Reporter's Recording Guide
Last updated October 2019Compare
In the District of Columbia, an individual may record or disclose the contents of an in-person or phone conversation if he or she is a party to the communication or has received prior consent from one of the parties.
The District’s voyeurism law prohibits secretly taking images of people in private settings and distributing them without consent.
Both the recording and voyeurism laws have criminal penalties, and the recording law provides civil penalties.Compare
The consent of at least one participant to a conversation is required before any recording can take place under the District’s wiretapping law. D.C. Code § 23-542. This means a reporter’s recorded conversation with a source, without the source’s permission, would be permissible, since the reporter was a party to the conversation.
There is also no need to obtain consent to record conversations held in public places, where there is no reasonable expectation of privacy. See definition of “oral communication,” D.C. Code § 23-541(2).Compare
Telephone and electronic communications
Intercepting or recording any “wire,” or landline phone conversations, is illegal unless the person recording is a party to the conversation or at least one of the parties has given consent. D.C. Code § 23-542.
The D.C. Court of Appeals has also applied the law to cellphone conversations. See Thomas v. United States, 171 A.3d 151 (D.C. App. 2017).Compare
The District’s voyeurism law prohibits stationing oneself in a “hidden observation post” or installing any electronic device to secretly record another person using a restroom, undressing, or engaging in sexual activity. D.C. Code § 22-3531.Compare
Recording or distributing the contents of any recordings of communications made without proper consent can be punished criminally by a fine of no more than $12,500 or imprisonment for up to five years, or both. D.C. Code § 23-542.
Violating the District’s voyeurism law is a misdemeanor punishable by up to a year in prison and fines of up to $2,500. D.C. Code § 22-3531(f).
Distribution of images in violation of the District’s voyeurism law is a felony punishable by up to five years’ imprisonment and fines not more than $12,500. D.C. Code § 22-3531(f)(2).Compare
Anyone who illegally records, uses 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 the violation, or $1,000, along with punitive damages, attorney’s fees and litigation costs. D.C. Code § 23-554.Compare
The District prohibits disclosure of the contents of an illegally recorded communication if that person knows or has reason to know the information was recorded illegally. However, such disclosure cannot be punished criminally if the contents of the communication have “become common knowledge or public information.” D.C. Code § 23-542.
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 D.C. Circuit has not yet directly addressed the First Amendment right to record.Compare