Reporter's Recording Guide
Last updated May 2020Compare
Recordings of in-person conversations generally require the consent of all parties when there is a reasonable expectation of privacy. An individual who is a party to a telephone conversation — or who has the consent of one of the parties to the communication — can lawfully record it or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act.
The state also prohibits the recording and disclosure of images recorded in violation of its hidden camera laws.
Violators can face criminal penalties under each of these laws, as well as civil penalties for the illegal recording of telephone conversations.Compare
In general, one must obtain the permission of all parties before recording private in-person conversations.
The Missouri wiretap law makes it unlawful to record any oral communication of someone with a justified expectation that the communication is not being recorded, if the recording device “transmits communications by radio or interferes with the transmission of such communication.” Mo. Ann. Stat. § 542.402.1(2). There are few cases interpreting this provision of the statute, so the cautious approach would be to get consent of all parties before recording private conversations.
However, a journalist may record, regardless of consent, conversations in public where there is no reasonable expectation of privacy.Compare
Telephone and electronic communications
A person may record a telephone or other wire communication to which they are a participant or have consent of one of the parties to the communication, unless the recording is made “for the purpose of committing any criminal or tortious act.” Mo. Ann. Stat. § 542.402.2(3).
A “wire communication” is one that is transmitted wholly or partly by the aid of “wire, cable, or other like connection between the point of origin and the point of reception.” Mo. Ann. Stat. § 542.400.12. Thus, one appellate court found that the law applies to a telephone conversation between a person using a cellular phone and one using a landline phone, Lee v. Lee, 967 S.W.2d 82 (Mo. Ct. App. 1998), but another state appellate court held that radio broadcasts from cordless telephones — before the broadcasts go through the phone line — are not wire communications subject to the eavesdropping law. Missouri v. King, 873 S.W.2d 905 (Mo. Ct. App. 1994).
Missouri courts have not yet determined whether the law would apply to conversations and text messages between two people using cellphones or other wireless devices, though some other states’ courts have found these communications to be made by the aid of “wire, cable, or other like connection.” See, e.g., Sharpe v. Nevada, 350 P.3d 388 (Nev. 2015).Compare
It is a misdemeanor to photograph or record a fully or partially nude person in a place where the person has a reasonable expectation of privacy, and to use a hidden camera, regardless of whether a person has a reasonable expectation of privacy, to “up-skirt” or “down-blouse,” or secretly photograph or record that person under or through his or her clothing. Mo. Ann. Stat. § 565.252.
The offense becomes a felony if more than one person is photographed or recorded in such a way or if the person who illegally creates the image also discloses the image. Id.
The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (e.g., filming conversations on public streets or a hotel lobby).Compare
Illegally recording an in-person conversation or wire communication is a felony offense, subject to up to four years’ imprisonment and a $10,000 fine. Mo. Ann. Stat. §§ 558.002, 558.011.
Violations of the hidden camera law are misdemeanors subject to up to one year in prison and a $2,000 fine, id., though recordings that involve more than one person or the disclosure of any illegal recording results in a felony.Compare
Anyone whose telephone or other wire communication has been recorded or disclosed in violation of the wiretap law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of violation or $10,000, and can recover punitive damages, attorney’s fees and court costs as well. Mo. Ann. Stat. § 542.418.Compare
Disclosing the contents of a telephone or other wire communication while knowing or having reason to know the information was obtained through illegal recording is a felony. Mo. Ann. Stat. § 542.402.
For someone who creates images or recordings in violation of the hidden camera law, disclosing those images or recordings will increase the offense to a felony. Mo. Ann. Stat. § 565.252.
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 Missouri, 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