Reporter's Recording Guide
Last updated May 2020Compare
Minnesota bars the recording, interception, use or disclosure of any in-person, telephonic or electronic communication without the consent of at least one party to the conversation.
The state also prohibits the recording and disclosure of images intercepted in violation of its hidden camera laws.
Violators can face both civil and criminal penalties.Compare
A person may record an in-person conversation if that person is a party to it, or if one of the parties has consented to the recording — so long as no criminal or tortious intent accompanies the recording. Minn. Stat. § 626A.02(2)(d). Recordings made with at least one party’s consent and exclusively for the purpose of news reporting therefore do not violate Minnesota’s recording law. Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 406 (Minn. Ct. App. 1995).
However, a person does not need consent to record conversations in places in which the parties do not have a reasonable expectation of privacy. See definition of “oral communication,” Minn. Stat. § 626A.01.Compare
Telephone and electronic communications
A person cannot intentionally intercept or record any telephone or electronic communication unless that person is either a participant or has the consent of at least one party to the communication — so long as the recording is not done for a criminal or tortious purpose. Minn. Stat. § 626A.02(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 of at least one party likewise is required to disclose the contents of text or email messages sent between electronic devices. Id.Compare
The state’s privacy law prohibits trespassing on private property to secretly install or use any type of device for “observing, photographing, recording, amplifying, or broadcasting sounds or events” through the window of another person’s home. Minn. Stat. § 609.746.
Additionally, the statute bans someone from secretly installing or using any type of device for “observing, photographing, recording, amplifying, or broadcasting sounds or events” through the window of a hotel room, tanning booth or any location where a person would have a reasonable expectation of privacy and either has undressed or will likely expose some part of the naked body. Id.Compare
Unlawful recordings, or disclosure of their contents when there is reason to know the information was obtained illegally, carry maximum penalties of imprisonment for five years and fines of $20,000. Minn. Stat. § 626A.02(4).
Violation of the state’s hidden camera law is a gross misdemeanor punishable by up to one year imprisonment and a $3,000 fine. Minn. Stat. §§ 609.03, 609.746.Compare
Anyone whose in-person, telephone or electronic communications were intercepted, recorded or disclosed in violation of the wiretapping law can sue for injunctive relief, and the defendant may have to pay three times the amount of actual damages (plus any profits the defendant made), $100 per day or $10,000, whichever is greater. Minn. Stat. § 626A.13. In addition, the court may award punitive damages, litigation costs and attorney’s fees. Id.Compare
A person may not disclose or use the contents of any intercepted communication if that person either knows or has reason to know it was obtained in violation of the state’s wiretapping laws. Minn. Stat. § 626A.02.
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 Eighth Circuit, which includes Minnesota, has not yet directly addressed the First Amendment right to record, although it has favorably cited the federal courts of appeal that have recognized a right to record police activity in public. Chestnut v. Wallace, 947 F.3d 1085, 1090 (8th Cir. 2020).Compare