Reporter's Recording Guide
Last updated May 2020Compare
An individual may record or disclose the contents of an in-person, telephone or electronic communication if he or she is a party to the communication or has received prior consent from one of the parties.
The state provides both civil and criminal penalties for violators.Compare
At least one party must give consent before someone can record an in-person conversation in Idaho. Idaho Code Ann. § 18-6702(2)(d). Consent, however, is not required to record an in-person communication spoken by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Idaho Code Ann. § 18-6701(2).Compare
Telephone and electronic communications
Recording conversations over wire or electronic communications — such as telephones, including cellphones — is allowed with the consent of at least one party to the conversation. Idaho Code Ann. § 18-6702(2)(d).
Because the provision of the statute dealing with electronic communications applies to “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature,” consent likewise is required from at least one party to disclose the contents of text or email messages sent between electronic devices. Idaho Code Ann. § 18-6701(10).Compare
The state’s video voyeurism law prohibits the installation of any devices capable of recording, storing or transmitting visual images to secretly view, broadcast or record a person, without that person’s knowledge and consent in an area where there is a reasonable expectation of privacy. Idaho Code Ann. § 18-6609(2). This statute only applies, however, when the person records “with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires of such person or another person, or for his own or another person’s lascivious entertainment or satisfaction of prurient interest.” Id.Compare
Illegally recording, intercepting or disclosing oral, wire or electronic communications is a felony punishable by up to five years in prison and as much as $5,000 in fines. Idaho Code Ann. § 18-6702. Violation of the state’s video voyeurism laws carry penalties of up to five years’ imprisonment and $50,000 in fines. Idaho Code Ann. § 18-112.Compare
Anyone whose communications have been illegally intercepted, disclosed or used may recover actual and punitive damages, along with attorney’s fees and litigation costs. Idaho Code Ann. § 18-6709.Compare
A person may not disclose or use the contents of any illegally intercepted communication if that person either knows or has reason to know it was obtained illegally. §§ 18-6702(2)(c), (d).
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 Idaho, 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