is a felony. Id. Citations in articles: 1981) Cases Snyder v. Phelps, 131 S.Ct. 1207 (2011) Best v. Berard, 776 F.Supp.2d. 752 (N.D. Ill. 2011) Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., No. 11 Civ. 1006 Carter v. Superior Ct. of San Diego Cnty., No. D038091, 2002 WL (AKH), 2012 WL 1759944 (S.D.N.Y. May 17, 2012) 27229 (Cal. Ct. App. Jan. 10, 2002) Taggart v. WMAQ Channel 5 Chicago, No. 00-4205-GPM, 2000 Fallaci v. New Gazette Literary Corp., 568 F.Supp. 1172 (S.D.N.Y. WL 1923322 (S.D. Ill. Oct. 30, 2000) 1983) Turnbull v. Am. Broad. Cos., No. 03-3554 SJO (FMOX), 2004 WL Falwell v. Penthouse Int’l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981) 2924590 (C.D. Cal. Aug. 19, 2004) In the matter of Nassau Broad. III, LLC, File No. EB- Turnbull v. Am. Broad. Cos., No. 03-3554 SJO (FMOX), 2005 WL 11-IH-1561 (2012) 6054964 (D.C. Cal. Mar. 7, 2005) In the matter of Rejoynetwork, LLC, File Nos. EB-06-IH-1772 Vera v. O’Keefe III, 791 F.Supp.2d 959 (S.D. Cal 2011) and EB-06-IH-1748 (2010) Maxtone-Graham v. Burtchaell, 631 F. Supp. 1432 (S.D.N.Y. Statutes 1986) Cal. Civ. Code § 1708.8 (2012) Quinto v. Legal Times of Wash., Inc., 506 F.Supp. 554 (D.D.C. Cal. Veh. Code § 40008 (2012) Copyright Act, 17 U.S.C. §§ 101 et seq. (2012).Reporter’s Recording Guide 27
  • 28. Introducing theReporters CommitteeFirstAid App The Reporters Committee FirstAid app is designed to help journalists whoneed quick answers to legal issues that arise while covering the news. It is meantas a quick solution during an urgent situation, such as when a judge or otherofficial is keeping you from a hearing or a meeting, or a police officer is threaten-ing you with arrest. More extensive assistance with media law issues is availablethrough our web site. FirstAid also provides quick access to our hotline for any media law issues,either by phone or email. The Reporters Committee and this app are available for journalists of all variet-ies, whether you work for a national news organization or a neighborhood newsblog. We never charge for our assistance. When a judge is closing his courtroom without notice, a town To find our app: clerk is telling you a public record can’t be had, or a local politician says she’ll sue you for libel if you print the truth, you need to know your rights. RCFP FirstAid is available The Reporters Committee First Aid mobile iPad, free for iPhone, app gives reporters in the field immediate accessand Kindle Android to legal resources, particularly in situations where access or newsgathering may be stymied. devices. Search for “Reporters The app also provides an instant connection to the Reporters Committee website and its 24-7 media law hotline. app Committee” in the stores. RCFP FirstAid is available free for iPhone, iPad and Android devices. Scan the QR code here to get to our own app page for links, or search for “Reporters Committee” in the app stores. Funding for the Reporters Committee First Aid App was provided by The Stanton Foundation