Reporter's Recording Guide
Last updated June 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 it, unless the person is doing so for the purpose of committing a criminal or tortious act. Utah Code Ann. § 77-23a-4.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.” Utah Code Ann. §§ 77-23a-3, 77-23a-4. Thus, consent is not needed 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 conversation is required to record it. Utah Code Ann. § 77-23a-4. And because the provision of the law 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. Utah Code Ann. § 77-23a-3.Compare
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. §§ 76-9-401, 76-9-402. 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
Illegally recording an in-person, telephone or electronic conversation is a felony. However, where the violation is a first offense, the recording was not made with a tortious or illegal purpose or for commercial gain, and the recorded conversation is the radio portion of a cellphone call the violation is a misdemeanor offense. Utah Code Ann. § 77-23a-4.Compare
Anyone whose in-person, telephone or electronic conversation has been recorded or disclosed in violation of the law can bring a civil suit for injunctive relief and/or to recover actual damages plus profits made by the violator, $100 a day for each day of the violation, or $10,000, whichever is greater. Utah Code Ann. §§ 77-23a-11. An aggrieved party can also recover punitive damages attorney’s fees and court costs. Id.Compare
Disclosing the contents of an in-person, telephone or electronic conversation obtained through illegal recording is a felony. Utah Code Ann. § 77-23a-4.
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 Tenth Circuit, which includes Utah, has not yet held that the First Amendment protects the right to record. In Frasier v. Evans, the court held that the right was not clearly established as of August 2014, but it declined to determine whether the right exists moving forward. Frasier v. Evans, 992 F.3d 1003, 1019 (10th Cir. 2021), petition for cert. filed, No. 21-57 (U.S. July 8, 2021).Compare