Alabama law requires all parties to consent to the recording of private conversations. Reporters may record in-person interviews without obtaining consent if the recording device is in plain view. However, installing hidden recording devices or engaging in secret observation on private property is illegal. Violating the state's wiretapping or eavesdropping laws carries criminal penalties like jail time. Journalists must ensure recordings are not made for illegal purposes and do not exceed the scope of any consent provided.

1. Summer 2012
Reporter’s
Recording
Guide
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 laws
Some 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 regular
be addressed first. Both federal and state statutes govern wiretapping laws in any state. And regardless of whether
the use of electronic recording equipment. The unlawful a state has a criminal law regarding cameras, undercover
use of such equipment can give rise not only to a civil suit recording in a private place can prompt civil lawsuits for
by 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 specific
utes that apply and what their rights and responsibilities provisions of each jurisdiction’s wiretap law. It outlines
are 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 legal
eavesdropping — listening in on conversations of others citations for wiretap statutes. Some references to case law
without 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 violations
in-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 order
electronic communications with the consent of at least one the violator to pay to the subject of the taping). Instances
party to the call. A majority of the states and territories where the law specifically includes cellular calls and the
have adopted wiretapping statutes based on the federal wireless portion of cordless phone calls also are noted, but
law, although most also have extended the law to cover in- many laws are purposely broad enough to encompass such
person 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 specific
which 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 see
party 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. (Nevada
also has a one-party consent statute, but the state Supreme
Court 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 for
consent of all parties to a conversation. Those jurisdic- journalists to the state of the law concerning electronic
tions are California, Connecticut, Florida, Illinois, Mary- recording and its implications. It does not take the place
land, Massachusetts, Michigan, Montana, Nevada, New of legal advice from a lawyer in your state when you are
Hampshire, Pennsylvania and Washington. Be aware that confronted with a legal problem. Journalists who have
you will sometimes hear these referred to inaccurately additional questions or who need to find a lawyer can
as “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 of
the 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 taping
a 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 attorney
close 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 Journalism
Legal 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 Reporters
Committee 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 guide
Alabama 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 while
criminal 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, does
sons 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 the
property. Those divulging illegally obtained Electronic communications: Alabama’s public has access (i.e., filming conversations
communications 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 maximum
needed 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 did
4 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 over
jail 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 at
on private property is considered a felony taking nude or partially nude pictures of least one party to the conversation. Alaska
offense carrying a prison sentence between subjects without their consent. Stat. Ann. § 42.20.310(b). That consent
one 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 wireless
obtained through illegal eavesdropping or one party to the conversation. Alaska Stat. communications applies to “any transfer of
surveillance. 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 applies
conversations 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 to
vacy, because the areas filmed were open to that the student was an employee of a tele- be in plain view — may carry the risk of
the journalists, and none of the discussions vision station. The student surreptitiously arrest. For example, in Massachusetts, an
caught 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 law
ruled 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 those
did not have a claim under New Jersey’s Hubbard Broadcasting, Inc.) recording the police with devices such
wiretapping 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 arrested
of a busy highway, the New Jersey appeals of undercover officers in filming them when under the Massachusetts wiretapping
court ruled. Moreover, police officers have they came to the doors of their residences to law for openly recording with his cell
a diminished expectation of privacy because decline to talk to news media, because this phone what he believed to be an unlawful
they hold a position of trust. Thus, the tap- conduct would not be highly offensive to a arrest on the Boston Common. Though
ing, 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 Amendment
ists 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 may
an 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 consent
nia 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 journalists
ated under California’s wiretapping statute. California case, a woman sued CBS for recording police activity with devices
Under California law, tape recording can be trespass and intrusion when a camera crew in plain view. The state’s eavesdropping
found 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 whether
will not be recorded. Notably, the report- call. The woman conceded that she had con- there is an expectation of privacy. In a
ers 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 successfully
that they were seeking a confidential dis- affiliated with the district attorney’s office. challenged the law and won a decision
cussion. The court held that the privacy The court held that the state statutes gov- which halted the statute being applied
standard 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 police
ing 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 as
be charged under the California wiretap- consent. (Baugh v. CBS) “the broadest of its kind,” has not been
ping 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 who
always a more risky venture. In a Minne- the limits of the freedom to tape when a record police activity in Illinois, even
sota case, a veterinarian making a house call device is in plain view. Use of these devices when they use recording devices that
obtained 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 has
picture 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 telephone
Stat. 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 not
eavesdropping 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 radio
Stat. 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 camera
adult, and a felony if the subject is a minor. contents of any oral or electronic com- or “image recording device” to secretly view
Alaska 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 public
intercepts 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 or
communication a person knows or reason- from six months to more than two years in electronic communications without consent
ably should know was obtained illegally can- prison. See Ariz. Rev. Stat. Ann. §§ 13-702, is a misdemeanor punishable by up to a year
not 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. Violation
Arizona 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 Internet
tronic communication. Intercepting such Ann. § 12-731. In some cases, the court can of video recordings, film or photograph in
conversations 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 California
civil 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. This
required 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 phone
intercepted. 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 intent
state’s eavesdropping law by recording a area without consent. of capturing photos. The state’s vehicle code
conversation between him and his girlfriend In-person conversations: At least one similarly penalizes those who interfere with
without his consent was meritless because party must give consent in order to record drivers of vehicles in pursuit of images or
the 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 to
zona v. Hauss, 688 P.2d 1051 (Ariz. Ct. App. Code Ann. § 5-60-120. In some instances, any confidential communication must give
1984). Therefore, recording in public places the court may find implied consent. For permission to be recorded, according to
such as streets or parks is allowed absent any example, in 1999, the U.S. Court of Appeals California’s eavesdropping law. Cal. Penal
consent. (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 any
son 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 circumstances
including wireless or cellular calls, without the mother knew some of her conversations where the participants of the conversation
the consent of at least one party to the con- with the facility’s employees were being could reasonably expect to be overheard
versation, 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 the
the statute dealing with wireless commu- intercepting any wire, landline, cellular or intent of capturing photographic images or
nications applies to “any transfer of signs, cordless phone conversation is illegal unless sound recordings of people in “personal or
6 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 to
ing 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 statute
Cal. Civil Code § 1708.8(c). Similarly, the its the intentional disclosure of the contents carry similar penalties, while violators of the
state’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 to
feres 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 illegal
another person for a commercial purpose.” wiretapping is a felony, if there is reason to
Cal. 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 conversation
tionally tap or make any unauthorized con- must have the consent of at least one party Connecticut
nection to intercept telephone conversa- in order to legally record either an oral or Summary of statute(s): Connecticut
tions or to read the contents of any messages electronic communication. Intercepting requires at least one party’s consent to record
without the consent of all parties involved in in-person conversations without consent is an in-person conversation, and the consent
such 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 that
conduct statute prohibits the use of “a con- communications without at least one party’s person’s consent or knowledge when there is
cealed 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 not
secretly record a person while in a dressing under the state’s wiretapping law. present at a conversation must obtain the
room, tanning booth or while in any area In-person conversations: The consent of consent of at least one participant before
where the person has a reasonable expecta- at least one participant to a conversation is any recording can take place under the
tion 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 illegal
camera 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 to
v. Gibbons, 215 Cal. App. 3d 1204 (Cal. Ct. statutes, stating that its laws are not to be the call. Consent should be given prior to
App. 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 that
People 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 voyeurism
communication). Stat. § 18-9-305. law prohibits knowingly photographing,
Criminal penalties: A first offense of Electronic communications: The con- filming or recording in any way another
eavesdropping or wiretapping is punishable sent of at least one party is required to person’s image without consent in situations
by 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 the
intercepted telephone conversations could nications applies to “any transfer of signs, state’s eavesdropping and voyeurism laws, as
lead 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 by
the 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 parties
ties 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: Connecticut
messages can recover civil damages of $5,000 photography has a reasonable expectation of prohibits disseminating recorded images
or three times actual damages, whichever is privacy. Colo. Rev. Stat. § 18-7-801. of another person in violation of the state’s
greater. 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 violations
use of illegally obtained information. Cal. of the state’s wiretapping statute are both Delaware
Penal 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 least
times 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-person
ages, 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 oral
the laws. A state privacy law makes it illegal ute prohibits installing a camera or other or electronic communication if that person
to 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’s
tit. 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 dressing
privacy law, an individual can record his own or undressing in a private place. Del. Code District of Columbia
conversations. United States v. Vespe, 389 F. Ann. tit. 11, § 1335(a)(6), -(7). Summary of statute(s): In the District
Supp. 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 consent
at 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 images
interception 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 also
Code 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 tographers
person is allowed to record or intercept individuals undressing in a private place is In-person conversations: The consent
any 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 can
one party to the conversation. Del. Code Civil suits: Any person whose communi- take place under the District’s wiretapping
Ann. tit. 11, § 2402(c)(4). And because the cations are illegally intercepted, disclosed or law. D.C. Code § 23-542. This means a
provision of the statute dealing with wire- used in violation of the state’s eavesdropping reporter’s tape-recorded conversation with
less communications applies to “any transfer laws may bring a suit to recover for both a source would be permissible, since that
of signs, signals, writing, images, sounds, actual and punitive damages, as well as attor- reporter is a party to the conversation. The
data or intelligence” of any nature, consent ney fees and litigation costs. Del. Code Ann. District’s municipal regulations also contain
likewise 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 on
wireless 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 First
8 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’s
of 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 of
the time spent in any one place to five min- law is a misdemeanor punishable by up to individuals without their consent, or in areas
utes. 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 of
over 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 parties
to clarify that the rule would apply only to ism law is a felony punishable by up to five to any confidential communication must
street vendors who take photos of people to years imprisonment and fines not more than give permission to be recorded, according
sell 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 is
Post, 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 does
dc-will-revisit-street-photography-regu- greater of actual damages, damages in the not have a reasonable expectation of privacy
lations/2011/11/28/gIQAbxqX5N_blog. amount of $100 per day for each day of vio- in that communication. See definition of
html. 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 at
intercepting any wire or landline conversa- Code § 23-554. the grand opening of a new city park would
tion 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 illegal
23-542. 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 parties
ism 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 applies
person 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 any
23-3531. 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 messages
tributing 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 alleging
sent can be punished criminally by a fine of is prohibited. Both criminal and civil pen- violation of the wiretap law must be Florida
Amendment prevented Massachusetts law publishing a tape of a woman being arrested the Westboro Baptist Church’s protest
enforcement officials from interfering with without her consent is protected under involved speech about a matter of public
an individual’s Internet posting of an audio the First Amendment. Eran Best, who was concern, it was protected by the First
and video recording of an arrest and war- filmed being arrested during a traffic stop, Amendment, and Snyder’s father would
rantless search of a private residence, even did not consent to the tape appearing on the need to prove actual malice in his lawsuit
though the poster had reason to know at the reality show Female Forces. for intentional infliction of emotional
time 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 Snyder
the privacy of its citizens — encouraging been used commercially without her con- may suggest broad protection for the
uninhibited 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 broadcasting
by 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 right
given 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 of
sidered 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 of
the 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 highly
to punish the publisher than in Bartnicki Snyder, the father of a deceased marine sued offensive protest directed at a private
where 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 will
in 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 such
the 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 any
imaging 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 messages
knowledge 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 rule
body in an area where there is a reasonable phone or other electronic communication, does not apply, however, to the installation
expectation 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 conversations
underneath or through clothing without the communication. Ga. Code Ann. § 16-11- outside that private place. All parties who
subject’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 installation
ing, 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 install
fines, unless the interception is a first offense welfare. Ga. Code Ann. § 16-11-66(d). or use a surveillance device in a private area
committed without any illegal purpose, Hidden cameras: The state prohibits the to view a person in a “stage of undress or
and 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. Secretly
such an infraction is a misdemeanor punish- or record the activities of another which taking images of another underneath their
able 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 can
taking or distributing images in violation of Criminal penalties: Violation of any pro- also be charged with a misdemeanor sexual
the state’s video voyeurism law could face visions of the wiretapping statute carries a assault for trespassing on private property to
felony charges of up to five years in prison penalty of imprisonment between one and secretly observe somebody for the purpose
and $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 five
with punitive damages, attorney fees and sage, photograph or communication with- years imprisonment and a fine of up to
litigation 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 court
or 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 those
wiretapping 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 up
tribute 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 the
wire, 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 to
parties. The state prohibits the use of cam- or has received prior consent from one of use or disclose the contents of any private
eras to observe private activities without the the parties. In addition, the state’s hidden oral or electronic conversation, message or
consent of all parties involved, and also pro- camera law prohibits recording images of a photographic image without the consent of
hibits disclosure of the contents of illegally person in private areas while in any stage of at least one party to the conversation if the
obtained recordings. However, Georgia undress. The state provides both civil and accused knew or had reason to know that the
carves 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 either
without 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 individual
can record oral conversations where either to the recording. Haw. Rev. Stat. § 803-42. may record or disclose the contents of a
the person is a party to the conversation or Electronic communications: Similarly, a wire, oral or electronic communication if
at 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 was
the parties. The state provides both civil and piled Stat. 5/14-2(a)(1). The eavesdropping obtained with an eavesdropping device. 720
criminal 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 illegally
party must give consent in order to record tion to be private. 720 Ill. Compiled Stat. obtained communication is an affirmative
an 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. Compiled
electronic 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 Indiana
Code Ann. § 18-6702. Because the provision any telephone or electronic communication Summary of statute(s): Indiana bars the
of the statute dealing with wireless commu- unless all parties give their consent. 720 Ill. recording or interception of any telephonic
nications applies to “any transfer of signs, Compiled Stat. 5/14-1, -2. Because the pro- or electronic communication by means of
signals, writing, images, sounds, data or vision of the statute dealing with electronic any mechanical or electronic device without
intelligence 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 its
devices. 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 statute
devices capable of recording, storing or 1(e). makes it a felony to intercept any telephone
transmitting visual images to secretly view, Hidden cameras: A person cannot “vid- or electronic communication unless at least
broadcast or record a person, without that eotape, photograph, or film another person one party gives their consent. Ind. Code
person’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 electronic
privacy. Idaho Code Ann. § 18-6609(2). The changing room or hotel bedroom,” or in communications applies to “any transfer of
use of such cameras and publication or dis- their residence without their consent. 720 signs, signals, writing, images, sounds, data
semination 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 of
felony 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 person
fines. 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 if
tions have been illegally intercepted, dis- 720 Ill. Compiled Stat. 5/14-4. Violations the photo is taken in a private area such as
closed 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 in
intercepts a private conversation cannot judge “while in the performance of his or violation of Indiana’s wiretap laws is a felony
knowingly disclose or use the information her official duties.” 720 Ill. Compiled Stat. punishable by up to eight years in prison and
without 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 one
Illinois 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 of
eavesdropping device cannot be used to tutional” and could not be applied to the the voyeurism law carries penalties of up to
record 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 the
to 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, court
penalties 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 video
tutionality of the state’s eavesdropping law well as actual and punitive damages against voyeurism law makes it a Class D felony
into 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 confidential
tion of oral, telephonic or electronic com- sender or recipient. Failure to get consent communications are intercepted, disclosed
munications. Both laws bar the recording is a serious misdemeanor. Iowa Code Ann. or used in violation of the state’s wiretapping
or interception of such communications § 727.8. Under the state’s “Interception of and eavesdropping laws may seek injunctive
by means of any mechanical or electronic Communications” statute, it is a Class D relief from the court and recover in a civil
device 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 prohibits
and 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 to
makes 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 Kansas
record 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 disclosure
it is a Class D felony to willfully intercept either fully or partially nude without consent, of any oral or telephonic communication
the contents of a confidential oral conversa- so long as that subject has a reasonable expec- by means of any mechanical or electronic
tion. The statute, however, expressly permits tation of privacy. Iowa Code Ann. § 709.21. device without the consent of at least one
the recording through the use of any device Criminal penalties: Felony charges under party to the conversation. The state also
by either a party to the conversation, or with the state’s Interception of Communications prohibits the recording and disclosure of
the consent of at least one party, so long as statute carry penalties of up to five years images intercepted in violation of its hidden
the recording is done absent any criminal or imprisonment and a $7,500 fine. Iowa Code camera law. Violators can face both civil and
tortious 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’s
under 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