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Introduction to the Reporter’s Recording Guide

The Reporter’s Recording Guide provides a summary of the recording laws (which restrict the recording and dissemination of phone calls and in-person conversations) and hidden camera laws (which restrict the making and dissemination of certain surreptitious video recordings) for each state. Most of these laws have criminal penalties and permit civil lawsuits.

This introduction to the guide discusses the types of state laws that restrict recording activities; consent requirements; criminal and civil penalties; restrictions adopted by the Federal Communications Commission that apply to broadcasters; and other special circumstances.

The Reporter’s Recording Guide should not take the place of legal advice from a lawyer. Journalists with additional questions or who need help finding a lawyer can contact the Reporters Committee’s legal hotline.

Types of Laws that Restrict Recording Activities

Eavesdropping and wiretapping laws

The federal government and every state except Vermont has at least one law that restricts eavesdropping on, or recording of, private conversations.

The applicable statutes have a variety of names, such as “eavesdropping laws,” “wiretapping laws” or “intercepted communication laws.” In addition to addressing in-person or telephone conversations, the laws may also cover electronic conversations, such as emails or text messages. Because many of these laws are decades old, however, it is sometimes unclear how they apply to more modern types of communication.

Federal law requires the consent of at least one party before recording in-person, telephone or electronic conversations. 18 U.S.C. §§ 2510, 2511. It therefore establishes the minimum consent requirements across the country, though states may impose stricter rules. Vermont does not have a recording law, so the federal law is the only one that applies there. See the “Consent Requirements” section below for more information about these rules.

Hidden camera laws

Each state and the District of Columbia has laws outlawing certain uses of hidden cameras in private places, although many laws are specifically limited to attempts to record nudity. Many of these statutes also concern unattended cameras without regard to whether the person making the recording is a party to the conversation.

Most of these hidden camera laws address only the recording of video images, though some also cover audio recording. If the hidden camera law does not cover audio, the audio portion of a video recording will be subject to the state’s recording law. If your camera does not record audio, wiretap laws will generally not apply.

Invasion of privacy

Regardless of whether a state has a specific criminal law regarding the use of cameras and recordings, most states recognize some form of a more general right of privacy. Depending on the scope of that right, secret recording in a private place can prompt civil lawsuits for invasion of privacy. Read more on these issues in the Reporters Committee’s First Amendment Handbook.

Consent Requirements

The laws governing the recording of conversations address whose consent is required to do so. There are essentially two types of consent requirements: those in which a journalist must get the consent of one party to the conversation, and those where consent is necessary from all parties to the conversation. These consent requirements vary by state and sometimes even within a state, depending on the type of conversation or other circumstances. The other chapters of this guide detail the specific requirements for each state.

Under a one-party consent requirement, you can record a conversation if you are a party to that conversation. If you are not a party to the conversation, you can generally record if one party has notice of the recording and consents to it. Federal law falls under this one-party category for the recoding of in-person conversations, phone calls and other electronic communications, meaning one-party consent is the minimum requirement for these conversations across the country. 18 U.S.C. §§ 2510, 2511.

About 11 states primarily have all-party consent requirements for recording. These states are California, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan (at least for recordings made by a third party who is not involved in the conversation), Montana, New Hampshire, Pennsylvania and Washington. These laws require consent of all parties involved in a conversation before it can be recorded. These laws are sometimes called “two-party” consent laws, but technically they require all parties’ consent.

In addition, four states require all parties’ consent with respect to either in-person conversations or phone calls. For example, Missouri and Oregon require all parties’ consent with respect to in-person conversations but only one party’s consent with respect to phone calls. Conversely, Connecticut and Nevada require all parties’ consent with respect to phone calls but only one party’s consent with respect to in-person conversations.

Lastly, Hawaii and Maine require the consent of all parties to record conversations in particularly private places, but otherwise only require the consent of one party.

Regardless of the state, it is almost always illegal to record a conversation to which you are not a party, do not have any consent to record, and could not naturally overhear. Generally, you may record, film and disseminate conversations where all the parties to it consent.

Implied consent

It is generally legal to record or film a face-to-face interview when your recording device or camera is in plain view, or to record any type of conversation when the parties are warned of the recording and continue with the conversation. The consent of all parties is presumed in these instances. See, e.g., Alexander v. Pathfinder, Inc., 189 F.3d 735, 743 (8th Cir. 1999). It is a best practice, however, to record the subject’s verbal consent.

Expectation of privacy

Recording laws generally only require consent to an in-person conversation if the individuals being recorded have a reasonable expectation of privacy. Not every state’s laws make this distinction, however.

To determine whether there is a reasonable expectation of privacy in a specific situation, courts often look at the totality of the circumstances, including where the conversation occurred (was it in public? in plain view of others?), what was being discussed (was it private in nature?), and how loudly the individuals were talking (could bystanders hear?). It is not always easy to predict what a court will do, given the fact-dependent nature of the analysis. In general, though, a person’s home has special significance and in-person conversations there have the greatest expectation of privacy. Additionally, if the in-person conversation occurs in a public place, and especially if the parties are talking loudly, there is no reasonable expectation of privacy.

Criminal purpose

Under the federal statute and a majority of state laws, recording is not permitted — regardless of consent — if it is done for a criminal or tortious purpose. Recordings made as part of the newsgathering process would not fall into this category. See, e.g., Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 406 (Minn. Ct. App. 1995).

Criminal and Civil Penalties

Recording laws and hidden camera laws, regardless of the state, have criminal penalties attached. Therefore, violations can result in fines and/or jail time for each offense.

In addition, most states with recording laws create a private right of action for civil suits. Even if you think prosecutors would not bring criminal charges, a person who is secretly recorded may bring suit. Some of these laws provide for attorney’s fees and triple damages, so that could create an added incentive for a plaintiff to file suit.

Many states also create separate violations for possessing or knowingly disclosing illegally intercepted or recorded conversations, so journalists should know that publishing or airing such recordings — or even the details of such conversations — could be an additional offense. See below for more information on whether journalists can publish recordings made illegally by others.

The FCC’s Telephone Broadcast Rule

In addition to state and federal laws governing the recording of telephone conversations, television and radio broadcast journalists should be aware that the Federal Communications Commission (“FCC”) has its own rules regarding such recordings.

The FCC’s “Telephone Broadcast Rule” prohibits a broadcaster from recording a telephone conversation for broadcast — or live broadcasting a telephone conversation — without first providing notice to the other party involved in the conversation. 47 CFR § 73.1206. Broadcasters who violate this rule may be subject to monetary fines ranging from $4,000 to $51,827 per offense. 47 C.F.R. § 1.80(b)(1), (10). Although the rule has primarily been enforced against radio “shock jocks” — in particular, those who record and broadcast telephone calls made to individuals as part of a practical joke — it applies to all broadcast journalists at radio and television stations licensed by the FCC.

Specifically, the “Telephone Broadcast Rule” requires a person who intends to broadcast a telephone conversation — or record a telephone conversation for later broadcast — to inform the other party, at the beginning of the call, that the conversation is being recorded and will, or may, be broadcast. The rule does not apply, however, when the other party to the call (i) is the broadcaster’s employee and aware that the call will likely be broadcast — such as an on-air reporter — or (ii) calls in to the station, when “it is obvious” that the call “is in connection with a program in which the station customarily broadcasts telephone conversations.” 47 C.F.R. § 73.1206; see also In Re Entercom New Orleans License, LLC, 17 F.C.C. Rcd. 22538, 22539 (Enf. Bur. 2002) (finding that when a person called a radio station’s “well-publicized ‘call-in’ telephone line,” the broadcaster was not required to inform her that the call was being broadcast).

Broadcast journalists must give notice at the outset of the call and explicitly say that the call will — or may — be broadcast. The FCC upheld a $4,000 fine issued to a radio station for violating this rule where a radio host broadcast a phone call in which he had waited until mid-way through the call to inform the local officials he was speaking with of his intent to broadcast the call. Even though the radio host identified himself and his station at the beginning of the call and the officials continued the conversation after becoming aware that it would be broadcast, the FCC nevertheless found that the station had violated the rule. In the Matter of Rejoynetwork, LLC, 26 F.C.C. Rcd. 980 (Enf. Bur. 2011).

Even if a station does not ultimately air the recording, the FCC may still fine the station if its reporter made the recording with the intent to broadcast it but without giving proper notice. However, the FCC may reduce the fine if the broadcaster elects not to broadcast a recording made in violation of the rule. See In the Matter of Nassau Broad. III, LLC, Debtor-in-Possession, 27 F.C.C. Rcd. 5273, 5276–77 (Enf. Bur., Investigations & Hearings Div. 2012) (reducing fine from $4,000 to $2,000 where radio station violated Telephone Rule but immediately ceased recording after complainant objected to the call and did not broadcast the conversation).

The rule also extends to broadcasting previously recorded messages. The FCC has imposed fines for broadcasting an individual’s recorded voicemail greeting, as well as for broadcasting a voicemail message left on a radio personality’s private cell phone. In the Matter of Courier Commc’ns Corp., 23 F.C.C. Rcd. 2593 (Enf. Bur., Investigations & Hearings Div. 2008) (voicemail greeting); In the Matter of Capstar Tx Ltd. P’ship, 23 F.C.C. Rcd. 10464 (Enf. Bur., Investigations & Hearings Div. 2008) (voicemail message).

Other Special Circumstances

Interstate phone calls

When a call involves participants from different states, journalists should err on the side of caution and assume that the stricter state law will apply.

For example, a reporter in Virginia who records a phone conversation without the consent of a party in Maryland would not violate Virginia law (which has a one-party consent requirement for phone conversations) but could be liable under Maryland law (which has an all-party consent requirement). Some courts have held that the law of the state where the recording device is located applies, while other courts have held it is where the person being recorded is located. Therefore, an aggrieved party may choose to file suit in either jurisdiction, depending on which law is more favorable to the party’s claim.

Right to record government officials in public

The First Amendment generally protects filming and audio recording of government officials engaged in their duties in a public place, subject to reasonable time, place, and manner restrictions. For example, members of the press and public may record a police officer during a protest or traffic stop, so long as the person does not interfere with the officer’s ability to perform his duties.

Although the Supreme Court has not addressed the issue, six federal appellate courts have explicitly recognized this constitutional right to record under the First Amendment, reflecting a growing consensus on the matter. See Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017); Am. C. L. Union of Ill. v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 87 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

Most states’ recording laws only restrict recording in public places when participants have a reasonable expectation of privacy, and therefore state recording laws generally do not conflict with this First Amendment right. Laws that do not have such a limitation, however, may violate the First Amendment. See, e.g., Project Veritas Action Fund v. Rollins, 982 F.3d 813, 817, 836 (1st Cir. 2020) (finding that the Massachusetts recording law violates the First Amendment as to its prohibition of “secret, nonconsensual audio recording of police officers discharging their official duties in public spaces”).

In addition to protection under the First Amendment, some states, including Colorado and New York, have recently adopted statutes recognizing the right to record. State courts may also recognize the right under their state constitution, such as in Hawaii.

For more information about recording police officers at protests, see the Reporters Committee’s Police, Protesters and the Press guide.

Possessing and publishing illegally obtained recordings

As explained above, federal law and almost every state make it illegal to make, possess or disclose the contents of an illegally recorded conversation.

If a journalist receives a recording that was made illegally by someone else, whether the journalist can lawfully publish or broadcast it may first turn on whether she knows it was illegally obtained. Some state laws only prohibit disclosure if the person disclosing the recording has the knowledge that it was recorded illegally.

Even when the journalist knows the recording was made by another person illegally (for example, without the requisite consent), the First Amendment protects the journalist’s disclosure of that recording to the extent it contains truthful information of public concern, and the journalist was not engaged in the illegal conduct. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court held that several news media defendants could not be held liable under the federal wiretapping statute or Pennsylvania recording law for broadcasting information obtained through an illegal recording of a private conversation. The case arose when an unknown person illegally recorded a phone conversation between two local union officials in Pennsylvania and passed the recording to a third party, who then gave it to the news media. In deciding that the First Amendment protected the news media’s disclosure, the court stressed that the news media had clean hands — they did not engage in or encourage the illegal recording — and the recorded conversation was of significant public concern.

Courts have cited Bartnicki to find other situations in which the First Amendment outweighs any privacy interests in the disclosure of an illegal recording. For example, the U.S. Court of Appeals for the First Circuit held that the First Amendment prevented Massachusetts law enforcement officials from interfering with an individual’s online posting of an audio and video recording of an arrest and warrantless search of the arrestee’s home, even when the poster had reason to know it was recorded illegally. Jean v. Mass. State Police, 492 F.3d 24 (1st Cir. 2007).

Bartnicki and subsequent cases suggest a broad protection of the press against laws that prohibit publishing the contents of an illegal recording, at least when the journalist has “clean hands” and the conversation is of significant public concern. However, the case law is continuing to develop, and it is important to know the precedent in your particular state.

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