The following information is intended as a guide only and does not include every portion of the related statutes relevant to the issue of recording telephone conversations. If you’re looking for full content, please use your state’s statutes. You can find the information online or at your local law library.
Please be advised – any situation that involves more than one state, the state with the more stringent laws will apply. That means if you’re in a one-party consent state and the person you intend to record is in a two-party consent state – their state’s laws shall apply. Conversely, if you’re in a two-party state and the person you intend to record is in a one-party state, your state’s laws shall apply.
Alabama
Under Alabama law, unlawful eavesdropping, criminal surveillance, and divulging information obtained through these methods are misdemeanors carrying a maximum jail sentence of one year. Ala. Code § 13A-1-2.
The eavesdropping statute criminalizes the use of “any device” to overhear or record communications, whether the eavesdropper is present or not, without the consent of at least one party engaged in the communication. Ala. Code § 13A-11-31. A person also cannot knowingly or recklessly divulge information obtained through illegal eavesdropping. Ala. Code § 13A-11-35.
A violation of the statute occurs when there is (1) a willful interception, (2) of oral communications uttered by a person exhibiting an expectation that the communication would be in private, (3) and communication is made under circumstances justifying an expectation of privacy. Ages Group, L.P. v. Raytheon Aircraft Co., Inc., 22 F.Supp.2d 1310 (M.D. Ala. 1998).
Additionally, it is a misdemeanor to engage in “criminal surveillance,” defined as secret observation or photography while trespassing on private property. Criminal surveillance does not include observation on a public street. Ala. Code § 13A-11-32.
Alaska
It is a misdemeanor in Alaska to use an eavesdropping device to hear or record a conversation without the consent of at least one party to the conversation, or to disclose or publish information that one knows, or should know, was illegally obtained. Alaska Stat. § 42.20.310. A person who intercepts a private conversation cannot legally divulge or publish the information without consent of at least one party. Alaska Stat. § 42.20.300. The eavesdropping statute carries a fine of up to $1,000 and/or one year in jail, though suppression of illegally obtained information in court is the only civil penalty authorized. Alaska Stat. § 42.20.330.
The state’s highest court has held that the eavesdropping statute was intended to prohibit only third-party interception of communications and thus does not apply to a participant in a conversation. Palmer v. Alaska, 604 P.2d 1106 (Alaska 1979).
The state hidden camera statute applies only to images that include nudity. A person who views or produces a picture of a nude or partially nude person without consent commits the crime of “indecent viewing or photography.” Alaska Stat. § 11.61.123. The crime of indecent viewing or photography is a misdemeanor if the subject viewed is an adult, and a felony if the subject is a minor.
Arizona
An individual must have the consent of at least one party to a conversation in order to legally intercept a wire or electronic communication, including wireless and cellular calls, in Arizona. Otherwise, this conduct is a felony. Ariz. Rev. Stat. Ann. § 13-3005. Utilizing a device to overhear a conversation while not present, without the consent of a party to that conversation, is also a felony.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy for that communication. See definition of “oral communication,” Ariz. Rev. Stat. Ann. § 13-3001.
For example, a state appellate court has held that a criminal defendant’s contention that police officers violated this law by recording their interviews with him without his consent was meritless because the defendant had no reasonable expectation of privacy in a police interview room. Arizona v. Hauss, 688 P.2d 1051 (Ariz. Ct. App. 1984).
It is unlawful in Arizona for an individual to photograph or film a person without consent while the person is in a restroom, locker room, bathroom or bedroom or is undressed or involved in sexual activity, unless the surveillance is for security purposes and notice is posted. Ariz. Rev. Stat. Ann. § 13-3019.
Arkansas
Intercepting or recording any wire, oral, cellular or cordless phone conversation is a misdemeanor in Arkansas, unless the person recording is a party to the conversation, or one of the parties to the conversation has given prior consent. Ark. Code § 5-60-120. However, it is not unlawful for law enforcement investigations. Ark. Code § 5-60-120.
Arkansas law also criminalizes the “interception” of a message transmitted by telegraph or telephone in its public utility laws. Ark. Code § 23-17-107. However, the statute does not prohibit or restrict a Federal Communications Commission licensed amateur radio operator or anyone operating a police scanner from intercepting a communication for pleasure. Ark. Code § 5-60-120(e).
In some instances, the court may find implied consent. For example, in 1999, the United States Court of Appeals for the Eighth Circuit held that a mother of a mentally retarded son could not hold a care facility at which her son had been a patient liable for invasion of privacy under Arkansas law, since the mother knew some of her conversations with the facility’s employees were being recorded. Alexander v. Pathfinder, Inc., 189 F.3d 735 (8th Cir. 1999).
State law makes it a felony to use any camera or “image recording device” to secretly view or videotape a person in any place “where that person is in a private area out of public view, has a reasonable expectation of privacy, and has not consented to the observation.” Ark. Code § 5-16-101.
California
It is a crime in California to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication, without the consent of all parties. Cal. Penal Code §§ 631, 632. It is also a crime to disclose information obtained from eavesdropping. However, an individual can still be convicted without disclosing information. Two appellate courts have held that there is no disclosure or publication requirement for violation of the Privacy Act by recording confidential communications without consent. Coulter v. Bank of America, 28 Cal. App. 4th 923 (Cal. Ct. App. 1994). Marich v. MGM/UA Telecommunications, Inc., 113 Cal. App. 4th 415 (Cal. Ct. App. 2003).
Eavesdropping upon or recording a conversation, whether by telephone or face-to-face, when a person would reasonably expect their conversation to be confined to the parties present, carries the same penalty as intercepting telephone or wire communications. A California appellate court ruled that a network’s broadcast of a news report that used excerpts from secret recordings during two patient examinations violated the privacy rights of the physician, who had a reasonable expectation that his communications with his patients would be private and not recorded. Lieberman v. KCOP Television, Inc. 110 Cal. App. 4th 156 (Cal. Ct. App. 2003).
But, conversations that occur at any public gathering where one could expect to be overheard, including any legislative, judicial or executive proceeding open to the public, are not covered by the statute. For example, when a television network used a hidden camera to videotape a conversation that took place at a business lunch meeting on a crowded outdoor patio of a public restaurant, the conduct did not violate the Penal Code’s prohibition against eavesdropping because it was not a “confidential communication.” Wilkins v. NBC, Inc., 71 Cal. App. 4th 1066 (Cal. Ct. App. 1999).
However, an appellate court has ruled that using a hidden video camera in a private place does violate the statute. California v. Gibbons, 215 Cal. App. 3d 1204 (Cal. Ct. App. 1989). It is not a crime to take notes during a conversation or later summarize or disclose one’s recollection of a communication. People v. Wyrick, 77 Cal. App. 3d 903 (Cal. Ct. App. 1978).
A first offense of eavesdropping is punishable by a fine of up to $2,500 and imprisonment for no more than one year. Subsequent offenses carry a maximum fine of $10,000 and jail sentence of up to one year. Intercepting, recording, and disclosing information each carries a separate penalty.
Anyone injured by a violation of the laws against disclosure of telegraphic or telephonic messages can recover civil damages of $5,000 or three times actual damages, whichever is greater. Cal. Penal Code § 637.2(a). A civil action for invasion of privacy also may be brought against the person who committed the violation. Cal. Penal Code § 637.2.
Colorado
Recording or intercepting a telephone conversation, or any electronic communication, without the consent of at least one party to the conversation is a felony punishable by a fine of between $1,000 and $100,000 and one year to 18 months in jail. Colo. Rev. Stat. § 18-9-303. Recording a communication from a cordless telephone, however, is a misdemeanor. Colo. Rev. Stat. § 18-1.3-401. Using or disclosing information obtained through illegal wiretapping is a felony, if there is reason to know the information was obtained illegally. Colo. Rev. Stat § 18-9-304.
However, nothing in these statutes “shall be interpreted to prevent a news agency, or an employee thereof, from using the accepted tools and equipment of that news medium in the course of reporting or investigating a public and newsworthy event.” Colo. Rev. Stat. § 18-9-305.
Additionally, a person may use wiretapping or eavesdropping devices on his own premises for security or business purposes, if reasonable notice of the use of such devices is given to the public. Colo. Rev. Stat. § 18-9-305.
Connecticut
It is illegal to tape a telephone conversation in Connecticut without the consent of all parties. Conn. Gen. Stat. § 52-570d. Consent should be given prior to the recording, and should either be in writing or recorded verbally, or a warning that the conversation is being taped should be recorded.
Recording a telephone conversation without the consent of all the parties subjects an individual to liability for civil damages, as well as litigation costs and attorney fees. In addition, it is a felony punishable by imprisonment for one to five years for anyone who is not a party to a conversation to mechanically overhear or record that conversation, including telephonic and cellular or wireless communications and face-to-face discussions, without the consent of at least one party. Conn. Gen. Stat. §§ 53a-187, 189.
However, rerecording an illegally taped conversation by a third party may not violate the statute. Holler v. Buckley Broadcasting Corp., 706 A.2d 1379 (Conn. App. Ct. 1998).
Delaware
In Delaware, there is some conflict with regards to whether a party to a conversation can record the communication without the other party’s consent. Delaware’s wiretapping and surveillance law specifically allows an individual to “intercept” any wire, oral or electronic communication to which the individual is a party, or a communication in which at least one of the parties has given prior consent, so long as the communication is not intercepted with a criminal or tortious intent. Del. Code Ann. tit. 11, § 2402(c)(4).
However, a Delaware privacy law makes it illegal to intercept “without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation.” Del. Code Ann. tit. 11, § 1335(a)(4).
The wiretapping law is much more recent, and at least one federal court has held that, even under the privacy law, an individual can record his own conversations. United States v. Vespe, 389 F. Supp. 1359 (1975).
Under the wiretapping law, communications intercepted illegally, or the disclosure of the contents of illegally recorded communications, can result in prosecution for a felony and a fine of up to $10,000. Del. Code Ann. tit 11, § 2402 (b). Civil liability also can be imposed in the amount of actual damages or a fine of $100 a day for each day of violation or $1,000, whichever is more, along with punitive damages, attorney fees and litigation costs. Del. Code Ann. tit. 11, § 2409. However, a good faith reliance on a court order or legislative authorization constitutes a complete defense.
Installing a camera or other recording device “in any private place, without consent of the person or persons entitled to privacy there” is a misdemeanor, and under a 1999 amendment, the use of hidden cameras to record individuals dressing or undressing in a private place is a felony. Del. Code Ann. tit. 11, § 1335(2), (6).
District of Columbia
In the District of Columbia, an individual may record or disclose the contents of a wire or oral communication if he or she is a party to the communication, or has received prior consent from one of the parties, unless the recording is done with criminal or injurious intent. A recording made without proper consent can be punished criminally by a fine of no more than $10,000 or imprisonment for no more than five years, or both. D.C. Code Ann. § 23-542.
However, disclosure of the contents of an illegally recorded communication cannot be punished criminally if the contents of the communication have “become common knowledge or public information.” D.C. Code Ann. § 23-542
Besides being subject to criminal liability, anyone who illegally records or discloses the contents of a communication is also subject to civil liability for the greater of actual damages, damages in the amount of $100 per day for each day of violation, or $1,000, along with punitive damages, attorney fees and litigation costs. D.C. Code Ann. § 23-554.
The statute specifically prohibits the District of Columbia from asserting any governmental immunity to avoid liability under the wiretapping laws. However, a good faith reliance on a court order or legislative authorization shall constitute a complete defense. D.C. Code Ann. § 23-554.
Florida
All parties must consent to the recording or the disclosure of the contents of any wire, oral or electronic communication in Florida. Recording, disclosing, or endeavoring to disclose without the consent of all parties is a felony, unless the interception is a first offense committed without any illegal purpose, and not for commercial gain. Fla. Stat. ch. 934.03. These first offenses and the interception of cellular frequencies are misdemeanors. State v. News-Press Pub. Co., 338 So. 2d 1313 (1976).
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Fla. Stat. ch. 934.02. See also Stevenson v. State, 667 So.2d 410 (Fla. Dist. Ct. App. 1996); Paredes v. State, 760 So.2d 167 (Fla. Dist. Ct. App. 2000).
In Cohen Brothers, LLC v. ME Corp., S.A., 872 So.2d 321 (Fla. Dist. Ct. App. 2004), the District Court of Appeal for the Third District of Florida held that members of a limited liability company’s (LLC) management committee did not have a reasonable expectation of privacy with respect to participation in telephone conference calls with other committee members to discuss continued financing of the LLC, and thus could not hold the committee members liable for recording the conference calls.
A federal appellate court has held that because only interceptions made through an “electronic, mechanical or other device” are illegal under Florida law, telephones used in the ordinary course of business to record conversations do not violate the law. The court found that business telephones are not the type of devices addressed in the law and, thus, that a life insurance company did not violate the law when it routinely recorded business-related calls on its business extensions. Royal Health Care Servs., Inc. v. Jefferson-Pilot Life Ins. Co., 924 F.2d 215 (11th Cir. 1991).
Anyone whose communications have been illegally intercepted may recover actual damages or $100 for each day of violation or $1,000, whichever is greater, along with punitive damages, attorney fees and litigation costs. Fla. Stat. ch. 934.10.
Georgia
Secretly recording or listening to a conversation held in a private place, without the consent of all parties, whether carried out orally or by wire or electronic means, is a felony invasion of privacy under Georgia law. Ga. Code Ann. § 16-11-62.
Violation of the statute carries a penalty of imprisonment for not less than one nor more than five years or a fine not to exceed $10,000.00, or both. Ga. Code Ann. § 16-11-69. However, the law expressly provides that it does not prohibit a person who is a party to a conversation from recording, and allows recording if one party to the conversation has given prior consent. Ga. Code Ann. § 16-11-66. See also Malone v. State, 541 S.E.2d 431 (Ga. Ct. App. 2000).
It is also illegal for any person to divulge or distribute to any unauthorized person or authority the content or substance of any private message, regardless of whether it is intercepted lawfully or unlawfully.
However, the Court of Appeals of Georgia has held that the statute does not prohibit parents from monitoring or intercepting their minor children’s phone conversations for the purpose of ensuring the welfare of the minor child. Bishop v. State, 252 555 S.E.2d 504 (Ga. Ct. App. 2001).
Use of a hidden camera “without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view” is illegal as well. Ga. Code Ann. § 16-11-62(2).
Hawaii
Any wire, oral or electronic communication (including cellular phone calls) can lawfully be recorded by a person who is a party to the communication, or when one of the parties has consented to the recording, so long as no criminal or tortious purpose exists. Haw. Rev. Stat. § 803-42. Divulging any private message or photographic image by telephone, telegraph, letter, electronic transmission, without the consent of either the sender or the receiver, is a misdemeanor if the accused knows that the message was unlawfully intercepted. Unlawful interceptions or disclosures of private communications are punishable as felonies. Haw. Rev. Stat. § 803-42.
The one-party consent rule does not apply, however, to the installation of a recording device in a “private place” that will amplify or broadcast conversations outside that private place. All parties who have a reasonable expectation of privacy in that place must consent to the installation of a recording device. Haw. Rev. Stat. § 711-1111.
Civil penalties for unlawful interception or disclosure include the greater of actual damages or any profits made by the violator, $100 for each day of violation, or $10,000, along with punitive damages, attorney fees and litigation costs. Haw. Rev. Stat. § 803-48. A hotel room has been found by the Hawaii Supreme Court to be a private place where a recording device cannot legally be installed without the consent of the room’s occupants. Hawaii v. Lo, 675 P.2d 754 (Haw. 1983).
It is a felony to install or use a surveillance device in a private place to view a person in a “stage of undress or sexual activity” without the person’s consent. If the person is not in such a stage, it is a misdemeanor. Haw. Rev. Stat. § 711-1111. It is also a misdemeanor to possess materials obtained through illegal surveillance. Haw. Rev. Stat. § 711-1110.9.
Idaho
Although legislation criminalizes the interception and disclosure of wire or oral communications, it specifically allows interception when one of the parties has given prior consent. Idaho Code § 18-6702. Punishment for the felony of an illegal interception or disclosure can include up to five years in prison and as much as $5,000 in fines. Anyone whose communications are unlawfully intercepted can sue for recovery of actual damages, at $100 a day per day of violation or $1,000 — whichever is more. Punitive damages, litigation costs and attorney fees also can be recovered. Idaho Code § 18-6709.
The Supreme Court of Idaho has held that eavesdroppers violated the Communications Security Act by willfully intercepting and recording telephone users’ cordless telephone conversation using radio scanners and tape recorders, and disclosing the conversations to others. Hoskins v. Howard, 971 P.2d 1135 (Idaho 1998).
Illinois
In Illinois, an eavesdropping device cannot be used to record or overhear a conversation without the consent of all parties to the conversation. 720 Ill. Compiled Stat. Ann. 5/14-1, -2. An eavesdropping device is defined as anything used to hear or record a conversation, even if the conversation is conducted in person.
In addition, it is illegal to disclose information one knows or should have known was obtained with an eavesdropping device. Violations of the eavesdropping law are punishable as felonies, with first offenses categorized as lesser felonies than subsequent offenses. 720 Ill. Compiled Stat. Ann. 5/14-4. Civil liability for actual and punitive damages is authorized as well. 720 Ill. Compiled Stat. Ann. 5/14-6. However, not disclosing the contents of the illegally obtained communication is an affirmative defense to the charge.
Standard radio scanners are not eavesdropping devices, according to a 1990 decision from an intermediate appellate court. Illinois v. Wilson, 554 N.E.2d 545 (Ill. App. Ct. 1990). A camera is not an eavesdropping device. Cassidy v. ABC, 377 N.E. 2d 126 (Ill. App. Ct. 1978).
It is also illegal for any person to “videotape, photograph, or film another person without that person’s consent in a restroom, tanning bed or tanning salon, locker room, changing room or hotel bedroom,” or in their residence without their consent. 720 Ill. Compiled Stat. Ann. 5/26-4(a).
The eavesdropping provisions do not prohibit private citizens from electronically recording the proceedings of any meeting subject to the Open Meetings Act.
Under Illinois law, when communications with individuals acting as agents or representatives of a company are taped in violation of the Illinois eavesdropping statute, claims under the eavesdropping statute belong to the company. International Profit Associates, Inc. v. Paisola, 461 F.Supp.2d 672 (N.D. Ill. 2006).
Indiana
The recording or acquiring of the contents of a telephonic or telegraphic communication by someone who is neither the sender nor the receiver is a felony and can be the basis for civil liability as well. Ind. Code Ann. § 35-33.5-1-5.
Civil liability may require the payment of actual damages, $100 per day for each day of violation or $1,000 — whichever is greater — and punitive damages, court costs and attorney fees. Ind. Code Ann. § 35-33.5-5-4.
In 2000, the Supreme Court of Indiana held that the Indiana Wiretap Act requires the state to prove the eavesdropper acted with intent. State v. Lombardo, 738 N.E.2d 653. (Ind. 2000).
The Court of Appeals of Indiana held in 2007 that the interception and recording of calls made by prisoners from a jail did not violate the Wiretap Act, since recipients of calls were informed prior to accepting collect calls that the calls might be recorded or monitored, and the recipients pressed zero, accepting the calls and indicating their consent. Edwards v. State, 862 N.E.2d 1254, (Ind. Ct. App. 2007).
Iowa
It is a misdemeanor in Iowa under general criminal laws for a third party to tap into a communication of any kind, including telephone conversations. If the person listening or recording is a sender or recipient of the communication, or is openly present and participating in the conversation, the communication can be recorded without the consent of the other parties. Iowa Code § 727.8.
Iowa also has more specific legislation regarding the interception of communications that expressly allows the interception of wire, oral or electronic communications through use of a mechanical device by a party to the communication, or with the consent of at least one party, in the absence of any criminal or tortious intent. Iowa Code § 808B.2.
Illegal interception and disclosure of intercepted information under this legislation are felonies and anyone whose communications have been intercepted is expressly provided with injunctive relief and damages at a rate of $100 a day or $1,000, whichever is higher. Iowa Code § 808B.8.
However, individuals cannot legally record conversations while not present. In 2005, the Supreme Court of Iowa upheld a conviction of a woman who set her tape recorder on voice-activation mode so that it would record conversations automatically in her absence. State v. Philpott, 702 N.W.2d 500 (Iowa 2005).
Kansas
Unlawful eavesdropping consists of secretly listening to, recording, or amplifying private conversations or using any device to intercept a telephone or wire communication “without the consent of the person in possession or control of the facilities for such wire communication.” Kan. Stat. Ann. § 21-4001. Violations are misdemeanors. A criminal breach of privacy, punishable as a misdemeanor as well, occurs when any means of private communication is intercepted without the consent of the sender or receiver. Divulging the existence or contents of any type of private communication, whether carried out by telephone or even letter, is also a misdemeanor if the person knows the message was intercepted illegally. Kan. Stat. Ann. § 21-4002.
The state’s highest court has interpreted the eavesdropping and privacy statutes to allow one-party consent for taping of conversations and in interpreting both statutes has held that as long as one party consents to the conversation, the other party loses his right to challenge the eavesdropping in court. Kansas v. Roudybush, 686 P.2d 100 (Kan. 1984).
It is a misdemeanor to use a hidden camera to photograph a person who is nude or in a state of undress without the person’s consent in a place where the person has a reasonable expectation of privacy. Kan. Stat. Ann. § 21-4001(a)(4). For example, a stepfather was convicted of eavesdropping by videotaping his 16-year-old stepdaughter bathing by use of a hole in a bathroom wall. State v. Liebau, 67 P.3d 156 (Kan. Ct. App. 2003).
Kentucky
It is a felony to overhear or record, through use of an electronic or mechanical device, a wire or oral communication without the consent of at least one party to that communication. Ky. Rev. Stat. Ann. § 526.010. A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop, whether or not he is present at the time. Ky. Rev. Stat. Ann. § 526.020.
Divulging information obtained through illegal eavesdropping is a separate crime, punishable as a misdemeanor. Ky. Rev. Stat. Ann. § 526.060.
Anyone who inadvertently hears a conversation transmitted through a wireless telephone on a radio receiver does not violate the eavesdropping statute, but if that same conversation is recorded or passed on to others without the consent of a party to the original conversation, a violation occurs. Ky. Att’y Gen. Op. 84-310 (1984). This prohibition includes recording any oral communication of others without their consent, so long as the recorder used an eavesdropping device.
A conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected by the statute, since a person who desires privacy can take the steps necessary to ensure that his conversation cannot be overheard by the ordinary ear. Ky. Rev. Stat. Ann. § 526.020.
Louisiana
Unless a criminal or tortious purpose exists, a person can record any conversations transmitted by wire, oral or electronic means to which he is a party, or when one participating party has consented. A violation of the law, whether by recording or disclosing the contents of a communication without proper consent, carries a fine of not more than $10,000 and jail time of not less than two and not more than 10 years at hard labor. La. Rev. Stat. § 15:1303.
Civil damages are expressly authorized as well. Actual damages can be recovered — minimum damages in any case will be the greater of $100 a day for each day of violation or $1,000 — along with punitive damages, litigation costs and attorney fees. La. Rev. Stat. § 15:1312.
The use of any type of hidden camera to observe or record a person where that person has not consented is illegal if the recording “is for a lewd or lascivious purpose.” La. Rev. Stat. § 14:283.
The Court of Appeal of Louisiana for the Second Circuit held that a wife’s secretly-recorded telephone conversations with her husband on her own telephone were not illegally intercepted since the calls were recorded by a party to the conversation. Brown v. Brown, 877 So.2d 1228 (La. Ct. App. 2004).
Maine
Interception of wire and oral communications is a “Class C” crime under the state criminal code, and an interceptor is someone other than the sender or receiver of a communication who is not in the range of “normal unaided hearing” and has not been given the authority to hear or record the communication by a sender or receiver. Me. Rev. Stat. Ann. tit. 15, § 710. Thus, the statute does not prohibit a party to the conversation from recording.
Disclosure of the contents of intercepted communications, knowing the information was obtained by interception, is a “Class C” violation of the criminal code as well. Me. Rev. Stat. Ann. tit. 15, § 710.
Anyone whose communications have been intercepted can sue for civil damages and recover the greater of $100 a day for each day of violation or actual damages, and also attorney fees and litigation costs. Me. Rev. Stat. Ann. tit. 15, § 711.
A hidden cameras law makes it a “Class D” crime to use a camera to view or record a person in a private place, “including, but not limited to, changing or dressing rooms, bathrooms and similar places,” or in a public place if one views any portion of another person’s body “when that portion of the body is in fact concealed from public view under clothing,” and a reasonable person would expect it to be safe from surveillance. Me. Rev. Stat. Ann. tit. 17-A, §511.
Maryland
Under Maryland’s Wiretapping and Electronic Surveillance Act, it is unlawful to tape record a conversation without the permission of all the parties. See Bodoy v. North Arundel Hosp., 945 F.Supp. 890 (D. Md. 1996). Additionally, recording with criminal or tortuous purpose is illegal, regardless of consent. Md. Code Ann., Cts. & Jud. Proc. § 10-402.
Disclosing the contents of intercepted communications with reason to know they were obtained unlawfully is a crime as well.
Violations of the law are felonies punishable by imprisonment for not more than five years and a fine of not more than $10,000. Civil liability for violations can include the greater of actual damages, $100 a day for each day of violation or $1,000, along with punitive damages, attorney fees and litigation costs. To recover civil damages, however, a plaintiff must prove that the defendant knew it was illegal to tape the communication without consent from all participants. MD. Code Ann., Cts. & Jud. Proc. § 10-410.
State courts have interpreted the laws to protect communications only when the parties have a reasonable expectation of privacy, and thus, where a person in a private apartment was speaking so loudly that residents of an adjoining apartment could hear without any sound enhancing device, recording without the speaker’s consent did not violate the wiretapping law. Malpas v. Maryland, 695 A.2d 588 (Md. Ct. Spec. App. 1997); see also Benford v. American Broadcasting Co., 649 F. Supp. 9 (D. Md. 1986) (salesman’s presentation in stranger’s home not assumed to carry expectation of privacy).
The Court of Special Appeals of Maryland held that because states are at liberty to adopt more restrictive provisions than those contained in federal law, the secretary-treasurer of a local union who recorded conversations between himself and management representatives could still be prosecuted under the state statute, even if his conduct was arguably protected under the National Labor Relations Act. Petric v. State, 504 A.2d 1168 (Md. Ct. Spec. App. 1986).
It is a misdemeanor to use a hidden camera in a bathroom or dressing room. It is also a misdemeanor to use a hidden camera on private property “for purposes of conducting deliberate, surreptitious observation of a person inside the private residence,” or in a private place with “prurient intent.” Md. Crim. Law §§ 3-901, -902, -903. A person who is viewed in violation of these statutes has a civil cause of action. The court may award actual damages and reasonable attorney fees. A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding one year or a fine not exceeding $2,500 or both.
Massachusetts
It is a crime to record any conversation, whether oral or wire, without the consent of all parties in Massachusetts. The penalty for violating the law is a fine of up to $10,000 and a jail sentence of up to five years. Mass. Ann. Laws ch. 272 , § 99.
Disclosure of the contents of an illegally recorded conversation, when accompanied by the knowledge that it was obtained illegally, is a misdemeanor that can be punished with a fine of up to $5,000 and imprisonment for up to two years. Civil damages are expressly authorized for the greater of actual damages, $100 for each day of violation or $1,000. Punitive damages and attorney fees also are recoverable.
For example, in Com. v. Hanedanian, 742 N.E.2d 1113 (Mass. App. Ct. 2001), the appellate court held that a defendant’s conduct of intentionally making a secret tape recording of oral communications between himself and his attorneys, without consent, violated the statute, even though the defendant was a party to the conversation.
However, the First Circuit, applying the holding in Bartnicki v. Vopper, 532 U.S. 514 (2001), held in 2007 that a woman who accepted from a source a recorded tape, that she had reason to know was recorded illegally by the source, could not be punished for publishing the tape on her website. The court held that the woman had a First Amendment right to publish the tape she received. Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007).
An appellate court has also held that the recorded conversation or communication does not need to be intelligible in order for the interception to violate the wiretapping statute. Com. v. Wright, 814 N.E.2d 741 (Mass. App. Ct. 2004).
Michigan
Any person who willfully uses any device to overhear or record a conversation without the consent of all parties is guilty of illegal eavesdropping, whether or not they were present for the conversation. Illegal eavesdropping can be punished as a felony carrying a jail term of up to two years and a fine of up to $2,000. Mich. Comp. Laws § 750.539c.
In addition, any individual who divulges information he knows, or reasonably should know, was obtained through illegal eavesdropping is guilty of a felony punishable by imprisonment for up to two years and a fine of up to $2,000. Mich. Comp. Laws § 750.539e. Civil liability for actual and punitive damages also are sanctioned. Mich. Comp. Laws § 750.539h.
The eavesdropping statute has been interpreted by one court as applying only to situations in which a third party has intercepted a communication. This interpretation allows a participant in a conversation to record that conversation without the permission of other parties. Sullivan v. Gray, 324 N.W.2d 58 (Mich. Ct. App. 1982).
The state Supreme Court stated in a July 1999 ruling that a participant in a conversation “may not unilaterally nullify other participants’ expectations of privacy by secretly broadcasting the conversation” and that the overriding inquiry should be whether the parties “intended and reasonably expected that the conversation was private.” Therefore, it is likely that a recording party may not broadcast a recorded conversation without the consent of all parties. Dickerson v. Raphael, 601 N.W.2d 108 (Mich. 1999).
It is a felony to observe, photograph or eavesdrop on a person in a private place without the person’s consent. Mich. Comp. Laws § 750.539d. A private place is a place where one may reasonably expect to be safe from intrusion or surveillance, but not a place where the public has access. Mich. Comp. Laws § 750.539a.
Additionally, the Court of Appeals of Michigan held in 2006 that neither the secretary to a school district superintendent who allegedly circulated a facsimile sent to the superintendent, nor those who saw the facsimile, were liable under the state eavesdropping statute, since the facsimile machine was not used to record or access the messages sent to the superintendent. Vollmar v. Laura, 2006 WL 1008995 (Mich. Ct. App. 2006) (Unreported).
Minnesota
It is legal for a person to record a wire, oral or electronic communication if that person is a party to the communication, or if one of the parties has consented to the recording — so long as no criminal or tortious intent accompanies the recording. Minn. Stat. § 626A.02. Unlawful recordings, or disclosure of their contents when there is reason to know the information was obtained illegally, carry maximum penalties of imprisonment for five years and fines of $20,000. In addition, civil liability for violations statutorily can include three times the amount of actual damages or statutory damages of up to $10,000, as well as punitive damages, litigation costs and attorney fees. Minn. Stat. § 626A.13.
Under state court interpretations, when an employee of a local television station secretly videotaped a veterinarian treating a pet in a private home for an investigative news report, the station did not violate the wiretapping law because its employee was a party to the communication and it had no tortious intent. Regardless of the fact that allegations of tortious trespass existed, the court found the station’s intent was commercial, not tortious. Copeland v. Hubbard Broadcasting, Inc., 526 N.W.2d 402 (Minn. Ct. App. 1995), cert. denied, 1998 Minn. LEXIS 77 (Minn. Jan. 28, 1998).
It is a misdemeanor to use any type of device for “observing, photographing, recording, amplifying or broadcasting sounds or events through the window or other aperture of a sleeping room in a hotel, a tanning booth or any other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts or the clothing covering the immediate area of the intimate parts.” Minn. Stat. § 609.746. State v. Morris, 644 N.W.2d 114 (Minn. App. 2002) (defendant who concealed video camera in bag and used it to videotape up the skirts of females in department store violated statute prohibiting interference with privacy).
Mississippi
It is generally a violation of Mississippi law to intercept and acquire the contents of wire, oral or other communications with a mechanical or electronic device. The law against interception of communications applies neither to a “subscriber” to a telephone who “intercepts a communication on a telephone to which he subscribes,” nor to members of the subscriber’s household. Miss. Code Ann. § 41-29-535, Wright v. Stanley, 700 So.2d 274 (Miss. 1997) (state law prohibition on wiretapping did not apply to former wife who intercepted communications on her own telephone).
Violations can be punished as misdemeanors carrying the potential for imprisonment for up to one year and fines of up to $10,000. Miss. Code Ann. § 41-29-533. It is a felony, however, for anyone who is not a law-enforcement officer to disclose the contents of intercepted communications for any reason other than testifying under oath in a governmental or court proceeding, and the penalty for such disclosure can be up to five years imprisonment and up to $10,000 in fines. Miss. Code Ann. §§ 41-29-511, 529. Civil liability for an unlawful interception is expressly authorized for actual damages, $100 a day for each day of violation or $1,000 — whichever is greater — along with punitive damages, attorney fees and litigation costs. Miss. Code Ann. § 41-29-529.
In addition, the law specifically provides that if a person is a party to a communication, or has obtained consent from any one of the parties, no liability can be imposed unless the interception was accompanied by a criminal or tortious intent. Miss. Code Ann. § 41-29-531.
Also, the contents of cellular telephone communications are unlawfully obtained when access is gained by a person who is not the intended recipient, or is not authorized to have access to the transmission. The possible penalties for unlawfully obtaining access to cellular communications are imprisonment for up to six months or a fine of up to $1,000. Miss. Code Ann. § 97-25-49.
Missouri
An individual who is a party to a wire communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents, unless the person is intercepting the communication for the purpose of committing a criminal or tortious act. Mo. Rev. Stat. § 542.402. Recording or disclosing the contents of a wire communication by all other persons is a felony.
Anyone whose communications have been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of violation or $1,000, and can recover punitive damages, attorney fees and litigation costs as well. Mo. Rev. Stat. § 542.418.
A Missouri appellate court has held that radio broadcasts from cordless telephones are not wire communications, and thus, recording such radio broadcasts is not illegal under the eavesdropping statute. Missouri v. King, 873 S.W.2d 905 (Mo. App. 1994).
It is also a felony to view or photograph a person in “a state of full or partial nudity” if the person “is in a place where he would have a reasonable expectation of privacy.” Mo. Rev. Stat. § 565.253.
Montana
A reporter in Montana cannot tape record a conversation without knowledge of all parties to the conversation. See Mont. Code ann. § 45-8-213-c. Exceptions to this rule include the recording of: elected or appointed officials and public employees, when recording occurs in the performance of public duty; persons speaking at public meetings, and persons given warning of the transcription. If one party gives warning, then either party may record. Mont. Code ann. § 45-8-213-1-c-i, ii, iii. It is illegal to purposely intercept an electronic communication. It is also illegal to disclose the contents of an illegally recorded conversation. Mont. Code ann. § 45-8-213-2.
A person convicted of the offense of violating privacy in communications shall be fined an amount not to exceed $500 or be imprisoned in county jail for a term not to exceed six months, or both. Penalties increase with each offense. Mont. Code ann. § 45-8-213-3.
In 2003, the Montana Supreme Court found that a tape-recorded conversation between a defendant and others while the defendant was in prison did not violate state wiretapping laws because the prison notified the defendant that his telephone conversations were subject to monitoring. State v. DuBray, 77 P.3d 247, 263 (Mont. 2003).
Nebraska
It is not unlawful to intercept a wire, electronic, or oral communication when the interceptor is a party to the conversation or one of the parties to the communication has given prior consent, unless the communication is intercepted for the purpose of committing any criminal or tortious act. Neb. Rev. Stat. § 86-290-1-b, c. Neither is it unlawful to intercept communications available to the general public or signals causing harmful interference. Neb. Rev. Stat § 86-290-1.
It is illegal to intentionally disclose, or publish, the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through illegal interception. Neb. Rev. Stat § 86-290-1.
Only injunctive relief can be sought for a first offense; subsequent violation gives rise to a $500 fine. Neb. Rev. Stat § 86-290-5-b.
In addition, any person whose communication is intercepted or disclosed may recover in a civil action from the person or entity which engaged in the violation such relief as a judge deems appropriate, including injunctive or declaratory relief and reasonable attorney fees and other litigation costs. Neb. Rev. Stat § 86-297-1.
Nevada
Consent of all parties is required to tape a conversation in Nevada. Intercepting or delaying a telephone conversation is a misdemeanor. Nev. Rev. Stat. Ann. § 707.900. However, if the interception is made with the prior consent of one of the parties to the communication and an emergency situation exists in which it is impractical to gain a court order before intercepting the communication, an exception may be made. § 200.620. This exception applies mostly to law enforcement officers who proceed without a warrant. See Nev. Rev. Stat. Ann § 179.410, et seq; Koza v. State, 100 Nev. 245, 252-253 (Nev. 1984).
In December 1998, the state’s highest court stated in a 3-2 decision that the state wiretapping statutes require an individual to obtain the consent of all parties before taping a telephone conversation, and thus, that an individual who tapes his own telephone calls without the consent of all participants unlawfully “intercepts” those calls. Lane v. Allstate Ins. Co., 969 P.2d 938, 941 (Nev. 1998).
In addition, it is a crime to intrude upon the privacy of another by surreptitiously listening to, recording, or disclosing any conversation gained by means of electronic or mechanical device, unless authorized to do so by one of the parties of the conversation. Nev. Rev. Stat. Ann § 200.630, .650.
Violations of the statute can be punishable by $1,000 or $100 per day, whichever is greater, punitive damages for violations of privacy, and costs reasonably incurred in bringing the action to court. Nev. Rev. Stat. Ann § 200.690.
New Hampshire
It is a felony to intercept or disclose the contents of any telecommunication or oral communication without the consent of all parties. N.H. Rev. Stat. Ann. § 570-A:2-I. It is punishable by imprisonment of one to seven years. N.H. Rev. Stat. Ann § 625:9. However, it is only a misdemeanor if a party to a communication, or anyone who has the consent of only one of the parties, intercepts a telecommunication or oral communication. N.H. Rev. Stat. Ann § 570-A:2-I. Misdemeanors are punishable by imprisonment up to one year. N.H. Rev. Stat. Ann § 625:9.
Any person whose telecommunication or oral communication is intercepted or disclosed has a civil cause of action against any person who unlawfully obtains such communication and is entitled to recover: actual damages at a rate of $100 per day or $1,000, whichever is greater; punitive damages; and reasonable attorney fees or other litigation costs. N.H. Rev. Stat. Ann § 570-A:11.
In addition, it is a violation of privacy to install or use any device for the purpose of observing, photographing, or recording in or outside any private place. N.H. Rev. Stat. Ann § 644:9-I. The state’s highest court has held that a classroom was not a private place where a school custodian could reasonably expect to be safe from video surveillance. State v. McLellan, 744 A.2d 611, 615 (N.H. 1999).
New Jersey
It is a crime to purposely intercept any wire, electronic, or oral communication. It is also a crime to disclose or use the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained unlawfully. N.J. Stat. § 2A:156A-3. However, if the contents of the communication have “become public knowledge or public information,” then the disclosure is not a crime N.J. Stat. § 2A:156A-3.
The statute makes an exception and allows interception if the person intercepting is a party to the communication, or if one party has given prior consent, unless such communication is intercepted for the purpose of committing any criminal or tortious act. N.J. Stat. § 2A:156A-4. The fact that one subscriber to a particular telephone has consented does not authorize interception of conversations by other parties who use that telephone. N.J. Stat. § 2A:156A-4.
Civil liability for unlawful interception or disclosure can be imposed for the greater of actual damages, $100 per day of violation $1,000, and can include punitive damages, attorney fees, and litigation costs. N.J. Stat. § 2A:156A-24.
New Mexico
The crime of “interfering with communication” involves knowingly and unlawfully tapping any connection that belongs to another without consent of the person owning, possessing, or controlling the property. N.M. Stat. Ann. § 30-12-1(b). The crime also includes copying transmitted messages without consent, delaying the sending of any communication, or using any device to commit any of the prohibited acts. N.M. Stat. Ann. § 30-12-1(b).
Whoever commits the crime of “interfering with communications” is guilty of a misdemeanor, unless the interference is: (1) By court order; (2) By the operator of a communications carrier switchboard operator in the course of his or her normal duty; or (3) Under color of law in the investigation of a crime. N.M. Stat. Ann. § 30-12-1.
Any person whose right to privacy has been violated under the statute may sue for actual damages of $100 per day of violation or $1,000, whichever is higher. A person whose rights have been violated may also recover punitive damages, reasonable attorney fees, and court costs. N.M. Stat. Ann. § 30-12-1.
The Supreme Court of New Mexico held that the consent requirement in the statute refers to consent to the sending of the communication. Arnold v. New Mexico, 610 P.2d 1210, 1213 (N.M. 1980). A journalist should be sure to get consent to publish a recorded conversation, based on this authority. See id.
New York
Intercepting or unlawfully engaging in wiretapping without the consent of one party is a felony. N.Y. Penal Law §§ 250.00, 250.05. Mechanical wiretapping is illegal under the statute only when the party whose wires are tapped is not a party involved in the conversation. People v. Gibson, 23 N.Y.2d 618 (N.Y. 1969). However, a party to the conversation may surreptitiously record a conversation. Id. In addition, those who talk in the presence of a non-participating third party may have no expectation of privacy with respect to statements overheard by the third party. People v. Kirsh, 176 A.D.2d. 652 (N.Y. App. Div. 1991).
These laws apply to conversations conducted over cellular or cordless phones. People v Fata, 159 N.Y.S.2d 348 (N.Y.App. Div. 1990).
A state court held that newspapers that published transcripts of an illegally recorded telephone conversation were subject to civil liability when the “newspapers knew they were dealing with recorded conversations between unconsenting parties.” Natoli v. Sullivan, 606 N.Y.S.2d 504 (N.Y. Sup. Ct. Oswego County 1993), aff’d, 616 N.Y.D.2d 318 (N.Y. App. Div. 1994).
Publication may also constitute the crime of “tampering with private communications,” a misdemeanor. N.Y. Penal Law § 250.25. A person is guilty of this crime when he divulges the contents of a private letter or communication knowing that it has been opened or read. N.Y. Penal Law § 250.25.
North Carolina
Without the consent of at least one party to the communication, it is a felony to willfully intercept, endeavor to intercept, or get any other person to intercept any wire, oral, or electronic communication or to use any device, which transmits by radio, wire, or cable, to do so. N.C. Gen. Stat. § 15A-287(a)(1).
In interpreting the meaning of “consent,” an appellate court determined that implied consent to interception occurs when one party is warned of monitoring and yet continues with the conversation. North Carolina v. Price, 170 N.C. App. 57 (N.C. App. 2005).
It is also illegal to willfully disclose or use the contents of any wire, oral, or electronic communication, knowing that the information was obtained unlawfully. N.C. Gen. Stat. § 15A-287(A)((3),(4).
“Electronic communication” does not include any communication from a tracking device. N.C. Gen. Stat. § 15A-286(8).
Any person whose wire, oral, or electronic communication has been intercepted, disclosed, or used has a civil cause of action against any person who intercepts or discloses the information. The violated party is entitled to recover actual damages (but not less than $100 per day or $1,000, whichever is higher), punitive damages, and reasonable attorney fees and litigation costs. N.C. Gen. Stat. § 15A-296(A).
No cause of action exists against a party who merely endeavors to intercept a communication. Kroh v. Kroh, 152 N.C. App. 347 (N.C. App. 2002).
North Dakota
Anyone who is a party to a conversation or who has obtained consent from one party to the conversation may legally record or disclose the contents of any wire or oral communication so long as he does not have criminal or tortious intent. N.D. Cent. Code § 12.1-15-02.
If a third party intentionally intercepts or discloses any wire or oral communication by any electronic, mechanical, or other device, it is a felony, carrying a maximum penalty of a $5,000 fine and imprisonment for five years. N.D. Cent. Code §§ 12.1-15-02(1) (2008), 12.1-32-01.
“Oral communication” means any words uttered by a person exhibiting an expectation that such communication is not subject to interception. N.D. Cent. Code § 12.1-15-04(5).
Eavesdropping—“secretly loitering about a building” with the intent to overhear information—is a misdemeanor. N.D. Cent. Code § 12.1-15-02(2). To publish overheard information with intent to annoy or injure others is a misdemeanor, punishable by up to one year’s imprisonment and a fine of up to $2,000. N.D. Cent. Code § 12.1-32-01.
Ohio
It is not a crime to intercept a wire, oral, or electronic communication if the person recording is a party to the conversation, if one party has consented to taping, or if the conversation is not taped for the purpose of committing a criminal or tortious offense. Ohio Rev. Code ann. § 2933.52. Under the statute, consent is not required to tape a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Ohio Rev. Code ann. § 2933.51(b). The Ohio Supreme Court has held that prisoners do not have a reasonable expectation in their communications, for purposes of the wiretapping law. State v. Robb, 723 N.E.2d 1019 (Ohio 2000).
Cordless telephone conversations purposely picked up by a neighbor’s baby monitor were considered “oral communications,” accompanied by a reasonable expectation of privacy. Ohio v. Bidinost, 644 N.E.2d 318 (Ohio 1994).
Illegal interceptions are felonies and also carry potential civil liability for the greater of actual damages, $200 per day of violation or $10,000, along with punitive damages, attorney fees, and litigation expenses. There is a two-year statute of limitations to bring a civil action. Ohio Rev. Code ann. § 2933.65.
Ohio also has anti-voyeurism law that prohibits surreptitiously invading a person’s privacy for sexual purposes. Ohio Rev. Code ann. §2907.08.
Oklahoma
It is a felony to willfully intercept, endeavor to intercept, or disclose the contents of any wire, oral, or electronic communication. Okla. Stat. tit. 13 § 176.3. It is not a crime for a person to intercept a wire, oral, or electronic communication when the person is a party to the conversation or when one party to the conversation has given prior consent, so long as the person does not intercept the communication for criminal purposes. Okla. Stat. tit. § 176.4.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Okla. Stat. tit. § 176.2.
Unlawful recording or disclosure is a felony punishable by a fine of not less than $5,000 and jail time not to exceed five years. Okla. Stat. tit. § 176.3.
It is also a misdemeanor to secretly loiter with the intent of eavesdropping and to repeat or publish anything overheard. Okla. Stat. tit. 21 § 1202.
Oregon
It is a “Class A” misdemeanor for a third party to intercept, attempt to intercept, or get any other person to intercept any wire or oral communication without the consent of any parties to the conversation. Or. Rev. Stat. § 165.543.
People who violate the statute are subject to fines, not to exceed $6,250, and prison time, not to exceed one year. Or. Rev. Stat. §§ 165.543, 161.615.
Unless one is a party to the conversation or has received consent from one of the parties, it is illegal to obtain any part of a telecommunication or a radio communication. Or. Rev. Stat. § 165.540(1)(a). It is illegal to tamper with telephone wires unless one is a party to the conversation. Or. Rev. Stat. § 165.540(1)(b). One cannot use a device to record a conversation unless all parties of the conversation are informed. Or. Rev. Stat. § 165.540(1)(c). It is also illegal for a party to obtain, divulge, or use a conversation knowing it was obtained illegally by someone else. Or. Rev. Stat. § 165.540(1)(d),(e).
To record a conversation with an unconcealed recording device, all parties to the conversation must either know or reasonably expect that the conversation is being taped. Or. Rev. Stat. § 165.540(6)(c).
The state’s highest court has held that taping of a telephone conversation with one party’s consent was not illegal under the statutes. State v. Lissy, 747 P.2d 345 (Or. 1987).
Defendant’s utterance of words into a telephone during a phone call to a third person, in the presence of an informant who was wearing a body wire, was a “telecommunication,” which by statute could not be obtained by a non-participant in the conversation without consent from at least one participant. Oregon v. Fleetwood, 16 P.3d 503 (Or. 2000).
No Oregon statute prevents eavesdropping. Oregon v. Cartwright, 418 P.2d 822 (Or. 1966).
A court of appeals ruled in 1989 that the restrictions of these statutes placed no burden on the First Amendment rights of journalists. State v. Knoble, 777 P.2d 985 (Or. Ct. App. 1989).
Pennsylvania
It is a felony of the third degree to intentionally intercept, endeavor to intercept, or get any other person to intercept any wire, electronic, or oral communication without the consent of all the parties. 18 Pa. Cons. Stat. § 5703(1).
The statute is set to expire in December 2008, but could be amended and remain on the books. Under the current statutory language, consent of all parties is required to tape a conversation. 18 Pa. Cons. Stat. § 5704. Consent is not required of any parties if the parties do not have a reasonable expectation of privacy for their non-electronic communication. See definition of “oral communication,” 18 Pa. Cons. Stat. § 5702.
Anyone whose communication has been unlawfully intercepted can recover actual damages in the amount of $100 per day of violation or $1,000, whichever is greater, and also can recover punitive damages litigation costs, and attorney fees. 18 Pa. Cons. Stat. § 5725.
A person commits a misdemeanor if he views, photographs or films another person in a state of full or partial nudity without consent, under circumstances where the nude person has an expectation of privacy. 18 Pa. Cons. Stat. § 7507.1.
Rhode Island
Any person who intercepts, attempts to intercept, or gets any other person to intercept any wire, electronic, or oral communication or discloses the communication can be imprisoned for no more than five years, under Rhode Island law. R.I. Gen Laws § 11-35-21.
Under the statute, consent is not required for the taping of a non-electronic in person communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” R.I. Gen Laws § 12-5.1-1.
The statute provides for civil liability of actual damages of $100 per day for each day of violation or $1,000, whichever is higher, punitive damages, and reasonable attorney fees and other litigation expenses. R.I. Gen Laws § 12-5.1-13.
The state’s highest court has expressly recognized that the law allows the recording of conversations with the consent of one party only. Pulawski v. Blais, 506 A.2d 76 (R.I. 1986). The Supreme Court of Rhode Island has also stated that Rhode Island’s wiretapping laws should be interpreted more strictly than federal wiretapping statutes “in the interest of giving the full measure of protection to an individual’s privacy.” State v. O’Brien, 774 A.2d 89 (R.I. 2001).
South Carolina
One party can consent to the recording of a wire, electronic or oral communication. S.C. Code Ann. §§ 17-30-20, 17-30-30. It is a felony for a third party to do so. Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” S.C. Code Ann. § 17-30-15.
Anyone whose communication has been unlawfully intercepted can recover actual damages in the amount of $500 per day of violation or $25,000, whichever is greater, and also may recover punitive damages, litigation costs, and attorney fees. S.C. Code Ann. § 17-30-135.
Another South Carolina statute makes it a misdemeanor to eavesdrop or be a “Peeping Tom” on the premises of another. S.C. Code Ann. § 16-17-470. The term “Peeping Tom” includes using video or audio equipment to invade the privacy of others. However, the statute does not apply to bona fide newsgathering activities. S.C. Code Ann. § 16-17-470(E)(5).
An intermediate appellate court held that the “Peeping Tom” statute was not applicable to newspaper reporters who attempted to overhear city council proceedings during a closed executive session because the reporters were on public property—not the premises of another—and did nothing “to enable them to overhear what was going on in the executive session other than to wait in the place provided as a waiting room for reporters and other members of the public.” Neither the overhearing nor the publication of anything overheard violated the South Carolina statute. Herald Publishing Co. v. Barnwell, 351 S.E.2d 878 (S.C. App. 1986).
South Dakota
One can record an oral or wire communication without obtaining consent of all the parties if he is present to the communication. Additionally, a third party can record an oral or wire communication if one party consents. It is a felony otherwise. S.D. Codified Laws § 23A-35A-20. This crime is punishable by five years in prison and the possibility of a $10,000 fine. S.D. Codified Laws § 22-6-1.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” S.D. Codified Laws § 23A-35A-1.
Generally, the consent of one participant in any communication to the recording removes it from the type of interception prohibited under the South Dakota wiretapping statute. South Dakota v. Braddock, 452 N.W.2d 785 (S.D. 1990); Midwest Motor Sports, Inc. v. Arctic Cat Sales, Inc., 144 F.Supp.2d 1147 (D.S.D. 2001).
Using a hidden camera in a “private place” without consent is a misdemeanor. S.D. Codified Laws § 22-21-1. A “private place” is a place where one may reasonably expect to be safe from intrusion or surveillance, but not a place to which the public has access. S.D. Codified Laws § 22-1-2. Using a hidden camera in a hidden place is punishable by one-year imprisonment in county jail, a $2,000 fine, or both. S.D. Codified Laws § 22-6-2.
Tennessee
A person who is a party to a wire, oral, or electronic communication, or who has obtained the consent of at least one party, can lawfully record a communication and divulge the contents of the recorded conversation unless he has a criminal or tortious purpose. Tenn. Code Ann. § 39-13-601. Violations are punishable as felonies with jail sentences of between two and 12 years and fines not to exceed $5,000. Tenn. Code Ann. §§ 39-13-602, 40-35-111.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Tenn. Code Ann. § 40-6-303.
Anyone whose communications have been unlawfully intercepted can file a civil suit to recover the greater of actual damages or liquidated damages of $100 per day of violation or $10,000, whichever is greater. A plaintiff can also claim punitive damages, attorney fees, and litigation costs. The statute of limitations for such a lawsuit is two years. Tenn. Code Ann. § 39-13-603.
Recording or disseminating a communication carried out through a cellular or cordless phone, or disseminating the contents with knowledge of their illegal origin, without the consent of at least one party, can be punished as a felony with a potential prison sentence of between one and six years and a fine not to exceed $3,000. Tenn. Code Ann. §§ 39-13-604, 40-35-111.
It is a misdemeanor to photograph, film, or observe a person without consent where there is a reasonable expectation of privacy; when the photographing, filming or viewing “would offend or embarrass an ordinary person,” and when the filming is done for sexual purposes. Tenn. Code Ann. §§ 39-13-605, 39-13-607. Dissemination of a photograph or videotape taken in violation of these provisions is a felony. Tenn. Code Ann. §39-13-605(2).
Texas
So long as a wire, oral, or electronic communication—including the radio portion of any cordless telephone call—is not recorded for a criminal or tortious purpose, anyone who is a party to the communication, or who has the consent of a party, can lawfully record the communication and disclose its contents. Texas Penal Code § 16.02.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Texas Code Crim. Pro. Art. 18.20.
A person whose wire, oral, or electronic communication is intercepted or disclosed has a civil cause of action against the interceptor or discloser. Texas Civ. Prac. & Rem. Code § 123.002. Such a person is entitled to recover $10,000 for each occurrence, actual damages in excess of $10,000, as well as punitive damages and attorney fees and costs. Texas Civ. Prac. & Rem. Code § 123.004.
In addition, unlawful recording of a conversation or disclosure of its contents with reason to know of the illegal interception is a felony punishable by two to 20 years in prison and a fine not to exceed $10,000. Texas Penal Code § 12.33.
The U.S. Court of Appeals in New Orleans (5th Cir.) held in 2000 that a television station and reporter who obtained illegally recorded tapes of telephone conversations, but who had not participated in the illegal recording, could nonetheless be held civilly liable under the federal and Texas wiretapping statutes. Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000). The case was appealed to the U.S. Supreme Court, along with two other cases raising similar issues. The Supreme Court refused to hear the Texas case but decided in one of the other cases, Bartnicki v. Vopper, 532 U.S. 514 (2001), that media defendants could not be held liable for publishing information of public concern that was obtained unlawfully by a source where the media were blameless in the illegal interception. Following the Bartnicki decision, the parties in the Peavy case settled out of court.
Utah
An individual legally can record or disclose the contents of any wire, oral or electronic communication to which he is a party, or when at least one participant has consented to the recording, unless the person has a criminal or tortious purpose in making the recording. Utah Code Ann. § 77-23a-4.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Utah Code Ann. § 77-23a-3.
Unlawful interception of communication, including disclosure of the contents of a communication with reason to know of the illegal origin, is a felony—except that when the communication consists of the radio portion of a cellular telephone call, it is a misdemeanor. Civil liability for unlawful interception can include the greater of actual damages, mandatory damages ranging from $50 to $1,000, depending on whether it is a first or subsequent offense, $100 per day of violation, or $10,000. Equitable or declarative relief is also available under the statute. Civil actions are governed by a two-year statute of limitations. Utah Code Ann. § 77-23a-11.
Installing a hidden camera or audio recorder to tape a person in a “private place” without consent is a misdemeanor. Utah Code Ann. § 76-9-402. A “private place” is a place where one may reasonably expect to be safe from intrusion or surveillance. Utah Code Ann. §76-9-401.
Vermont
There are no specific statutes in Vermont addressing interception of communications, but the state’s highest court has held that surreptitious electronic monitoring of communications in a person’s home is an unlawful invasion of privacy. Vermont v. Geraw, 795 A.2d 1219 (Vt. 2002). The court decided that the overhearing of a conversation in a parking lot is not unlawful because the conversation was “subject to the eyes and ears of passersby.” Vermont v. Brooks, 601 A.2d (Vt. 1991).
Washington
All parties generally must consent to the interception or recording of any private communication, whether conducted by telephone, telegraph, radio or face-to-face, to comply with state law. Wash. Rev. Code § 9.73.030. The all-party consent requirement can be satisfied if “one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted.” In addition, if the conversation is to be recorded, the requisite announcement must be recorded as well. Wash. Rev. Code § 9.73.030.
A party is determined to have consented to recording if he is aware that the recording is taking place. Washington v. Modica, 149 P.3d 446 (Wash. Ct. App. 2006).
Consent to recording of real-time conversation using online discussion software is implicit because participants know the conversations will be recorded on the other party’s computer. Washington v. Townsend, 20 P.3d 1027 (Wash. Ct. App. 2001).
Moreover, an employee of a news organization engaged in newsgathering is deemed to have the requisite consent to record and divulge the contents of conversations “if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers.” Wash. Rev. Code § 0.73.030(4). Anyone speaking to an employee of a news organization who has been deemed to have given consent cannot withdraw that consent after the communication has been made. Wash. Rev. Code § 0.73.030(4).
Statutory liability exists only for nonconsensual recording or intercepting, not divulging, of private conversations. Kearney v. Kearney. 974 P.2d 872 (Wash. Ct. App. 1999). The statutory terms “record” and “intercept” do not encompass the meaning of divulge.
Whether a communication is considered “private” under the statute depends on the factual circumstances. Washington v. Townsend, 57 P.2d 255 (Wash. 2002). The state Supreme Court has identified three factors bearing on the reasonable expectations and intent of the parties: (1) duration and subject matter of the conversation, (2) location of conversation and presence or potential presence of a third party, and (3) role of the non-consenting party and his or her relationship to the consenting party. Lewis v. State Dept. of Licensing, 139 P.3d 1078 (Wash. 2006).
West Virginia
Recording a wire, oral, or electronic communication, or disclosing its contents, is not a violation of West Virginia law when the person recording is a party to the communication or has obtained consent from one of the parties, so long as the recording is not accompanied by a criminal or tortious intent. W. Va. Code § 62-1D-3.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” W. Va. Code § 62-1D-2. In West Virginia Dept. of Health and Human Resources v. Wright, the state Supreme Court held that a woman whose children’s screams could be heard by neighbors nevertheless had a reasonable expectation of privacy in her home, for purposes of the wiretapping law. 453 S.E.2d 646 (1994).
Recording any such communication, or disclosing its contents with knowledge of the illegal interception, is a felony punishable by imprisonment for not more than five years and a fine of not more than $10,000. W. Va. Code § 62-1D-12. An individual whose communications have been unlawfully intercepted can recover civil damages in the amount of actual damages, but not less than $100 per day of violation, along with punitive damages, attorney fees, and litigation costs. W. Va. Code § 62-1D-12.
Wisconsin
If the person who records the wire, electronic, or oral communication is a party to the conversation or has obtained prior consent from one party, he may lawfully record and divulge the contents of the communication, unless he does so for the purpose of committing a criminal or tortious act. Wis. Stat. § 968.31.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Wis. Stat. § 968.27.
Wisconsin law expressly authorizes civil damages for violations and allows recovery of the greater of actual damages, $100 for each day of violation or $1,000, along with punitive damages, litigation costs, and attorney fees. Wis. Stat. § 968.31.
Recording a communication without consent is criminally punishable by up to six years in prison and/ or a $10,000 fine. Wis. Stat.§ 939.50.
Wyoming
It is legal for a party to a wire, oral, or electronic communication to record that communication, and it is legal for anyone to record with the consent of one of the parties to a communication, unless the communication is intercepted to further a criminal or tortious purpose. Wyo. Stat. § 7-3-702.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Wyo. Stat. § 7-3-701.
Recording communications, or disclosing their contents with reason to believe they were obtained illegally, is a felony punishable by a fine of not more than $1,000 and imprisonment for not more than five years. Wyo. Stat. § 7-3-710. Violations also create the potential for civil liability for actual damages or $1,000 for each day of violation, whichever is more. Punitive damages, litigation costs, and attorney fees can be recovered, as well.
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