Reporter's Recording Guide
Last updated May 2020Compare
An individual who is a party to either an in-person or telephone conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it.
New York also prohibits images made or disclosed in violation of its hidden camera law.
Violators of both laws may be subject to criminal penalties.Compare
New York’s eavesdropping law makes it a felony to use a device to overhear or record in-person conversations at which one is not present without the consent of at least one party to that conversation. N.Y. Penal Law §§ 250.00, 250.05.
A state appellate court held that individuals who talk in a manner such that a non-participating third party may freely overhear the conversation have no reasonable expectation of privacy in it. McLaughlin v. McLaughlin, 961 N.Y.S.2d 838, 840 (N.Y. App. Div. 2013); New York v. Kirsh, 575 N.Y.S.2d 306, 307 (N.Y. App. Div. 1991). Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.Compare
Telephone and electronic communications
The consent of at least one party to any telephone or electronic communication, including those through a cellphone, is required to record it. N.Y. Penal Law §§ 250.00, 250.05; Sharon v. Sharon, 558 N.Y.S.2d 468, 470 (N.Y. Sup. Ct. 1990) (holding that the law applies to cellphones and cordless phones).
Because the provision of the law 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 messages and emails. N.Y. Penal Law § 250.00. At least one state court, however, has held the law only applies to communications “in transit,” and thus does not apply to messages — such as emails — stored after they are sent or received. People v. Thompson, 28 N.Y.S.3d 237, 244 (N.Y. Sup. Ct. 2016).Compare
It is a felony to surreptitiously photograph or record (i) “the sexual or other intimate parts” of a person or (ii) a person dressing or undressing in a place where the person has a reasonable expectation of privacy, if the recording is done for amusement, entertainment, profit or sexual gratification. N.Y. Penal Law §§ 250.45(1), (2). The law also prohibits the use of an image-capturing device in a bedroom, restroom, hotel room, changing or fitting room, if done for “no legitimate purpose.” N.Y. Penal Law §§ 250.45(3).
New York also makes it a felony 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. N.Y. Penal Law § 250.45(4).
Finally, it is a felony to surreptitiously photograph or record — for amusement, entertainment, profit, or sexual gratification — an identifiable person engaging in sexual conduct in a place where the person has a reasonable expectation of privacy. N.Y. Penal Law § 250.45(5). The hidden camera law considers a person to have a reasonable expectation of privacy if, at the time and place of the recording, a person would reasonably believe that he or she could fully disrobe in private. N.Y. Penal Law § 250.40.
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, telephone or electronic communication is a felony offense punishable by up to four years in prison and a $5,000 fine. N.Y. Penal Law §§ 70.00, 80.00.
Violations of New York’s hidden camera law are also felonies carrying the same potential penalties, with enhanced penalties for those previously convicted within the past 10 years. Id. Felony disclosures under the hidden camera law are punishable by up to four years in prison and a $5,000 fine, while misdemeanor violations are subject to up to 364 days in prison and a fine of $1,000. N.Y. Penal Law §§ 70.15, 80.05.Compare
New York’s eavesdropping law does not authorize any civil penalties. Greenfield v. Schultz, 673 N.Y.S.2d 684, 685 (N.Y. App. Div. 1998). Similarly, the hidden camera law also does not permit civil penalties.Compare
New York’s eavesdropping law does not prohibit the disclosure of recorded communications.
Disseminating images that the individual knows were recorded in a way that violates New York’s hidden camera law is generally a misdemeanor. N.Y. Penal Law § 250.55. However, disseminating images taken in violation of the hidden camera law is a felony when the image includes the “sexual or other intimate parts” of the subject, or the same person who recorded the images also disseminated them. N.Y. Penal Law § 250.60.
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 Second Circuit, which includes New York, has not yet directly addressed the First Amendment right to record.
A New York statute, however, protects the right to record law enforcement officers, as long as the person recording is not under arrest or otherwise in the custody of police. N.Y. Civ. Rights Law § 79-p. The statute also excludes any “actions that physically interfere with law enforcement activity or otherwise constitute a crime.” Id.
If a police officer interferes with an individual’s right to record — including by preventing the recording, threatening the person, commanding them to stop recording, or taking the recording equipment — that person may bring a civil suit for damages and attorneys’ fees. Id.Compare