Reporter's Recording Guide
Last updated September 2019Compare
Alaska’s eavesdropping laws prohibit the use of any electronic devices to overhear or record private conversations without the consent of at least one party to the conversation. Further, the state criminalizes the disclosure of information obtained without such consent.
The state’s hidden camera law only applies to taking nude or partially nude pictures of subjects without their consent.Compare
A reporter may record any in-person conversation with a subject, as the state requires the consent of just one party to the conversation. Alaska Stat. Ann. § 42.20.310. The state’s highest court has long held that the eavesdropping statute was intended to prohibit only third-party interception of communications and thus doesn’t apply to a participant in a conversation. Palmer v. Alaska, 604 P.2d 1106, 1108 n.5 (Alaska 1979).
The statute does not specifically exclude conversations where parties do not have a reasonable expectation of privacy, such as in public places. However, the Ninth Circuit, which includes Alaska, has held that there is a First Amendment right to record matters of public interest, which “includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018).Compare
Telephone and electronic communications
Using a device to record conversations over electronic communications such as telephones is allowed with the consent of at least one party to the conversation. Alaska Stat. Ann. § 42.20.310(b). That consent includes that of the reporter initiating such electronic communication.
Because the provision of the statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent of at least one party likewise is required to disclose the contents of text or email messages sent between wireless devices. Alaska Stat. Ann. § 42.20.390.Compare
The state hidden camera law applies only to images — whether film or photograph, in print or electronic — 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 production of a picture.” Alaska Stat. Ann. § 11.61.123.Compare
Violation of the eavesdropping statute — including by disclosing illegally obtained information — is a misdemeanor with a penalty of up to a year in jail. Alaska Stat. Ann. §§ 42.20.330; 12.55.135. Additionally, those convicted of the statute face a fine of up to $25,000. Alaska Stat. Ann. § 12.55.035.
The crime of indecent viewing of photography is a misdemeanor if the subject viewed is an adult, and a felony if the subject is a minor. Alaska Stat. Ann. § 11.61.123(f).Compare
The statute does not authorize civil lawsuits against violators.Compare
A person who intercepts a private conversation cannot legally divulge or publish the information without consent of at least one party. Alaska Stat. Ann. § 42.20.300. Similarly, the law provides that any private communication a person knows or reasonably should know was obtained illegally cannot be divulged or used for anyone’s benefit. Alaska Stat. Ann. § 42.20.310.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Ninth Circuit, which includes Alaska, has held that there is a First Amendment right to record matters of public interest in public places, which “includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); see also Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).Compare