Reporter's Recording Guide
Last updated April 2020Compare
An individual who is a party to an in-person or landline telephone conversation, or who has the consent of one of the parties to the conversation, can lawfully record it and disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act. N.D. Cent. Code § 12.1-15-02. Based on the definition of “communications,” consent is arguably not needed to record conversations over cellphones or other wireless devices, but North Dakota courts have not yet clarified this.Compare
The consent of at least one party to a conversation is required to record “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” N.D. Cent. Code §§ 12.1-15-02, 12.1-15-04. Thus, consent is not required to record conversations in public where there is no reasonable expectation of privacy. However, the law criminalizes “secret loitering around any building with the intent to overhear discourse or conversation and to “repeat or publish” such discourse or conversation “with intent to vex, annoy, or injure others.” N.D. Cent. Code § 12.1-15-02.Compare
Telephone and electronic communications
The consent of at least one party to a telephone call is required to record it. N.D. Cent. Code § 12.1-15-02. But because the prohibition is limited to communications transmitted wholly or partially through “wire, cable, or other like connection between the point of origin and the point of reception,” a journalist arguably does not need consent to record conversations between two people using cellphones or other wireless devices, or to disclose the contents of text messages sent between wireless devices. N.D. Cent. Code § 12.1-15-04. However, the courts have not yet weighed in to clarify that the law does not cover cellphone calls, so journalists should proceed with caution.Compare
It is a misdemeanor to enter another person’s property to photograph or record “sounds or events” — either from a residence or a place where a person has a reasonable expectation of privacy — and the occupant has exposed or is likely to expose his or her “intimate parts.” N.D. Cent. Code § 12.1-20-12.2. 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 in a hotel lobby).Compare
Illegally recording an in-person or landline telephone conversation is a felony offense. N.D. Cent. Code § 12.1-15-02.Compare
The law does not authorize civil lawsuits against violators.Compare
Disclosing the contents of a landline telephone or in-person conversation obtained through illegal recording is a felony. N.D. Cent. Code § 12.1-15-02. And repeating or publishing the contents of a discussion or conversation overheard while secretly loitering around a building is a misdemeanor, when done with the intent to “vex, annoy, or injure others.” Id.
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 North Dakota, 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