August 1, 2012

Summary of statute(s): An individual must have the consent of at least one party to a conversation in order to legally record either an oral or electronic communication. Intercepting such conversations without consent is a misdemeanor. State law makes it a felony to use any camera to secretly view a person in a private area without consent.

In-person conversations: At least one party must give consent in order to record an in-person conversation, unless the person recording is a party to the conversation. Ark. Code Ann. § 5-60-120. In some instances, the court may find implied consent. For example, in 1999, the U.S. Court of Appeals (8th Cir.) held that a mother of a mentally retarded son could not hold a care facility at which her son had been a patient liable for invasion of privacy under Arkansas law, since the mother knew some of her conversations with the facility’s employees were being recorded. Alexander v. Pathfinder, Inc., 189 F.3d 735 (8th Cir. 1999).

Electronic communications: Similarly, intercepting any wire, landline, cellular or cordless phone conversation is illegal unless the person recording is a party to the conversation or at least one of the parties has given consent. Ark. Code Ann. § 5-60-120. Arkansas law also criminalizes the “interception” of a message transmitted by telephone in its public utility laws. Ark. Code Ann. § 23-17-107. However, the statute does not prohibit or restrict a Federal Communications Commission licensed amateur radio operator or anyone operating a police scanner from intercepting a communication for pleasure. Ark. Code § 5-60-120(e).

Hidden cameras: The state’s video voyeurism laws prohibits the use of any camera or “image recording device” to secretly view or videotape a person in any place where that person “is in a private area out of public view, has a reasonable expectation of privacy, and has not consented to the observation.” Ark. Code Ann. § 5-16-101.

Criminal penalties: Intercepting oral or electronic communications without consent is a misdemeanor punishable by up to a year in jail. Ark. Code Ann. § 5-4-401. In addition, the court may impose fines of up to $2,500. Ark. Code Ann. § 5-4-201. Violation of the state’s video voyeurism law is a felony punishable by up to six years in prison. Ark. Code Ann. § 5-4-401.

Disclosing recordings: Arkansas prohibits the distribution or posting to the Internet of video recordings, film or photograph in violation of its video voyeurism laws. Ark. Code Ann. § 5-16-101.