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, unless the person is doing so for the purpose of committing a criminal or tortious act. A person also can lawfully record electronic communications that are readily accessible to the general public. Utah Code Ann. § 77-23a-4 (West 2012).

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 the communication is not subject to interception, under circumstances justifying that expectation.” Utah Code Ann. § 77-23a-3. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Electronic communications: The consent of at least one party to any telephone communication is required to record it. And because the provision of the statute dealing with wireless communications applies to “any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. Id.

Hidden cameras: It is a misdemeanor to install or use a hidden camera or audio recorder in a place where one may reasonably expect to be safe from intrusion or surveillance, and to use a device for recording sounds originating in the place that would not ordinarily be audible or comprehensible outside. Utah Code Ann. §§ 76-9-402, 76-9-401. 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, except where the communication is the radio portion of a cellular telephone communication. In those cases, the violation is only a misdemeanor offense. Utah Code Ann. § 77-23a-4.

Civil suits: Anyone whose wire, electronic or oral communication has been recorded or disclosed in violation of the law, or any electronic communications service, subscriber or customer aggrieved by a violation of the law, can bring a civil suit to recover such relief as may be appropriate, including damages, attorney’s fees and court costs. Utah Code Ann. §§ 77-23a-11, 77-23b-8.

Disclosing recordings: Disclosing the contents of a wire, electronic or oral communication obtained through illegal recording is a felony. Utah Code Ann. § 77-23a-4.