Reporter's Recording Guide
Last updated August 2021Compare
Indiana bars the recording or interception of any telephonic or electronic communication without the consent of at least one party to the conversation. It is not clear whether a journalist also needs at least one party’s consent before recording in-person conversations.
The state also prohibits disclosure of images intercepted in violation of its video voyeurism law.
Violators can face both civil and criminal penalties.Compare
The state’s interception statute does not address the recording of in-person conversations. See Whitt v. Town of New Carlisle, No. 20A-CT-2279, 2021 WL 2010143, at *3 (Ind. Ct. App. May 20, 2021).
Indiana’s separate surveillance statute, however, makes it a misdemeanor for a person to record “images or data of any kind” with a camera or other device while unattended on the private property of another person without that person’s consent. Ind. Code Ann. § 35-46-8.5-1. It is unclear if “data of any kind” would include the contents of oral conversations.Compare
Telephone and electronic communications
The statute makes it a felony to intercept or record any telephone or electronic communication using a device unless at least one party gives their consent. Ind. Code Ann. § 35-31.5-2-176, -33.5-5-5(b).
Because the provision of the statute dealing with electronic communications applies to “any transfer of signs, signals, writing, images, sounds, data, oral communication, digital information, or intelligence of any nature” made “by a wire, a radio, or an electromagnetic, a photoelectronic, or a photo-optical system,” consent likewise is required from at least one party to disclose the contents of text or email messages sent between wireless devices. Ind. Code Ann. § 35-31.5-2-110.Compare
Under Indiana’s surveillance law, it is a misdemeanor for one to place a camera or other equipment that records “images or data of any kind while unattended on the private property of another person” without that person’s consent. Ind. Code Ann. § 35-46-8.5-1.
The state’s video voyeurism law makes it a felony to secretly record images—either still or video—inside the dwelling of another person or inside areas where occupants might be expected to disrobe, such as restrooms and dressing rooms, without the occupants’ consent. Ind. Code Ann. § 35-45-4-5(c). Additionally, the voyeurism law makes it a misdemeanor to record images of the private bodily areas of a person without consent. Ind. Code Ann. § 35-45-4-5(d).
The voyeurism law also prohibits the use of drones to secretly record images or audio of people in their residences or on the land around their residences if they are in a location not visible by the public. Ind. Code Ann. § 35-45-4-5(g).Compare
Knowingly or intentionally intercepting a communication in violation of Indiana’s interception law is a felony punishable by one to six years in prison and a $10,000 fine. Ind. Code Ann. § 35-33.5-5-5(b).
Misdemeanor violations of the state’s surveillance and video voyeurism laws are punishable by one year in jail and up to $5,000 in fines. Ind. Code Ann. § 35-50-3-2. A felony charge of the voyeurism law carries penalties of six months to three years in prison and up to a $10,000 fine. Ind. Code Ann. § 35-50-2-7.Compare
Civil liability for intercepting the contents of a confidential electronic communication in violation of the state’s wiretapping law may require the payment of actual damages, $100 for each day of the violation or $1,000, whichever is greater, plus punitive damages, court costs and attorney’s fees. Ind. Code Ann. § 35-33.5-5-4.Compare
The state’s video voyeurism law makes it a felony offense to publish, transmit or post online illegal images of the subject’s private bodily area or any images captured from a drone of people in or near their residences without their consent. Ind. Code Ann. § 35-45-4-5(e), (h).
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 Seventh Circuit, which includes Indiana, has held that there is a First Amendment right to record government officials performing their duties in public. Am. C. L. Union of Ill. v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012).Compare