August 1, 2012

Summary of statute(s): An individual who is a party to an electronic communication 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. But a lawful recording of an in-person conversation requires the consent of all parties. Mo. Ann. Stat. § 542.402 (West 2012).

In-person conversations: It is unlawful to record an “oral communication,” which is defined as “any communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” Mo. Ann. Stat. § 542.400. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Electronic communications: 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.” Id. Because a telephone conversation between a person using a cellular phone and one using a regular wire phone was made in part through a regular wire telephone, the conversation was protected by the wiretap law, a Missouri appellate court held. Lee v. Lee, 967 S.W.2d 82 (Mo. Ct. App. 1998). Another state appellate court held that radio broadcasts from cordless telephones are not wire communications subject to the eavesdropping statute. Missouri v. King, 873 S.W.2d 905 (Mo. Ct. App. 1994). Thus, a journalist does not need consent to record conversations between two people using cell phones or other wireless devices. And because the statute does not differentiate between oral and written communications transmitted electronically, consent likewise is not required to disclose the contents of text messages sent between wireless devices.

Hidden cameras: 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. § 565.253. 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 (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony offense. Mo. Ann. Stat. § 542.402.

Civil suits: Anyone whose wire communication 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 violation or $10,000, and can recover punitive damages, attorney’s fees and court costs as well. Mo. Ann. Stat. § 542.418.

Disclosing recordings: Disclosing the contents of a wire communication obtained through illegal recording is a felony. Mo. Ann. Stat. § 542.402.