Reporter's Recording Guide
Last updated April 2020Compare
An individual who is a party to an in-person, telephone or electronic conversation, or who has the consent of one of the parties to the conversation, can lawfully record and disclose it, unless the person is doing so for the purpose of committing a criminal or tortious act. R.I. Gen. Laws § 11-35-21. An in-person, telephone or electronic conversation may also be disclosed if its contents (defined as the identities of the parties or the existence, substance, or meaning of the conversation) have become common knowledge or public information. R.I. Gen. Laws §§ 11-35-21, 12-5.1-1.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 the communication is not subject to interception under circumstances justifying that expectation.” R.I. Gen. Laws §§ 11-35-21, 12-5.1-1. Thus, consent is not required 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 call is required to record it. R.I. Gen. Laws § 11-35-21. And because the provision of the law dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. R.I. Gen. Laws § 12-5.1-1.Compare
It is a crime to photograph or record the “intimate areas” of a person in a place where the person has a reasonable expectation of privacy, to disclose any images obtained by these means, or to “look into” (using an imaging device) and record images of the interior of an occupied dwelling “for the purpose of sexual arousal, gratification or stimulation”. R.I. Gen. Laws § 11-64-2. 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
One who illegally records an in-person or electronic conversation faces a maximum of five years’ imprisonment. R.I. Gen. Laws § 11-35-21.Compare
Anyone whose telephone, electronic or oral conversation has been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of the violation, or $1,000, and can also recover punitive damages and attorney’s fees and costs. R.I. Gen. Laws § 12-5.1-13.Compare
One who discloses the contents of an in-person, telephone or electronic conversation obtained through illegal recording faces a maximum of five years’ imprisonment. R.I. Gen. Laws § 11-35-21. However, an in-person, telephone or electronic conversation may be disclosed if its contents (defined as the identities of the parties or the existence, substance, or meaning of the conversation) have become common knowledge or public information. R.I. Gen. Laws §§ 11-35-21, 12-5.1-1.
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 First Circuit, which includes Rhode Island, has held that there is a First Amendment right to record “government officials in public spaces.” Glik v. Cunniffe, 655 F.3d 78, 87 (1st Cir. 2011). This includes filming and audio recording “police carrying out their duties in public,” such as during traffic stops, so long as the officer cannot “reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.” Gericke v. Begin, 753 F.3d 1, 7–8 (1st Cir. 2014).Compare