The legal limits of recording conduct and conversations

At first, the question of whether to tape record conduct or conversations seems like a matter of personal preference. Some information gatherers see taping as an indispensable tool, while others don’t like the formality or extra burden it may impose.

However, there are important questions of law that must be addressed first. And most often, what you want to record and where will likely dictate the legal limits of the activity.

Recording in public

The general rule is that people in public places must assume they might be photographed or recorded, particularly if they are officials carrying out their public duties. Therefore, you may photograph, film and record what you can easily see or hear in public places, even if the recorded people have not specifically consented to such, provided you do not harass, trespass or otherwise intrude. This includes shooting footage of a private property from a public sidewalk, as long as you do not engage in overzealous surveillance, such as the offensive use, for example, of a telephoto lens to record intimate activities inside the bedroom or bathroom of a private residence.

Under this general rule, it would seem you have the right to record police in the performance of their public duties. However, courts are divided on this issue; some have upheld the authority of police officers who were the subject of citizen recordings to arrest the party who made the recording and charge him or her with violating the state wiretapping or eavesdropping law’s requirement that all parties to a conversation consent to its recording. See below for more on this consent requirement.  

Recording in private

Even the most well-known public figures have a reasonable expectation of privacy when they speak in their homes or other private retreats. Accordingly, courts and the government have made it illegal for information gatherers and others to engage in any of the following activities (Always keep in mind, however, that these prohibitions may not apply to law enforcement and other government officials):

• bugging a room, secretly monitoring telephone conversations (to which the recording subject is not a party) or intercepting computer communications (publishers may, however, disseminate illegally taped conversations if they are of great public interest and the publisher broke no law in acquiring them);

• hacking into telephone systems to acquire previously recorded conversations; and

• acquiring a person’s phone records from a phone company by posing as someone authorized to see the records.

The law is generally more tolerant of participants who record their own conversations than of third parties who record conversations to which they are not a party. Even so, both federal and state statutes that govern such participant monitoring set forth situations where recording and disclosing participant communications can give rise to civil suits by the “injured” party, as well as criminal prosecution.

As such, it is critical for you to know which statutes apply to you and your rights and responsibilities under them. The Reporters Committee’s comprehensive Can We Tape? provides these answers, including a discussion of the applicable statutory provisions in your state, as well as guidance on how to proceed when you want to record an interstate telephone conversation.

When considering these statutes, pay particularly close attention to their consent requirement, or that part of the statute that dictates the number of parties to a conversation that must consent to its recording. Although only twelve states require the consent of all parties to the conversation, it is a good idea to always get consent of all parties, preferably on tape, before recording any conversation in any state.

It is also important to remember that regardless of federal or state laws, the secret recording by a participant to a conversation may be a tortious intrusion, particularly if deception is used to bring electronic eavesdropping equipment into a private place like a home.