Reporter's Recording Guide
Last updated July 2022Compare
Kansas bars the recording, interception, use or disclosure of any private conversation without the consent of at least one party to the conversation.
The state also prohibits the recording and disclosure of images captured illegally with a hidden camera.
Violators can face both civil and criminal penalties.Compare
The state’s privacy law makes it a misdemeanor to secretly use any device to listen to, record or amplify a private conversation in a private place "without the consent of the person or persons entitled to privacy therein.” Kan. Stat. Ann. § 21-6101(a)(4). The Kansas Supreme Court has interpreted this, however, to require only one party’s consent; once one party provides consent, the non-consenting parties lose their right to challenge the recording. State v. Roudybush, 686 P.2d 100, 108 (Kan. 1984).
The law also prohibits a person from entering a private place with the intent to secretly listen to private conversations there. Kan. Stat. Ann. § 21-6101(a)(3).
The law defines a “private place” as somewhere a person has a reasonable expectation of privacy. Kan. Stat. Ann. § 21-6101(f). Therefore, one does not need consent to record conversations in public and in other places in which the parties do not have a reasonable expectation of privacy.Compare
Telephone and electronic communications
The state’s breach of privacy law makes it a misdemeanor to intercept any message sent “by telephone, telegraph, letter or other means of private communication” without the consent of at least one party to the communication. Kan. Stat. Ann. § 21-6101(a)(1).
A Kansas intermediate appellate court has held that the interception must occur while the message is in transit—such as through a telephone wiretap—and thus found that reviewing emails months after they were sent did not violate the law. State v. Brooks, 265 P.3d 1175, 1190 (Kan. Ct. Apps. 2011), rev'd on other grounds, 317 P.3d 54 (Kan. 2014).Compare
It is a felony to install or use a hidden camera to film or photograph a person who is nude or in a state of undress without the person’s consent in a place where the person has a reasonable expectation such filming would not take place. Kan. Stat. Ann. § 21-6101(a)(6).
The law also prohibits the concealed photography and video recordings of an individual’s body either under or through that person’s clothing without that person’s knowledge or consent. Id.Compare
Illegally recording, intercepting or divulging the contents of any private communications is a misdemeanor punishable by up to a year in jail and a court fine of up to $2,500. Kan. Stat. Ann. § 21-6602, -6611.
Secretly taking video images in violation of the law is a felony punishable by 15 to 17 months in prison and a fine of up to $100,000, with even harsher penalties for disseminating the images. Kan. Stat. Ann. § 21--6611, -6804.Compare
Anyone whose confidential oral, wire or electronic communications are intercepted, disclosed or used in violation of the state’s laws may recover in a civil suit the payment of actual damages, $100 per day or $1,000, whichever is greater, plus potential punitive damages, attorney’s fees and other litigation costs. Kan. Stat. Ann. §22-2518.Compare
Divulging the existence or contents of any type of private communication without the consent of at least one party is a misdemeanor if the person knows the message was intercepted illegally. Kan. Stat. Ann. § 21-6101(a)(2).
Disseminating any video, photo or image taken with a concealed camera used to take nude images of another person without consent is a felony. Kan. Stat. Ann. §§ 21-6101(a)(7), -(b)(3). The statute also prohibits the dissemination of video or photos of an identifiable person who is nude or engaged in sexual activity for the purpose of harassment or intimidation, but this prohibition specifically excludes dissemination done for “a bona fide and lawful scientific, educational, governmental, news or other similar public purpose.” Kan. Stat. Ann. §§ 21-6101(a)(8), (e).
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 Tenth Circuit, which includes Kansas, has held that “there is a First Amendment right to film the police performing their duties in public.” Irizarry v. Yehia, -- 4th ----, 2022 WL 2659462, at *6 (10th Cir. July 11, 2022). The Tenth Circuit noted that this right “falls squarely within the First Amendment’s core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power.” Id. at *9.Compare