North Dakota

August 1, 2012

Summary of statute(s): An individual who is a party to either an in-person conversation or 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. N.D. Cent. Code § 12.1-15-02 (2011).

In-person conversations: The consent of at least one party to a conversation is required to record an “oral communication,” which is defined as “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 § 12.1-15-04. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy. The statute also criminalizes the secret loitering around any building with the intent to overhear a discussion or conversation therein. N.D. Cent. Code § 12.1-15-02.

Electronic communications: The consent of at least one party to a telephone communication is required to record it. 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 does not need consent to record conversations between two people using cell phones or other wireless devices, or to disclose the contents of text messages sent between wireless devices. N.D. Cent. Code § 12.1-15-04.

Hidden cameras: It is a misdemeanor to enter another person’s property to photograph or record “sounds or events” from a residence, and from a place where a person has a reasonable expectation of privacy and has exposed 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 (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. N.D. Cent. Code § 12.1-15-02.

Disclosing recordings: Disclosing the contents of a wire or oral communication obtained through illegal recording is a felony. And repeating or publishing with the intent to “vex, annoy, or injure others” the contents of a discussion or conversation overheard while unlawfully loitering around a building is a misdemeanor. Id.