Reporter's Recording Guide Reporter's Recording Guide

Summer 2012

Reporter’s

Recording

Guide

Reporter’s

Recording

Guide

A state-by-state guide

to taping phone calls and

in-person conversations

2 The Reporters Committee for Freedom of the Press

Introduction

At ﬁrst, the question of whether or not to tape record

a phone call seems like a matter of personal preference.

Some journalists see taping as an indispensable tool, while

others don’t like the formality it may impose during an

interview. Some would not consider taping a call without

the subject’s consent, others do it routinely.

However, there are important questions of law that must

be addressed ﬁrst. Both federal and state statutes govern

the use of electronic recording equipment. The unlawful

use of such equipment can give rise not only to a civil suit

by the “injured” party, but also criminal prosecution.

Accordingly, it is critical that journalists know the stat-

utes that apply and what their rights and responsibilities

are when recording and disclosing communications.

Although most of these statutes address wiretapping and

eavesdropping — listening in on conversations of others

without their knowledge — they usually apply to electronic

recording of any conversations, including phone calls and

in-person interviews.

Federal law allows recording of phone calls and other

electronic communications with the consent of at least one

party to the call. A majority of the states and territories

have adopted wiretapping statutes based on the federal

law, although most also have extended the law to cover in-

person conversations. Thirty-eight states and the District

of Columbia permit individuals to record conversations to

which they are a party without informing the other parties

that they are doing so. These laws are referred to as “one-

party consent” statutes, and as long as you are a party to

the conversation, it is legal for you to record it. (Nevada

also has a one-party consent statute, but the state Supreme

Court has interpreted it as an all-party rule.)

Twelve states require, under most circumstances, the

consent of all parties to a conversation. Those jurisdic-

tions are California, Connecticut, Florida, Illinois, Mary-

land, Massachusetts, Michigan, Montana, Nevada, New

Hampshire, Pennsylvania and Washington. Be aware that

you will sometimes hear these referred to inaccurately

as “two-party consent” laws. If there are more than two

people involved in the conversation, all must consent to

the taping.

Regardless of the state, it is almost always illegal to record

a conversation to which you are not a party, do not have

consent to tape, and could not naturally overhear.

Federal law and most state laws also make it illegal to dis-

close the contents of an illegally intercepted call or com-

munication.

At least 24 states have laws outlawing certain uses of hid-

den cameras in private places, although many of the laws

are speciﬁcally limited to attempts to record nudity. Also,

many of the statutes concern unattended hidden cameras,

not cameras hidden on a person engaged in a conversa-

tion. Journalists should be aware, however, that the audio

portion of a videotape will be treated under the regular

wiretapping laws in any state. And regardless of whether

a state has a criminal law regarding cameras, undercover

recording in a private place can prompt civil lawsuits for

invasion of privacy.

This guide provides a quick reference to the speciﬁc

provisions of each jurisdiction’s wiretap law. It outlines

whether one-party or all-party consent is required to per-

mit recording of a conversation, and provides the legal

citations for wiretap statutes. Some references to case law

have been provided in instances where courts have pro-

vided further guidance on the law. Penalties for violations

of the law are described, including criminal penalties (jail

and ﬁnes) and civil damages (money that a court may order

the violator to pay to the subject of the taping). Instances

where the law speciﬁcally includes cellular calls and the

wireless portion of cordless phone calls also are noted, but

many laws are purposely broad enough to encompass such

calls without speciﬁcally mentioning them.

Sidebar articles throughout the guide address speciﬁc

issues related to taping. Note that these are general discus-

sions, and you will have to consult the state entries to see

how these issues apply in particular states.

Important notice

This guide is meant as a general introduction for

journalists to the state of the law concerning electronic

recording and its implications. It does not take the place

of legal advice from a lawyer in your state when you are

confronted with a legal problem. Journalists who have

additional questions or who need to ﬁnd a lawyer can

contact the Reporters Committee at (800) 336-4243.

Because this guide was written with the needs of

journalists in mind, it does not address all aspects of

electronic recording laws, including the issues of taping

family members’ calls and using a tape recording as evi-

dence in a lawsuit or prosecution. Non-journalists who

have questions about taping should contact an attorney

in their state.

This guide was researched and written by McCormick Legal Fellow Kristen Rasmussen, Ethics and Excellence in Journalism

Legal Fellow Jack Komperda and legal intern Raymond Baldino. They built on the work of legal fellows and interns who con-

Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 1100, Arlington, Va. 22209.

Reporter’s Recording Guide 3

Tape-recording laws at a glance

Is consent of

all parties

required?

Are there

criminal

penalties?

Does the

statute allow

for civil suits?

Is there a

speciﬁc

hidden

camera law?

Are there

additional

penalties for

disclosing or

publishing

information?

Federal ✓ ✓ ✓

Alabama ✓ ✓ ✓

Alaska ✓ ✓ ✓

Arizona ✓ ✓ ✓ ✓

Arkansas ✓ ✓ ✓

California ✓ ✓ ✓ ✓ ✓

Colorado ✓ ✓ ✓

Connecticut ✓ ✓ ✓ ✓ ✓

Delaware ✓ ✓ ✓ ✓

District of Columbia ✓ ✓ ✓ ✓

Florida ✓ ✓ ✓ ✓ ✓

Georgia ✓ ✓ ✓

Hawaii ✓ ✓ ✓ ✓

Idaho ✓ ✓ ✓ ✓

Illinois ✓ ✓ ✓ ✓ ✓

Indiana ✓ ✓ ✓ ✓

Iowa ✓ ✓ ✓ ✓

Kansas ✓ ✓ ✓ ✓

Kentucky ✓ ✓ ✓

Louisiana ✓ ✓ ✓ ✓

Maine ✓ ✓ ✓ ✓

Maryland ✓ ✓ ✓ ✓ ✓

Massachusetts ✓ ✓ ✓ ✓ ✓

Michigan ✓ ✓ ✓ ✓ ✓

Minnesota ✓ ✓ ✓ ✓

Mississippi ✓ ✓ ✓ ✓

Missouri ✓ ✓ ✓ ✓

Montana ✓ ✓ ✓

Nebraska ✓ ✓ ✓ ✓

Nevada ✓ ✓ ✓ ✓ ✓

New Hampshire ✓ ✓ ✓ ✓ ✓

New Jersey ✓ ✓ ✓ ✓

New Mexico ✓ ✓ ✓ ✓

New York ✓ ✓ ✓

North Carolina ✓ ✓ ✓ ✓

North Dakota ✓ ✓ ✓

Ohio ✓ ✓ ✓ ✓

Oklahoma ✓ ✓ ✓

Oregon ✓ ✓ ✓ ✓

Pennsylvania ✓ ✓ ✓ ✓ ✓

Rhode Island ✓ ✓ ✓ ✓

South Carolina ✓ ✓ ✓ ✓

South Dakota ✓ ✓

Tennessee ✓ ✓ ✓ ✓

Texas ✓ ✓ ✓ ✓

Utah ✓ ✓ ✓ ✓

Vermont ✓

Virginia ✓ ✓ ✓ ✓

Washington ✓ ✓ ✓ ✓

West Virginia ✓ ✓ ✓ ✓

Wisconsin ✓ ✓ ✓ ✓

Wyoming ✓ ✓ ✓ ✓

4 The Reporters Committee for Freedom of the Press

Alabama

Summary of statute(s): Alabama law sets

criminal penalties for recording or disclos-

ing private communication of others with-

out the consent of at least one of the per-

sons involved. The statute also bans secret

observations while trespassing on private

property. Those divulging illegally obtained

communications also face criminal penalties.

In-person conversations: The consent

of at least one party to a communication is

needed to record a private conversation. Ala.

Code §13A-11-30. This means a reporter’s

tape-recorded conversation with a source

would be permissible. However, there is no

need to obtain consent to record conversa-

tions held in public places, where there is no

reasonable expectation of privacy. See deﬁni-

tion of “private place,” Ala. Code § 13A-11-

30(2).

Electronic communications: Alabama’s

criminal eavesdropping law prohibits the

use of “any device” to overhear or record

communications without the consent of at

least one party engaged in the communica-

tion being recorded. Ala. Code §13A-11-31.

Hidden cameras: Intentionally engaging

in secret observation or photography while

trespassing on private property is consid-

ered unlawful “criminal surveillance.” Ala.

Code § 13A-11-32. The law, however, does

not criminalize the use of any such record-

ing devices positioned in areas to which the

public has access (i.e., ﬁlming conversations

on public streets or a hotel lobby).

Criminal penalties: Unlawful eavesdrop-

ping is a misdemeanor carrying a maximum

penalty of one year in jail. Ala. Code § 13A-

5-7. Criminal surveillance and disclosing

Consent and its limits

the taping illegal under the wiretap act, the

court held. Because the employees “pro-

duced no probative evidence that ABC had

an illegal or tortious purpose” when it made

the tape, the reporter did not violate the

federal statute. (Sussman v. American Broad-

casting Co.)

In another case, an ophthalmologist who

agreed to be interviewed for “Primetime

Live” sued ABC under the federal wiretap-

ping statute for videotaping consultations

between the doctor and individuals posing

as patients who were equipped with hid-

den cameras. The U.S. Court of Appeals

in Chicago (7th Cir.) rejected the doctor’s

wiretapping claim because the federal stat-

ute requires only one-party consent, and

the undercover patients had consented to

the taping. The court further held that the

network did not send the testers o the doc-

tor for the purpose of defaming the doctor,

and that therefore ABC did not engage in

the taping for a criminal or tortious purpose.

(Desnick v. ABC)

These cases make two points journalists

should remember when they think about

taping a conversation: consent requirements

under state and federal laws must always be

met, and even then taping can be illegal if it

is done in furtherance of a crime.

Trespass. A party whose conversation

is surreptitiously recorded, whether with a

tape recorder or a hidden camera, may also

raise such newsgathering claims as trespass

and intrusion, examining the issue of the

scope of a party’s consent. For example, in

Desnick, the doctor sued the network for

trespass because he did not know of the

taping. But the court stated that consent to

an entry is “often given legal effect” even

though the entrant “has intentions that if

known to the owner of the property would

cause him ... to revoke his consent.”

On the other hand, the U.S. Court of

Appeals in Richmond (4th Cir.) ruled in

October 1999 that ABC reporters—again

with “Primetime Live”—who obtained jobs

with a Food Lion grocery store and there-

fore had legal permission to be in nonpublic

areas of the store nonetheless exceeded the

scope of that permission by using hidden

cameras on the job. Food Lion had not con-

sented to their presence for the purpose of

recording footage that would be televised,

the court held, and therefore the reporters’

presence in the nonpublic areas constituted

trespass.

However, Food Lion could not prove

it was damaged by the trespass, the court

found. Damage to its reputation caused

by the resulting story was due to the facts

reported in the story that alarmed consum-

ers, not due to the trespass, the court held.

As a result, Food Lion was only able to

recover nominal damages of one dollar for

the trespass claim. (Food Lion Inc. v. Capital

Cities/ABC Inc.)

Expectations of privacy. The other issue

that courts address in evaluating these cases

is whether or not the plaintiffs had a reason-

able expectation of privacy in the area where

the ﬁlming took place. In Desnick, the court

held that the doctor did not have such an

expectation of privacy in an area where he

brought his patients.

A medical testing lab in Arizona sued ABC

over another “Primetime Live” segment,

which focused on error rates among labora-

tories that analyze women’s Pap smears for

cancer. Producers from ABC posed as lab

technicians and ﬁlmed the inside of the lab

with a hidden camera. The U.S. Court of

Appeals in San Francisco (9th Cir.) dismissed

the lab’s privacy claim. The undercover

journalists ﬁlmed portions of the lab that

were open to the public and were escorted

by the lab’s owners into a conference room.

The court said the lab and its workers did

Generally, you may record, ﬁlm, broad-

cast or amplify any conversation where

all the parties to it consent. It is always

legal to tape or ﬁlm a face-to-face inter-

view when your recorder or camera is in

plain view. The consent of all parties is

presumed in these instances.

The use of hidden cameras is only

covered by the wiretap and eavesdrop-

ping laws if the camera also records an

audio track. However, a number of states

have adopted laws speciﬁcally banning

the use of video and still cameras where

the subject has an expectation of privacy

although some of the laws are much more

speciﬁc. Maryland’s law, for example, bans

the use of hidden cameras in bathrooms

and dressing rooms.

Whether using an audiotape recorder

or a hidden camera, journalists need to

know about the limits to their use.

Criminal purpose. Federal law

requires only one-party consent to the

recording and disclosure of a telephone

conversation, but explicitly does not pro-

tect the taping if it is done for a criminal

or tortious purpose. Many states have

similar exceptions. Employees of a “psy-

chic hotline” who were secretly recorded

by an undercover reporter working for

“Primetime Live” sued ABC for viola-

tion of the federal wiretapping statute,

arguing that the taping was done for

the illegal purposes of invading the

employees’ privacy. The federal appel-

late court in Pasadena (9th Cir.) afﬁrmed

the dismissal of the employees’ claim in

September 1999. According to the court,

an otherwise legal taping that is done to

achieve a “further impropriety, such as

blackmail,” becomes a violation of the

law. But even if ABC’s means of taping

were illegal because the act violated the

employee’s privacy, that does not make

State-by-state guide

Reporter’s Recording Guide 5

information obtained through these meth-

ods are misdemeanors carrying a maximum

jail sentence of six months. Ala. Code §

13A-5-7. Installing an eavesdropping device

on private property is considered a felony

offense carrying a prison sentence between

one and 10 years. Ala. Code § 13A-11-33.

Disclosing recordings: A person cannot

knowingly or recklessly divulge information

obtained through illegal eavesdropping or

surveillance. Ala. Code § 13A-11-35.

Alaska

Summary of statute(s): Alaska’s eaves-

dropping laws prohibit the use of any elec-

tronic devices to hear or record private

conversations without the consent of at least

one party to the conversation. Further, the

state criminalizes the disclosure of informa-

tion obtained without such consent. The

state’s hidden camera law only applies to

taking nude or partially nude pictures of

subjects without their consent.

In-person conversations: A reporter may

tape any in-person conversation with a sub-

ject, as the state requires the consent of just

one party to the conversation. Alaska Stat.

Ann. § 42.20.310. The state’s highest court

has long held that the eavesdropping statute

was intended to prohibit only third-party

interception of communications and thus

doesn’t apply to a participant in a conversa-

tion. Palmer v. Alaska, 604 P.2d 1106 (Alaska

1979).

Electronic communications: Similarly,

using a device to record conversations over

electronic communications such as tele-

phones is allowed with the consent of at

least one party to the conversation. Alaska

Stat. Ann. § 42.20.310(b). That consent

includes that of the reporter initiating such

electronic communication. Because the pro-

vision of the statute dealing with wireless

communications applies to “any transfer of

signs, signals, writing, images, sounds, data

or intelligence” of any nature, consent like-

wise is required to disclose the contents of

text or e-mail messages sent between wire-

less devices. Alaska Stat. Ann. § 42.20.390.

Hidden cameras: The state law applies

only to images — whether ﬁlm or photo-

not have a reasonable expectation of pri-

vacy, because the areas ﬁlmed were open to

the journalists, and none of the discussions

caught on tape were of a personal nature.

(Medical Laboratory Management Consultants

v. ABC, Inc.)

In yet another case against ABC, a court

ruled that police ofﬁcers who were secretly

videotaped while they were searching a car

did not have a claim under New Jersey’s

wiretapping law. The ofﬁcers had no rea-

sonable expectation of privacy in a conver-

sation that occurred in a car on the shoulder

of a busy highway, the New Jersey appeals

court ruled. Moreover, police ofﬁcers have

a diminished expectation of privacy because

they hold a position of trust. Thus, the tap-

ing, done for a show on racial proﬁling, was

legal. (Hornberger v. ABC, Inc.)

In California, when conservative activ-

ists James O’Keefe III and Hanna Giles

secretly recorded an ACORN employee in

an ACORN ofﬁce for the purpose of expose

journalism, the Supreme Court of Califor-

nia rejected a First Amendment challenge

to the expectations of privacy standard cre-

ated under California’s wiretapping statute.

Under California law, tape recording can be

found unlawful when it violates “objectively

reasonable expectations” that a conversation

will not be recorded. Notably, the report-

ers had created the impression with the

ACORN employee whom they recorded

that they were seeking a conﬁdential dis-

cussion. The court held that the privacy

standard of California’s wiretapping law did

not violate the First Amendment by work-

ing a chilling effect on expose journalism,

as defendant O’Keefe argued. Instead, the

court found O’Keefe and Giles could both

be charged under the California wiretap-

ping law for their surreptitious recording.

(Vera v. O’Keefe)

Filming individuals in their homes is

always a more risky venture. In a Minne-

sota case, a veterinarian making a house call

obtained permission to bring a student with

him, but failed to inform the homeowners

that the student was an employee of a tele-

vision station. The student surreptitiously

videotaped the doctor’s treatment of the

family cat in their home. The state Court of

Appeals upheld the trespass claim because,

unlike cases where the taping took place in

an ofﬁce, the family had a reasonable expec-

tation of privacy in their home. (Copeland v.

Hubbard Broadcasting, Inc.)

But in Alvarado v. KOB-TV, the U.S. Court

of Appeals in Denver (10th Cir.) ruled that

eporters did not intrude upon the seclusion

of undercover ofﬁcers in ﬁlming them when

they came to the doors of their residences to

decline to talk to news media, because this

conduct would not be highly offensive to a

“reasonable person.”

Journalists should be aware that privacy

standards vary state by state, and that these

cases serve as general examples to how states

view reasonable expectations of privacy

when taping.

Other consent issues. The validity of

consent has also been upheld where the

party was mistaken about the terms. In a

California case, a woman sued CBS for

trespass and intrusion when a camera crew

accompanied a crisis intervention team into

her home in response to a domestic violence

call. The woman conceded that she had con-

sented to the videotaping, but stated that she

was led to believe that the camera crew was

afﬁliated with the district attorney’s ofﬁce.

The court held that the state statutes gov-

erning trespass and intrusion did not require

that the individual’s consent be “knowing or

meaningful,” even if the consent was “fraud-

ulently induced,” and that the camera crew

had acted within the scope of the woman’s

consent. (Baugh v. CBS)

In recent years the widespread availabil-

ity of handheld cell phone cameras and

other digital recording devices have tested

the limits of the freedom to tape when a

device is in plain view. Use of these devices

by reporters or citizen journalists to record

police — even when they are thought to

be in plain view — may carry the risk of

arrest. For example, in Massachusetts, an

all-party consent state, individuals have

been arrested when using publicly vis-

ible digital recording devices to record

police. Massachusetts recording law

makes any secretive recording unlaw-

ful, and arrests have been made of those

recording the police with devices such

as cell phone cameras, under the argu-

ment that these recordings were secre-

tive. In 2007, Simon Glik was arrested

under the Massachusetts wiretapping

law for openly recording with his cell

phone what he believed to be an unlawful

arrest on the Boston Common. Though

the charges were dropped and the U.S.

Court of Appeals in Boston (1st Cir.)

later afﬁrmed Glik’s First Amendment

right to record police in public (Glik v.

Cuniffe), recording in Massachusetts may

still carry risks.

Illinois is another all-party consent

state whose broad eavesdropping stat-

ute might be used against journalists

recording police activity with devices

in plain view. The state’s eavesdropping

statute bans any taping without the con-

sent of all parties, regardless of whether

there is an expectation of privacy. In a

recent case, the American Civil Lib-

erties Union of Illinois successfully

challenged the law and won a decision

which halted the statute being applied

against the ACLU’s recording of ofﬁ-

cial police activity, when that police

activity is audible and public. (ACLU v.

Alvarez) However, the Illinois statute,

which the Alvarez court described as

“the broadest of its kind,” has not been

overturned. The risk of being charged

under the statute may still exist for

reporters or citizen journalists who

record police activity in Illinois, even

when they use recording devices that

are in plain view.

6 The Reporters Committee for Freedom of the Press

graph, in print or electronic — that include

nudity. A person who views or produces a

picture of a nude or partially nude person

without consent commits the crime of

“indecent viewing or photography.” Alaska

Stat. Ann. § 11.61.123.

Criminal penalties: Violation of the

eavesdropping statute is a misdemeanor car-

rying a penalty of up to a year in jail. Alaska

Stat. Ann. § 42.20.330. Additionally, those

convicted of the statute face a ﬁne of up to

$10,000. Alaska Stat. Ann. § 12.55.035. The

crime of indecent viewing or photography

is a misdemeanor if the subject viewed is an

adult, and a felony if the subject is a minor.

Alaska Stat. Ann. § 11.61.123(f).

Disclosing recordings: A person who

intercepts a private conversation cannot

legally divulge or publish the information

without consent of at least one party. Alaska

Stat. Ann. § 42.20.300. Similarly, any private

communication a person knows or reason-

ably should know was obtained illegally can-

not be divulged or used for anyone’s beneﬁt.

Alaska Stat. Ann. § 42.20.310.

Arizona

Summary of statute(s): An individual not

involved or present at a conversation must

have the consent of at least one party in

order to legally record either an oral or elec-

tronic communication. Intercepting such

conversations without consent is a felony

under Arizona law. This excludes situations

where the person does not have a reasonable

expectation of privacy. The state allows for

civil suits for violations of its eavesdropping

laws.

In-person conversations: Consent is

required for the taping of a conversation

spoken by a person who has a justiﬁed

expectation that the conversation will not be

intercepted. See deﬁnition of “oral commu-

nication,” Ariz. Rev. Stat. Ann. § 13-3001.

Absent that expectation, no consent is

required. For example, a state appellate

court has held that a criminal defendant’s

contention that police ofﬁcers violated the

state’s eavesdropping law by recording a

conversation between him and his girlfriend

without his consent was meritless because

the pair had no reasonable expectation of

privacy in a police interrogation room. Ari-

zona v. Hauss, 688 P.2d 1051 (Ariz. Ct. App.

1984). Therefore, recording in public places

such as streets or parks is allowed absent any

consent.

Electronic communications: A per-

son cannot use any device to overhear or

record a wire or electronic communication,

including wireless or cellular calls, without

the consent of at least one party to the con-

versation, unless the person recording is a

party to the conversation. Ariz. Rev. Stat.

Ann. § 13-3005. Because the provision of

the statute dealing with wireless commu-

nications applies to “any transfer of signs,

signals, writing, images, sounds, data or

intelligence” of any nature, consent likewise

is required to disclose the contents of text

or e-mail messages sent between wireless

devices. Ariz. Rev. Stat. Ann. § 13-3001.

Hidden cameras: It is unlawful for an

individual to photograph, videotape or

secretly view a person without consent while

the person is in a restroom, locker room,

bathroom or bedroom or is undressed or

involved in sexual activity, unless the surveil-

lance is for security purposes and notice is

posted. Ariz. Rev. Stat. Ann. § 13-3019.

Criminal penalties: Intercepting the

contents of any oral or electronic com-

munication without the consent of at least

one party is a felony. Ariz. Rev. Stat. Ann.

§ 13-3005. Violation of the state’s hidden

camera law is also a felony. Ariz. Rev. Stat.

Ann. § 13-3019(D). Punishment can range

from court ﬁnes to sentences of anywhere

from six months to more than two years in

prison. See Ariz. Rev. Stat. Ann. §§ 13-702,

13-801.

Civil suits: Any person whose communi-

cations are illegally intercepted in violation

of the state’s eavesdropping laws may bring a

civil suit within one year of the discovery of

the violation to recover for damages, attor-

ney fees, and any proﬁts made by the person

disclosing the information. Ariz. Rev. Stat.

Ann. § 12-731. In some cases, the court can

also assess punitive damages.

Disclosing recordings: Arizona prohibits

disclosure or publication of photographs,

videotapes or recordings made in violation

of the state’s hidden camera law. Ariz. Rev.

Stat. Ann. § 13-3019(B).

Arkansas

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 under Arizona

law. 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 con-

versation or at least one of the parties has

given consent. Ark. Code Ann. § 5-60-120.

Arkansas law also criminalizes the “intercep-

tion” 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 Communica-

tions Commission licensed amateur radio

operator or anyone operating a police scan-

ner from intercepting a communication for

pleasure. Ark. Code § 5-60-120(e).

Hidden cameras: The state’s video voy-

eurism 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 addi-

tion, 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 prohib-

its 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.

California

Summary of statute(s): In California,

all parties to any conﬁdential conversation

must give their consent to be recorded. This

applies whether the recording is done face-

to-face or intercepted through some elec-

tronic communication such as a cell phone

call or series of e-mail or text messages.

Both civil and criminal penalties are avail-

able to victims of illegal recordings. Further,

the state’s so-called “anti-paparazzi” legisla-

tion sets ﬁnes for, among other things, tres-

passing on private property with the intent

of capturing photos. The state’s vehicle code

similarly penalizes those who interfere with

drivers of vehicles in pursuit of images or

sound recordings.

In-person conversations: All parties to

any conﬁdential communication must give

permission to be recorded, according to

California’s eavesdropping law. Cal. Penal

Code § 632. The statute, however, spe-

ciﬁcally excludes from its application any

conversations made in public places, gov-

ernment proceedings, or in circumstances

where the participants of the conversation

could reasonably expect to be overheard

or recorded. Cal. Penal Code § 632(c).

Additionally, California’s so-called “anti-

paparazzi” law prohibits trespassing with the

intent of capturing photographic images or

sound recordings of people in “personal or

Reporter’s Recording Guide 7

familial activity.” Cal. Civil Code § 1708.8.

Committing an assault or falsely imprison-

ing subjects of a photo or sound recording

can also lead to violations of the statute.

Cal. Civil Code § 1708.8(c). Similarly, the

state’s vehicle code was recently amended

to include penalties for anyone who inter-

feres with the driver of a vehicle, follows too

closely or drives recklessly “with the intent

to capture any type of visual image, sound

recording, or other physical impressions of

another person for a commercial purpose.”

Cal. Veh. Code § 40008.

Electronic communications: The state’s

wiretapping law makes it a crime to inten-

tionally tap or make any unauthorized con-

nection to intercept telephone conversa-

tions or to read the contents of any messages

without the consent of all parties involved in

such communications. See Cal. Penal Code

§§ 631, -7.2.

Hidden cameras: The state’s disorderly

conduct statute prohibits the use of “a con-

cealed camcorder, motion picture camera,

or photographic camera of any type” to

secretly record a person while in a dressing

room, tanning booth or while in any area

where the person has a reasonable expecta-

tion of privacy. Cal. Penal Code § 647(j).

Two appellate courts have come to opposite

conclusions as to whether using a hidden

camera in a private place also violates the

state’s eavesdropping statute. See California

v. Gibbons, 215 Cal. App. 3d 1204 (Cal. Ct.

App. 1989)(a video recorder can be consid-

ered a recording device under the statute);

People v. Drennan, 84 Cal. App. 4th 1349

(Cal. Ct. App. 2000)(eavesdropping statute

protects only sound-based or symbol-based

communication).

Criminal penalties: A ﬁrst offense of

eavesdropping or wiretapping is punishable

by a ﬁne of up to $2,500 or imprisonment

for no more than one year. Cal. Penal Code

§§ 631, 632. Subsequent offenses carry a

maximum ﬁne of $10,000 and jail sentence

of up to one year. Disclosing the contents of

intercepted telephone conversations could

lead to ﬁnes of up to $5,000 and one year

in jail. Cal. Penal Code § 637. Violation of

the state’s hidden camera statute is a misde-

meanor punishable by up to a year in jail and

ﬁnes of up to $1,000. Cal. Penal Code § 19.

The state’s vehicle code provides for penal-

ties of up to a year in jail and ﬁnes of up to

$2,500. Cal. Veh. Code § 40008(a).

Civil suits: Anyone injured by a violation

of the laws against disclosure of telephonic

messages can recover civil damages of $5,000

or three times actual damages, whichever is

greater. Cal. Penal Code § 637.2. The court

may also impose injunctions preventing the

use of illegally obtained information. Cal.

Penal Code § 637.2(b). The state’s civil code

provides for ﬁnes of up to $50,000, three

times the amount of actual or special dam-

ages, and punitive damages for committing

an assault or trespassing to capture a visual

image or sound recording. Cal. Civil Code

§ 1708.8(d).

Disclosing recordings: The state prohib-

its the intentional disclosure of the contents

of private communications obtained by wire-

tapping. Cal. Penal Code § 631. Those who

publish, sell or otherwise transmit images or

sound recordings while knowingly trespass-

ing on private property are subject to ﬁnes.

Cal. Civil Code § 1708.8(f).

Colorado

Summary of statute(s): An individual

not involved or present at a conversation

must have the consent of at least one party

in order to legally record either an oral or

electronic communication. Intercepting

in-person conversations without consent is

a misdemeanor, although the state makes

an allowance for recording by news media

in some situations. Intercepting electronic

communications without at least one party’s

consent and disclosing information gained

through such means are both felony crimes

under the state’s wiretapping law.

In-person conversations: The consent of

at least one participant to a conversation is

required before any recording can take place

under the state’s eavesdropping law. Colo.

Rev. Stat. § 18-9-304. Colorado speciﬁcally

carves out an exemption for news media

from its eavesdropping and wiretapping

statutes, stating that its laws are not to be

“interpreted to prevent a news agency, or an

employee thereof, from using the accepted

tools and equipment of that news medium

in the course of reporting or investigating

a public and newsworthy event.” Colo. Rev.

Stat. § 18-9-305.

Electronic communications: The con-

sent of at least one party is required to

record or intercept a telephone conversation

or any electronic communication, according

to the state’s wiretapping statute. Colo. Rev.

Stat. § 18-9-303. Because the provision of

the statute dealing with wireless commu-

nications applies to “any transfer of signs,

signals, writing, images, sounds, data or

intelligence” of any nature, consent likewise

is required to disclose the contents of text

or e-mail messages sent between wireless

devices. Colo. Rev. Stat. § 18-9-301.

Hidden cameras: The state prohibits

under its privacy laws anyone from know-

ingly observing or taking any visual images

of another person’s body without consent in

situations where the subject of the ﬁlming or

photography has a reasonable expectation of

privacy. Colo. Rev. Stat. § 18-7-801.

Criminal penalties: Disclosing informa-

tion obtained illegally, as well as violations

of the state’s wiretapping statute are both

felonies punishable by a ﬁne of between

$1,000 and $100,000 and one year to 18

months in jail. Colo. Rev. Stat. § 18-1.3-401.

Recording communication from a cordless

telephone, however, is a misdemeanor pun-

ishable by a ﬁne of up to $5,000 and six to

18 months in jail. Colo. Rev. Stat. § 18-1.3-

501. Violations of the eavesdropping statute

carry similar penalties, while violators of the

state’s hidden camera law can face misde-

meanor charges carrying a sentence of up to

one year in jail and ﬁnes up to $1,000. Colo.

Rev. Stat. § 18-9-304.

Disclosing recordings: Using or disclos-

ing information obtained through illegal

wiretapping is a felony, if there is reason to

know the information was obtained illegally.

Colo. Rev. Stat. § 18-9-304.

Connecticut

Summary of statute(s): Connecticut

requires at least one party’s consent to record

an in-person conversation, and the consent

of all parties to a telephonic conversation.

The state’s voyeurism law prohibits taking

visual images of another person without that

person’s consent or knowledge when there is

an expectation of privacy.

In-person conversations: A person not

present at a conversation must obtain the

consent of at least one participant before

any recording can take place under the

state’s eavesdropping law. Conn. Gen. Stat.

§§ 53a-187, -89.

Electronic communications: It is illegal

to record a telephone conversation in Con-

necticut without the consent of all parties to

the call. Consent should be given prior to

the recording, and should either be in writ-

ing or recorded verbally, or a warning that

the conversation is being taped should be

recorded. Conn. Gen. Stat. § 52-570d.

Hidden cameras: The state’s voyeurism

law prohibits knowingly photographing,

ﬁlming or recording in any way another

person’s image without consent in situations

where the person is unaware of the ﬁlm-

ing, not in plain view and has a reasonable

expectation of privacy. Conn. Gen. Stat. §

53a-189a.

Criminal penalties: Violation of the

state’s eavesdropping and voyeurism laws, as

well as the dissemination of images in viola-

tion of the law, are all felonies punishable by

imprisonment for one to ﬁve years. Conn.

Gen. Stat. § 53a-35a.

Civil suits: Recording a telephone con-

versation without the consent of all parties

subjects an individual to liability for dam-

ages, as well as litigation costs and attorney

fees. Conn. Gen. Stat. § 52-570d(c).

Disclosing recordings: Connecticut

prohibits disseminating recorded images

of another person in violation of the state’s

voyeurism law. Conn. Gen. Stat. § 53a-189b.

Delaware

Summary of statute(s): Delaware’s wire-

tapping and surveillance laws require at least

one party’s consent to record both in-person

conversations and electronic communica-

8 The Reporters Committee for Freedom of the Press

tions. However, there is some conﬂict in

the laws. A state privacy law makes it illegal

to intercept private conversations without

the consent of all parties. Del. Code Ann.

tit. 11, § 1335(a)(4). The wiretapping law is

much more recent, though, and at least one

federal court has held that, even under the

privacy law, an individual can record his own

conversations. United States v. Vespe, 389 F.

Supp. 1359 (1975).

In-person conversations: An individual

can record oral conversations where either

the person is a party to the conversation or

at least one of the participants has consented

to the recording, so long as the recording or

interception is not done for the purpose of

committing a criminal or tortious act. Del.

Code Ann. tit. 11, § 2402(c)(4).

Electronic communications: Similarly,

absent any criminal or tortious intent, a

person is allowed to record or intercept

any electronic communication such as a

telephone call with the consent of at least

one party to the conversation. Del. Code

Ann. tit. 11, § 2402(c)(4). And because the

provision of the statute dealing with wire-

less communications applies to “any transfer

of signs, signals, writing, images, sounds,

data or intelligence” of any nature, consent

likewise is required to disclose the contents

of text or e-mail messages sent between

wireless devices. Del. Code Ann. tit. 11, §

2401(a).

Hidden cameras: The state’s privacy stat-

ute prohibits installing a camera or other

recording device “in any private place, with-

out consent of the person or persons entitled

to privacy there.” Del. Code Ann. tit. 11, §

1335(2). The law also bars the use of hid-

den cameras to record individuals dressing

or undressing in a private place. Del. Code

Ann. tit. 11, § 1335(a)(6), -(7).

Criminal penalties: Communications

intercepted illegally, or the disclosure of the

contents of illegally recorded communica-

tions is a felony punishable by up to ﬁve

years in prison and a ﬁne of up to $10,000.

Del. Code Ann. tit. 11, § 2402(b). Install-

ing a hidden recording device in any private

place is a misdemeanor punishable by up to

one year in jail and ﬁnes of up to $2,300.

Del. Code Ann. tit. 11, § 4206. The provi-

sion barring the taking of photo images of

individuals undressing in a private place is

a felony punishable by up to two years in

prison. Del. Code Ann. tit. 11, § 4205(a).

Civil suits: Any person whose communi-

cations are illegally intercepted, disclosed or

used in violation of the state’s eavesdropping

laws may bring a suit to recover for both

actual and punitive damages, as well as attor-

ney fees and litigation costs. Del. Code Ann.

tit. 11, § 2409(a). However, a good faith reli-

ance on a court order or legislative authori-

zation constitutes a complete defense.

Disclosing recordings: The state pro-

hibits the disclosure of any intercepted oral

or electronic communication if that person

knows or has reason to know the informa-

tion was obtained in violation of the state’s

wiretapping and eavesdropping statutes.

Del. Code Ann. tit. 11, § 2402(a)(2).

District of Columbia

Summary of statute(s): In the District

of Columbia, an individual may record or

disclose the contents of a wire or oral com-

munication if he or she is a party to the com-

munication, or has received prior consent

from one of the parties. The District’s voy-

eurism law prohibits secretly taking images

of people in private settings and distribut-

ing them without consent. The District also

contains several obscure city rules regulat-

ing the activities of commercial street pho-

tographers

In-person conversations: The consent

of at least one participant to a conversa-

tion is required before any recording can

take place under the District’s wiretapping

law. D.C. Code § 23-542. This means a

reporter’s tape-recorded conversation with

a source would be permissible, since that

reporter is a party to the conversation. The

District’s municipal regulations also contain

a set of obscure rules requiring street pho-

tographers selling their wares to tourists on

public spaces to become licensed. See D.C.

Mun. Regs. § 24-521, -22. The District

Possession and publication

Journalists should be aware that wire-

tap laws raise issues beyond just whether

they have met consent requirements.

The federal law and many state laws

explicitly make it illegal to possess —

and particularly to publish — the con-

tents of an illegal wiretap, even if it is

made by someone else. Some states that

allow recordings make the distribution

or publication of those otherwise legal

recordings a crime.

The 1986 Electronic Communica-

tions Privacy Act (amending the federal

wiretap law) makes it illegal to possess

or divulge the contents of any illegally

intercepted communication.

The U.S. Supreme Court ruled in

May 2001 that several media defendants

could not be held liable for damages

under the federal statute for publishing

and broadcasting information obtained

through an illegal interception of a pri-

vate conversation.

The case arose from a cell-phone con-

versation in Pennsylvania about contract

negotiations for local school teachers.

During the conversation, Anthony F. Kane,

Jr., president of the local teachers’ union, told

Gloria Bartnicki, a union negotiator, that

if teachers’ demands were not met, “we’re

gonna have to go to their, their homes . . . to

blow off their front porches, we’ll have to do

some work on some of those guys.” While

Bartnicki and Kane spoke, an unknown per-

son illegally intercepted the call, and a tape

recording was left in the mailbox of a local

association leader. The association leader

gave a copy of the tape to two radio talk

show hosts, who broadcast the tape as a part

of a news show. Local television stations also

aired the tape, and newspapers published

transcripts of the conversation.

Bartnicki and Kane sued some of the sta-

tions and newspapers that had disclosed the

contents of the tape. The case made its way

to the Supreme Court, which found that

First Amendment principles, which support

a commitment “that debate on public issues

should be uninhibited, robust, and wide-

open,” trumped the privacy concerns of the

union leaders.

In ruling that disclosure of a matter in

the public interest outweighed claims

of privacy, the majority of the Court

supported “a profound national com-

mitment to the principle that debate

on public issues should be uninhibited,

robust and wide-open.” The majority

explained that those who participate in

public affairs have a diminished expec-

tation of privacy, especially when they

propose to carry out wrongful conduct.

The case was a signiﬁcant win for the

media, but its implications for news-

gatherers are still not entirely clear. The

Court’s decision was premised on three

factors: the media did not engage in

or encourage the illegal recording, the

topic of the intercepted conversation

was of public concern and the conver-

sation involved proposed criminal acts.

The Court did not indicate whether

disclosure by the media under differ-

ent circumstances would be considered

legal. (Bartnicki v. Vopper)

The U.S. Court of Appeals in Boston

(1st Cir.) decided in 2007 in Jean v.

Massachusetts State Police that the First

Reporter’s Recording Guide 9

imposes several rules governing the conduct

of such photographers, including prohibit-

ing them from impeding trafﬁc and limiting

the time spent in any one place to ﬁve min-

utes. D.C. Mun. Regs. § 24-523.3. Concerns

over these rules and their potential for abuse

prompted promises from District ofﬁcials

to clarify that the rule would apply only to

street vendors who take photos of people to

sell to them. See Mike DeBonis, D.C. Will

Revisit Street Photography Regulations, Wash.

Post, Nov. 28, 2011, http://www.washing-

tonpost.com/blogs/mike-debonis/post/

dc-will-revisit-street-photography-regu-

lations/2011/11/28/gIQAbxqX5N_blog.

html.

Electronic communications: Similarly,

intercepting any wire or landline conversa-

tion is illegal unless the person recording is

a party to the conversation or at least one of

the parties has given consent. D.C. Code §

23-542.

Hidden cameras: The District’s voyeur-

ism law prohibits stationing oneself in a

“hidden observation post” or installing any

electronic device to secretly record another

person using a restroom, undressing or

engaging in sexual activity. D.C. Code §

23-3531.

Criminal penalties: Recording or dis-

tributing the contents of any recordings of

communications made without proper con-

sent can be punished criminally by a ﬁne of

no more than $10,000 or imprisonment for

no more than ﬁve years, or both. D.C. Code

§ 23-542. Violating the District’s voyeurism

law is a misdemeanor punishable by up to

a year in prison and ﬁnes of up to $1,000.

D.C. Code § 23-3531(f). Distribution of

images in violation of the District’s voyeur-

ism law is a felony punishable by up to ﬁve

years imprisonment and ﬁnes not more than

$5,000. D.C. Code § 23-3531(f)(2).

Civil suits: Anyone who illegally records

or discloses the contents of a communica-

tion is also subject to civil liability for the

greater of actual damages, damages in the

amount of $100 per day for each day of vio-

lation, or $1,000, along with punitive dam-

ages, attorney fees and litigation costs. D.C.

Code § 23-554.

Disclosing recordings: The District pro-

hibits disclosure of the contents of an ille-

gally recorded communication. However,

such disclosure cannot be punished crimi-

nally if the contents of the communication

have “become common knowledge or public

information.” D.C. Code § 23-542.

Florida

Summary of statute(s): All parties must

consent to the recording or the disclosure of

the contents of any wire, oral or electronic

communication in Florida. Disclosing com-

munications in violation of the state’s statute

is prohibited. Both criminal and civil pen-

alties exist for such infractions. The state’s

video voyeurism law bans the secret record-

ing underneath or through the clothing of

individuals without their consent, or in areas

where they have a reasonable expectation of

privacy.

In-person conversations: All parties

to any conﬁdential communication must

give permission to be recorded, according

to Florida’s eavesdropping law. Fla. Stat. §

934.03(2)(d). Under the statute, consent is

not required for the taping of an oral com-

munication spoken by a person who does

not have a reasonable expectation of privacy

in that communication. See deﬁnition of

“oral communication,” Fla. Stat. § 934.02.

For example, a speech made by the mayor at

the grand opening of a new city park would

not create a reasonable expectation of pri-

vacy in the contents of that communication.

Electronic communications: It is illegal

to tape or overhear a telephone conversation

in Florida without the consent of all parties

to the conversation. Fla. Stat. § 934.03(2)(d).

Because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

images, sounds, data or intelligence of any

nature,” consent likewise is required to dis-

close the contents of text or e-mail messages

sent between wireless devices. Fla. Stat. §

934.02(a)(12). Either the parties alleging

violation of the wiretap law must be Florida

Amendment prevented Massachusetts law

enforcement ofﬁcials from interfering with

an individual’s Internet posting of an audio

and video recording of an arrest and war-

rantless search of a private residence, even

though the poster had reason to know at the

time she accepted the recording that it was

illegally recorded.

The Court applied Bartnicki and deter-

mined that the state’s interest in protecting

the privacy of its citizens — encouraging

uninhibited exchange of ideas and informa-

tion among private parties and avoiding sus-

picion that one’s speech is being monitored

by a stranger — was less compelling in this

case than in Bartnicki, in which it was not

given much weight.

The Court of Appeals in Jean also con-

sidered two factors that it found weighed

in favor of First Amendment protection for

the publisher: the identity of the intercep-

tor was known, providing less justiﬁcation

to punish the publisher than in Bartnicki

where the interceptor was unknown, and

the publisher of the tape was a private citi-

zen.

In another case to follow Bartnicki, decided

in 2011, a federal court in Illinois held that

publishing a tape of a woman being arrested

without her consent is protected under

the First Amendment. Eran Best, who was

ﬁlmed being arrested during a trafﬁc stop,

did not consent to the tape appearing on the

reality show Female Forces.

Best sued the ofﬁcer and media companies

responsible for the taping and broadcast of

her arrest under the Illinois right of pub-

licity statute, arguing that her identity had

been used commercially without her con-

sent. The court, relying in part on Bartnicki,

held that because a tape of an arrest involved

a “truthful matter of public concern,” the

First Amendment-based right to broadcast

it outweighed Best’s privacy rights. (Best v.

Berard)

The Illinois court partly relied on an

important First Amendment decision from

2011, the Supreme Court case Snyder v.

Phelps, to support its argument that the tape

had captured a matter of public concern. In

Snyder, the father of a deceased marine sued

the Westboro Baptist Church for inten-

tional inﬂiction of emotional distress, after

the church picketed his son Matthew Sny-

der’s funeral.

The Supreme Court held that because

the Westboro Baptist Church’s protest

involved speech about a matter of public

concern, it was protected by the First

Amendment, and Snyder’s father would

need to prove actual malice in his lawsuit

for intentional inﬂiction of emotional

distress against the Westboro Baptists,

making it much hard for Snyder’s father

to succeed.

Taken together, Bartnicki and Snyder

may suggest broad protection for the

press against laws that prohibit publish-

ing the contents of an illegal wiretap.

Bartnicki held that when broadcasting

the tape of an illegally recorded con-

versation, the First Amendment right

to publish a matter of public concern

could outweigh the privacy rights of

those recorded. Snyder, in turn, dem-

onstrated that a very broad range of

content can be considered to be of pub-

lic concern—including even a highly

offensive protest directed at a private

funeral. But until more such controver-

sies work their way through the courts,

the boundaries of the right to publish

the contents of an illegal recording will

remain unclear.

10 The Reporters Committee for Freedom of the Press

residents or the words of any intercepted

private conversation must be spoken in

Florida for the all-party consent provision in

the statute to apply. See Cohen Brothers, LLC

v. ME Corp., S.A., 872 So.2d 321, 324 (Fla.

3d Dist. Ct. App. 2004).

Hidden cameras: The state’s video voy-

eurism laws prohibit the installation of any

imaging devices “to secretly view, broadcast,

or record a person, without that person’s

knowledge and consent” in circumstances

where the person is privately exposing the

body in an area where there is a reasonable

expectation of privacy. Fla. Stat. § 810.145.

The law also bans secretly videotaping

underneath or through clothing without the

subject’s consent. Id.

Criminal penalties: Recording, disclos-

ing, or endeavoring to disclose without the

consent of all parties is a felony punishable

by up to ﬁve years in prison and $5,000 in

ﬁnes, unless the interception is a ﬁrst offense

committed without any illegal purpose,

and not for commercial gain. Fla. Stat. §

934.03(4)(a). In those circumstances, then,

such an infraction is a misdemeanor punish-

able by up to a year in jail and ﬁnes of up

to $1,000. Fla. Stat. § 934.03(4)(b). Adults

taking or distributing images in violation of

the state’s video voyeurism law could face

felony charges of up to ﬁve years in prison

and $5,000 in ﬁnes. Fla. Stat. § 810.145.

Civil suits: Anyone whose communica-

tions have been illegally intercepted or dis-

closed may recover actual damages of up to

$1,000 for each day of the violation, along

with punitive damages, attorney fees and

litigation costs. Fla. Stat. § 934.10.

Disclosing recordings: The state pro-

hibits the disclosure of any intercepted oral

or electronic communication if that person

knows or has reason to know the informa-

tion was obtained in violation of the state’s

wiretapping statutes. Fla. Stat. § 934.03(1)

(c). Similar bars exist for individuals who dis-

tribute images in violation of the state’s video

voyeurism law. Fla. Stat. § 810.145(3), (4).

Georgia

Summary of statute(s): An individual

may record or disclose the contents of a

wire, oral or electronic communication if he

or she is a party to the communication or

has received prior consent from one of the

parties. The state prohibits the use of cam-

eras to observe private activities without the

consent of all parties involved, and also pro-

hibits disclosure of the contents of illegally

obtained recordings. However, Georgia

carves out an exception, allowing the par-

ents of minor children to intercept private

telephonic and electronic communications

without consent.

In-person conversations: An individual

can record oral conversations where either

the person is a party to the conversation or

at least one of the participants has consented

to the recording. Ga. Code Ann. § 16-11-

66(a). The Georgia Court of Appeals, how-

ever, interpreted the statute to require the

consent of all parties with respect to video

recording in private circumstances. See

Gavin v. State, 664 S.E.2d 797 (Ga. Ct. App.

2008). State law also prohibits trespassing

on private property to eavesdrop or secretly

observe activities of another. Ga. Code Ann.

§ 16-11-62(3).

Electronic communications: Similarly, a

person who is either a participant in a tele-

phone or other electronic communication,

or with consent from one of the participants,

is allowed to record or intercept any such

communication. Ga. Code Ann. § 16-11-

66(a). The state’s wiretapping and eaves-

dropping statutes speciﬁcally allow for the

secret recording or listening to telephone

conversations of minor children without

consent for the purpose of ensuring their

welfare. Ga. Code Ann. § 16-11-66(d).

Hidden cameras: The state prohibits the

use of a camera “without the consent of all

persons observed, to observe, photograph,

or record the activities of another which

occur in any private place and out of public

view.” Ga. Code Ann. § 16-11-62(2).

Criminal penalties: Violation of any pro-

visions of the wiretapping statute carries a

penalty of imprisonment between one and

ﬁve years or a ﬁne of up to $10,000. Ga.

Code Ann. § 16-11-69.

Disclosing recordings: It is illegal for any

person to divulge or distribute to any person

the content or substance of any private mes-

sage, photograph or communication with-

out the consent of all parties involved. Ga.

Code Ann. § 16-11-62(6). However, Geor-

gia speciﬁcally allows the parents of minor

children to disclose the contents of secretly

intercepted telephone conversations or any

electronic communication to a district attor-

ney or law enforcement ofﬁcer if the parent

has a good faith belief that the communica-

tion is evidence of criminal conduct involv-

ing the child as a victim. Ga. Code Ann. §

16-11-66(d).

Hawaii

Summary of statute(s): An individual

may record or disclose the contents of a

wire, oral or electronic communication if

he or she is a party to the communication,

or has received prior consent from one of

the parties. In addition, the state’s hidden

camera law prohibits recording images of a

person in private areas while in any stage of

undress. The state provides both civil and

criminal penalties for violators.

In-person conversations: An individual

can record oral conversations where either

the person is a party to the conversation or

at least one of the participants has consented

to the recording. Haw. Rev. Stat. § 803-42.

Electronic communications: Similarly, a

person who is either a participant in a tele-

phone or other electronic communication,

or with consent from one of the participants,

is allowed to record or intercept any such

communication. Haw. Rev. Stat. § 803-42.

Because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

images, sounds, data or intelligence of any

nature,” consent likewise is required to dis-

close the contents of text or e-mail messages

sent between wireless devices. Haw. Rev.

Stat. § 803-41. The one-party consent rule

does not apply, however, to the installation

of a recording device in a “private place”

that will amplify or broadcast conversations

outside that private place. All parties who

have a reasonable expectation of privacy in

that place must consent to the installation

of a recording device. Haw. Rev. Stat. § 711-

1111.

Hidden cameras: It is a felony to install

or use a surveillance device in a private area

to view a person in a “stage of undress or

sexual activity” without the person’s con-

sent. Haw. Rev. Stat. § 711-1110.9. Secretly

taking images of another underneath their

clothing while in public is a misdemeanor.

Haw. Rev. Stat. § 711-1111. A person can

also be charged with a misdemeanor sexual

assault for trespassing on private property to

secretly observe somebody for the purpose

of sexual gratiﬁcation. Haw. Rev. Stat. §

707-733(c).

Criminal penalties: Unlawful intercep-

tions or disclosures of private communica-

tions are felonies punishable by up to ﬁve

years imprisonment and a ﬁne of up to

$10,000. Haw. Rev. Stat. §§ 706-640, -60.

Similar penalties are in place for the instal-

lation of hidden cameras. Further, the court

may order the destruction of such record-

ings. Haw. Rev. Stat. § 711-1110.9. Viola-

tors of the state’s sexual assault law and those

secretly taking images of individuals under-

neath their clothing can be punished by up

to a year in jail and a ﬁne of up to $2,000.

Rev. Stat. §§ 706-640, -63.

Civil suits: Anyone whose communica-

tions have been illegally intercepted, dis-

closed or used may recover actual and puni-

tive damages and any proﬁts made by the

violator, along with attorney fees and litiga-

tion costs. Haw. Rev. Stat. § 803-48.

Disclosing recordings: It is illegal to

use or disclose the contents of any private

oral or electronic conversation, message or

photographic image without the consent of

at least one party to the conversation if the

accused knew or had reason to know that the

message was unlawfully intercepted. Haw.

Rev. Stat. § 803-42(a)(3), -(a)(4).

Idaho

Summary of statute(s): An individual

may record or disclose the contents of a

wire, oral or electronic communication if

he or she is a party to the communication,

Reporter’s Recording Guide 11

or has received prior consent from one of

the parties. The state provides both civil and

criminal penalties for violators.

In-person conversations: At least one

party must give consent in order to record

an in-person conversation. Idaho Code Ann.

§ 18-6702.

Electronic communications: Similarly,

using a device to record conversations over

electronic communications such as tele-

phones is allowed with the consent of at

least one party to the conversation. Idaho

Code Ann. § 18-6702. Because the provision

of the statute dealing with wireless commu-

nications applies to “any transfer of signs,

signals, writing, images, sounds, data or

intelligence of any nature,” consent likewise

is required to disclose the contents of text

or e-mail messages sent between wireless

devices. Idaho Code Ann. § 18-6701(10).

Hidden cameras: The state’s video voy-

eurism laws prohibit the installation of any

devices capable of recording, storing or

transmitting visual images to secretly view,

broadcast or record a person, without that

person’s knowledge and consent in an area

where there is a reasonable expectation of

privacy. Idaho Code Ann. § 18-6609(2). The

use of such cameras and publication or dis-

semination of images captured are felonies.

Criminal penalties: Punishment for the

felony of an illegal interception or disclo-

sure can include up to ﬁve years in prison

and as much as $5,000 in ﬁnes. Idaho Code

Ann. § 18-6702. Violation of the state’s

video voyeurism laws carry penalties of up

to ﬁve years imprisonment and $50,000 in

ﬁnes. Idaho Code Ann. § 18-112.

Civil suits: Anyone whose communica-

tions have been illegally intercepted, dis-

closed or used may recover actual and puni-

tive damages, along with attorney fees and

litigation costs. Idaho Code Ann. § 18-6709.

Disclosing recordings: A person who

intercepts a private conversation cannot

knowingly disclose or use the information

without consent of at least one party. Idaho

Code Ann. §§ 18-6702(c), (d). u

Illinois

Summary of statute(s): In Illinois, an

eavesdropping device cannot be used to

record or overhear a conversation or inter-

cept, retain or transcribe a telephone or

electronic communication without the con-

sent of all parties involved. While the all-

party consent requirement does not apply

to police ofﬁcers acting within the scope

of their duties, the law provides for harsher

penalties for anyone caught recording police

activities while in public. The U.S. Court of

Appeals in Chicago (7th Cir.) put the consti-

tutionality of the state’s eavesdropping law

into question in May 2012.

In-person conversations: The state

requires all parties to a conversation to give

consent before one can record “all or any

part of any” oral conversation. 720 Ill. Com-

piled Stat. 5/14-2(a)(1). The eavesdropping

provisions apply regardless of whether any

of the participants intended the conversa-

tion to be private. 720 Ill. Compiled Stat.

5/14-1(d). The eavesdropping statute, how-

ever, exempts the all-party consent require-

ment for police ofﬁcers acting in the scope

of their law enforcement duties. 720 Ill.

Compiled Stat. 5/14-3(g).

Electronic communications: Similarly,

the statute makes it a felony to intercept

any telephone or electronic communication

unless all parties give their consent. 720 Ill.

Compiled Stat. 5/14-1, -2. Because the pro-

vision of the statute dealing with electronic

communications applies to “any transfer of

signs, signals, writing, images, sounds, data

or intelligence of any nature,” consent like-

wise is required to disclose the contents of

text or e-mail messages sent between wire-

less devices. 720 Ill. Compiled Stat. 5/14-

1(e).

Hidden cameras: A person cannot “vid-

eotape, photograph, or ﬁlm another person

without that person’s consent in a restroom,

tanning bed or tanning salon, locker room,

changing room or hotel bedroom,” or in

their residence without their consent. 720

Ill. Compiled Stat. 5/26-4. The law also

prohibits the concealed photography and

video recordings of an individual’s body

either under or through that person’s cloth-

ing without that person’s knowledge or con-

sent. Id. 5/26-4(a-10).

Criminal penalties: Violations of the

eavesdropping law are punishable as felo-

nies, with ﬁrst offenses categorized as lesser,

Class 4 felonies than subsequent offenses.

720 Ill. Compiled Stat. 5/14-4. Violations

are elevated to a Class 1 felony with a pos-

sible prison term of up to 15 years if one of

the recorded individuals is a law enforce-

ment ofﬁcer, assistant state’s attorney or

judge “while in the performance of his or

her ofﬁcial duties.” 720 Ill. Compiled Stat.

5/14-4(b). The U.S. Court of Appeals in

Chicago (7th Cir.), however, put the con-

stitutionality of this provision into question

by concluding that portions of the Illinois

Eavesdropping Act are “likely unconsti-

tutional” and could not be applied to the

American Civil Liberties Union of Illinois

when it records conversations of police ofﬁ-

cers openly engaged in their public duties.

ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th

Cir. 2012).

Civil suits: Participants to any communi-

cation intercepted or recorded in violation

of the state’s eavesdropping statute have

civil remedies that include injunctive relief

prohibiting any further eavesdropping, as

well as actual and punitive damages against

the eavesdropper. 720 Ill. Compiled Stat.

5/14-6.

Disclosing recordings: The eavesdrop-

ping law makes it illegal to use or informa-

tion one knows or should have known was

obtained with an eavesdropping device. 720

Ill. Compiled Stat. 5/14-2(a)(3). However,

not disclosing the contents of the illegally

obtained communication is an afﬁrmative

defense to the charge. 720 Ill. Compiled

Stat. 5/14-2(b)(4). Further, disclosing video

images taken in violation of the state’s voy-

eurism law is a felony. 720 Ill. Compiled

Stat. 5/26-4(a-25).

Indiana

Summary of statute(s): Indiana bars the

recording or interception of any telephonic

or electronic communication by means of

any mechanical or electronic device without

the consent of at least one party to the con-

versation. The state also prohibits disclo-

sure of images intercepted in violation of its

video voyeurism law. Violators can face both

civil and criminal penalties.

Electronic communications: The statute

makes it a felony to intercept any telephone

or electronic communication unless at least

one party gives their consent. Ind. Code

Ann. § 35-31.5-2-176. Because the provi-

sion of the statute dealing with electronic

communications applies to “any transfer of

signs, signals, writing, images, sounds, data

or intelligence of any nature,” consent like-

wise is required to disclose the contents of

text or e-mail messages sent between wire-

less devices. Ind. Code Ann. § 35-31.5-2-

110.

Hidden cameras: The state’s video voy-

eurism law makes it a misdemeanor to pho-

tograph the private bodily areas of a person

without consent. Ind. Code Ann. § 35-45-

4-5(d). The penalty escalates to a felony if

the photo is taken in a private area such as

a restroom, shower or dressing room. Ind.

Code Ann. § 35-45-4-5(b)(2).

Criminal penalties: Knowingly or inten-

tionally intercepting a communication in

violation of Indiana’s wiretap laws is a felony

punishable by up to eight years in prison and

a $10,000 ﬁne. Ind. Code Ann. § 35-33.5-5-

5(b). Misdemeanor violations of the state’s

video voyeurism law are punishable by one

year in jail and up to $5,000 in ﬁnes. Ind.

Code Ann. § 35-50-3-2. A felony charge of

the voyeurism law carries penalties of up to

six years imprisonment and a $10,000 ﬁne.

Ind. Code Ann. § 35-50-2-7.

Civil suits: Civil liability for intercepting,

disclosing or using the contents of a conﬁ-

dential communication in violation of the

state’s wiretapping law may require the pay-

ment of actual and punitive damages, court

costs and attorney fees. Ind. Code Ann. §

35-33.5-5-4.

Disclosing recordings: The state’s video

voyeurism law makes it a Class D felony

offense to publish, transmit or make images

captured without the subject’s consent avail-

able on the Internet. Ind. Code Ann. §

35-45-4-5(e).

12 The Reporters Committee for Freedom of the Press

Iowa

Summary of statute(s): Iowa has two sets

of similar statutes dealing with the intercep-

tion of oral, telephonic or electronic com-

munications. Both laws bar the recording

or interception of such communications

by means of any mechanical or electronic

device without the consent of at least one

party. The state prohibits disclosure of the

illegally intercepted contents of such com-

munications. Violators can face both civil

and criminal penalties.

In-person conversations: Iowa’s elec-

tronic and mechanical eavesdropping statute

makes it a serious misdemeanor for a person

to overhear or tape a private conversation to

which that person is not openly present and

participating or listening, unless consent to

record is given by at least one of the parties.

Iowa Code Ann. § 727.8. Under the state’s

“Interception of Communications” statute,

it is a Class D felony to willfully intercept

the contents of a conﬁdential oral conversa-

tion. The statute, however, expressly permits

the recording through the use of any device

by either a party to the conversation, or with

the consent of at least one party, so long as

the recording is done absent any criminal or

tortious intent. Iowa Code Ann. § 808B.2.

Electronic communications: Similarly,

under the state’s electronic and mechanical

eavesdropping statute, a person may record

a telephone or communication of any kind

if the person listening or recording is a

sender or recipient. Failure to get consent

is a serious misdemeanor. Iowa Code Ann.

§ 727.8. Under the state’s “Interception of

Communications” statute, it is a Class D

felony to willfully intercept any wire or elec-

tronic communication absent the consent

of at least one party to the communication.

Because the provision of the statute deal-

ing with electronic communications applies

to “any transfer of signals, signs, writing,

images, sounds, data or intelligence of any

nature,” consent of at least one party like-

wise is required to disclose the contents of

text or e-mail messages sent between wire-

less devices. Iowa Code Ann. § 808B.1.

Hidden cameras: The state’s privacy law

makes it a serious misdemeanor to secretly

view, photograph or ﬁlm a person who is

either fully or partially nude without consent,

so long as that subject has a reasonable expec-

tation of privacy. Iowa Code Ann. § 709.21.

Criminal penalties: Felony charges under

the state’s Interception of Communications

statute carry penalties of up to ﬁve years

imprisonment and a $7,500 ﬁne. Iowa Code

Ann. § 902.9. Serious misdemeanor charges

under both the eavesdropping and hidden

camera privacy laws carry penalties of up to

one year in jail and a $1,875 ﬁne. Iowa Code

Ann. § 903.1.

Civil suits: Anyone whose conﬁdential

communications are intercepted, disclosed

or used in violation of the state’s wiretapping

and eavesdropping laws may seek injunctive

relief from the court and recover in a civil

suit the payment of actual and punitive dam-

ages, attorney fees and other litigation costs.

Iowa Code Ann. § 808B.8.

Disclosing recordings: Iowa prohibits

the disclosure of the contents of any oral,

telephonic or other electronic communica-

tion if the person knows or has reason to

believe the communications were inter-

cepted in violation of the state’s eavesdrop-

ping laws. Iowa Code Ann. § 808B.2.

Kansas

Summary of statute(s): Kansas bars the

recording, interception, use or disclosure

of any oral or telephonic communication

by means of any mechanical or electronic

device without the consent of at least one

party to the conversation. The state also

prohibits the recording and disclosure of

images intercepted in violation of its hidden

camera law. Violators can face both civil and

criminal penalties.

In-person conversations: The state’s

breach of privacy law makes it a misde-

Interstate phone calls

In light of the differing state laws gov-

erning electronic recording of conversa-

tions between private parties, journalists

are advised to err on the side of caution

when recording or disclosing an inter-

state telephone call. The safest strategy

is to assume that the stricter state law will

apply.

For example, a reporter located in the

District of Columbia who records a tele-

phone conversation without the consent

of a party located in Maryland would

not violate District of Columbia law, but

could be liable under Maryland law. A

court located in the District of Columbia

may apply Maryland law, depending on

its “conﬂict of laws” rules. Therefore, an

aggrieved party may choose to ﬁle suit in

either jurisdiction, depending on which

law is more favorable to the party’s claim.

In one case, a New York trial court was

asked to apply the Pennsylvania wiretap

law — which requires consent of all par-

ties — to a call placed by a prostitute

in Pennsylvania to a man in New York.

Unlike the Pennsylvania wiretap statute,

the New York and federal statutes require

the consent of only one party. The call

was recorded with the woman’s consent by

reporters for The Globe, a national tabloid

newspaper. The court ruled that the law of

the state where the injury occurred, New

York, should apply. (Krauss v. Globe Interna-

tional)

The Supreme Court of California in Kear-

ney v. Salomon Smith Barney applied Cali-

fornia wiretap law to a company located in

Georgia that routinely recorded business

phone calls with its clients in California.

California law requires all party consent to

record any telephone calls, while Georgia

law requires only one party consent. The

state’s high court, applying choice of law

principles, reasoned that the failure to apply

California law would “impair California’s

interest in protecting the degree of privacy

afforded to California residents by Califor-

nia law more severely than the application of

California law would impair any interests of

the State of Georgia.”

In another case involving Pennsylvania

law, four employees of The Times Leader, a

newspaper in Wilkes-Barre, were arrested

after they printed a transcript of a tele-

phone conversation between a columnist in

Pennsylvania and a murder suspect living

in Virginia that was recorded without

the suspect’s permission. The Virginia

and federal statutes allow one party to

record a conversation, while Pennsyl-

vania, as discussed above, requires the

consent of all parties. The man asked

prosecutors to charge the journal-

ists under the Pennsylvania law. The

court eventually dismissed the charges

against the newspaper staff — but on

the unrelated ground that the suspect

had no expectation of privacy during his

telephone interview with the columnist.

(Pennsylvania v. Duncan)

Federal law may apply when the con-

versation is between parties who are in

different states, although it is unsettled

whether a court will hold in a given case

that federal law “pre-empts” state law.

In Duncan, the newspaper argued that

the federal law should pre-empt the

state statutes, because the telephone call

crossed state lines, placing it under fed-

eral jurisdiction. However, in that case,

the court did not address the pre-emp-

tion issue. Moreover, as noted above,

either state may choose to enforce its

own laws.

Reporter’s Recording Guide 13

meanor to secretly use any device to listen

to, record or amplify a private conversation

in a private place without the consent of at

least one party. Kan. Stat. Ann. § 21-6101(4).

Electronic communications: Similarly,

the state law makes it a misdemeanor “to

intercept by telephone, telegraph, letter

or other means of private communication”

the contents of any message sent without

the consent of either the sender or receiver.

Kan. Stat. Ann. § 21-6101(1).

Hidden cameras: It is a felony to use a

hidden camera to ﬁlm or photograph a per-

son who is nude or in a state of undress with-

out the person’s consent in a place where the

person has a reasonable expectation such

ﬁlming would not take place. Kan. Stat.

Ann. § 21-6101(6). The law also prohib-

its the concealed photography and video

recordings of an individual’s body either

under or through that person’s clothing

without that person’s knowledge or con-

sent. Id.

Criminal penalties: Recording, intercept-

ing or divulging the contents of any private

communications without the consent of at

least one party is a misdemeanor punishable

by up to a year in jail and a court ﬁne. Kan.

Stat. Ann. § 21-6602. Secretly taking or dis-

seminating video images in violation of the

state’s hidden camera laws are felonies. Kan.

Stat. Ann. § 21-6101.

Civil suits: Anyone whose conﬁdential

communications are intercepted, disclosed

or used in violation of the state’s wiretapping

and eavesdropping laws may recover in a

civil suit the payment of actual and punitive

damages, attorney fees and other litigation

costs. Kan. Stat. Ann. §22-2518.

Disclosing recordings: Divulging the

existence or contents of any type of private

communication is a misdemeanor if the

person knows the message was intercepted

illegally. Kan. Stat. Ann. § 21-6101(2). Dis-

seminating any videotape, photo or ﬁlm

image taken with a concealed camcorder

used to take nude images of another person

without consent is a felony. Kan. Stat. Ann.

§§ 21-6101(a)(7), -(b)(3).

Kentucky

Summary of statute(s): Kentucky bars

the recording, interception, use or disclo-

sure of any oral or telephonic communica-

tion by means of any mechanical or elec-

tronic device without the consent of at least

one party to the conversation. The state

also prohibits the recording and disclosure

of images intercepted in violation of its

voyeurism laws. Violators can face criminal

penalties.

In-person conversations: It is a felony to

overhear or record, through use of an elec-

tronic or mechanical device, an oral com-

munication without the consent of at least

one party to that communication. Ky. Rev.

Stat. Ann. § 526.020. A conversation which

is loud enough to be heard through the wall

or through the heating system without the

use of any device is not protected by the

statute, since a person who desires privacy

can take the steps necessary to ensure that

his conversation cannot be overheard by the

ordinary ear. Id.

Electronic communications: Similarly,

the statute makes it a felony to intercept any

telephone communication without the con-

sent of at least one party. Ky. Rev. Stat. Ann.

§ 526.010.

Hidden cameras: It is a misdemeanor to

use a hidden camera or any image-recording

device to view, photograph or ﬁlm a person

who is nude or performing sexual conduct

without the person’s consent in a place

where the person has a reasonable expecta-

tion such ﬁlming would not take place. Ky.

Rev. Stat. Ann. § 531.090.

Criminal penalties: Recording or inter-

cepting private communications in violation

of the state’s eavesdropping law, or distribut-

ing images in violation of the state’s video

voyeurism law are felony offenses pun-

ishable by up to ﬁve years in prison and a

$5,000 ﬁne. Ky. Rev. Stat. Ann. §§ 532.060,

534.030. Violations of the state’s hidden

camera laws or distributing information

obtained illegally through eavesdropping

are misdemeanors punishable by up to a

year in jail and a $500 ﬁne. Ky. Rev. Stat.

Ann. §§ 532.090, 534.040.

Disclosing recordings: Using or divulg-

ing information obtained in violation of the

state’s eavesdropping law is a misdemeanor.

Ky. Rev. Stat. Ann. § 526.060. Further, it is a

felony to take visual images of a person while

in the nude and either divulging or distrib-

uting the images via e-mail, the Internet or

a commercial online service. Ky. Rev. Stat.

Ann. § 531.100. Anyone who inadvertently

hears a conversation transmitted through a

wireless telephone and proceeds to pass the

contents of the communication onto others

without the consent of a party to the origi-

nal conversation violates the eavesdropping

statute. Ky. Att’y Gen. Op. 84-310 (1984).

Louisiana

Summary of statute(s): Louisiana’s Elec-

tronic Surveillance Act bars the recording,

interception, use or disclosure of any oral

or telephonic communication by means of

any mechanical or electronic device with-

out the consent of at least one party to the

conversation. The state also prohibits the

recording and disclosure of images inter-

cepted in violation of its video voyeurism

laws. Violators can face both civil and crim-

inal penalties.

In-person conversations: A person can-

not overhear or tape a private conversation

to which that person is not openly present

and participating or listening, unless con-

sent to record is given by at least one of the

parties to the conversation. La. Rev. Stat.

Ann. § 15:1303.

Electronic communications: Similarly,

the statute prohibits the willful interception

of any telephone or wire communication

absent the consent of at least one party to

the communication. La. Rev. Stat. Ann. §

15:1303.

Hidden cameras: The state’s video voy-

eurism law bars the use of any type of hidden

camera to observe or record a person where

that person has not consented if the record-

ing “is for a lewd or lascivious purpose.” La.

Rev. Stat. Ann. § 14:283.

Criminal penalties: A violation of the

state’s eavesdropping law, whether by

recording or disclosing the contents of a

communication without proper consent,

carries a prison sentence of up to 10 years of

hard labor and a $10,000 ﬁne. La. Rev. Stat.

Ann. § 15:1303. Violation of the state’s video

voyeurism law can be punishable by a prison

sentence anywhere from two to 10 years of

hard labor and a court ﬁne. La. Rev. Stat.

Ann. § 14:283(B).

Civil suits: Anyone whose conﬁdential

communications are intercepted, disclosed

or used in violation of the state’s eavesdrop-

ping law may recover in a civil suit the pay-

ment of actual and punitive damages, attor-

ney fees and other litigation costs. La. Rev.

Stat. Ann. § 15:1312.

Disclosing recordings: Louisiana bars

the transfer by e-mail, the Internet or a

commercial online service any photo or ﬁlm

images obtained in violation of the state’s

video voyeurism law. La. Rev. Stat. Ann. §

14:283(A). The state also bars the disclosure

or use of the contents of any oral or elec-

tronic communication either knowing or

having reason to know it was intercepted in

violation of the state’s eavesdropping laws.

La. Rev. Stat. Ann. § 15:1303.

Maine

Summary of statute(s): Maine bars the

recording, interception, use or disclosure

of any oral or telephonic communication

by means of any mechanical or electronic

device without the consent of at least one

party to the conversation. The state also

prohibits the recording and disclosure of

images intercepted in violation of its privacy

laws. Violators can face both civil and crimi-

nal penalties.

In-person conversations: A person can-

not tape a private conversation with any

device unless he is in the range of normal

unaided hearing, a participant in the conver-

sation or consent to record was given by at

least one of the parties to the conversation.

Me. Rev. Stat. Ann. tit. 15, § 710.

Electronic communications: Similarly,

the statute prohibits the willful or inten-

tional interception of any telephone or wire

communication absent the consent of at

least one party to the communication. Me.

Rev. Stat. Ann. tit. 15, § 710.

14 The Reporters Committee for Freedom of the Press

Hidden cameras: The state’s privacy law

makes it a Class D crime to use a camera

in areas where one may reasonably expect

to be safe from video surveillance, “includ-

ing, but not limited to, changing or dressing

rooms, bathrooms and similar places.” Me.

Rev. Stat. Ann. tit. 17-A, §511. The law also

prohibits the concealed visual surveillance

in public areas of an individual’s body either

under or through that person’s clothing

without that person’s knowledge or consent.

Me. Rev. Stat. Ann. tit. 17-A, §511(D).

Criminal penalties: Illegally recording

or disclosing the contents of an oral or tele-

phone conversation is a Class C crime pun-

ishable by up to ﬁve years in prison and a

$5,000 ﬁne. Me. Rev. Stat. Ann. tit. 17-A, §§

1251, 1301. Violation of the state’s privacy

law is a Class D crime punishable by a jail

sentence of less than one year and a $2,000

ﬁne. Id.

Civil suits: Anyone whose communica-

tions have been intercepted can sue for civil

damages and recover the greater of $100 a

day for each day of violation or actual dam-

ages, and also attorney fees and litigation

costs. Me. Rev. Stat. Ann. tit. 15, § 711.

Disclosing recordings: Disclosure of the

contents of intercepted communications,

knowing the information was obtained by

interception, is a Class C violation of the

criminal code. Me. Rev. Stat. Ann. tit. 15,

§ 710.

Maryland

Summary of statute(s): Under Maryland’s

Wiretapping and Electronic Surveillance

Act, it is unlawful to tape record a conversa-

tion without the permission of all the par-

ties. Additionally, recording with criminal

or tortuous purpose is illegal, regardless of

consent. The state also prohibits the record-

ing and disclosure of images intercepted in

violation of its privacy laws. Violators can

face both civil and criminal penalties.

In-person conversations: The state

requires all parties to a conversation to give

consent before one can record any private

oral conversation. Md. Code Ann., Cts. &

Jud. Proc. § 10-402. State courts have inter-

preted the laws to protect communications

only when the parties have a reasonable

expectation of privacy, and thus, where a

person in a private apartment was speak-

ing so loudly that residents of an adjoining

apartment could hear without any sound

enhancing device, recording without the

speaker’s consent did not violate the wire-

tapping law. Malpas v. Maryland, 695 A.2d

588 (Md. Ct. Spec. App. 1997).

Electronic communications: Similarly,

the statute makes it a felony to intercept

any telephone or electronic communica-

tion unless all parties give their consent.

Md. Code Ann., Cts. & Jud. Proc. § 10-402.

Because the provision of the statute deal-

ing with electronic communications applies

to “any transfer of signs, signals, writing,

images, sounds, data or intelligence of any

nature,” consent likewise is required to dis-

close the contents of text or e-mail messages

sent between wireless devices. Md. Code

Ann., Cts. & Jud. Proc. § 10-401.

Hidden cameras: It is a misdemeanor to

use a hidden camera in a bathroom, dressing

room or any area where it would be reason-

able to believe the person would not be vis-

ible to the public. Md. Crim. Law §§ 3-901,

-02. The state’s surveillance and privacy law

also prohibits using a camera on private

property to secretly record or observe those

inside. Md. Crim. Law §§ 3-903. A person

who is viewed in violation of these statutes

can also ﬁle a civil suit to recover damages.

Criminal penalties: Violations of the

wiretapping law are felonies punishable by

imprisonment for not more than ﬁve years

and a ﬁne of not more than $10,000. Md.

Code Ann., Cts. & Jud. Proc. § 10-402(b).

Violators of the hidden camera law can face

misdemeanor charges with penalties that

include up to one year in jail and a $2,500

ﬁne. Md. Crim. Law §§ 3-901, -902, -903.

Civil suits: The court may award actual

and punitive damages, as well as reason-

able attorney fees and litigation costs, to

anyone whose private communications were

recorded or disclosed in violation of the

state’s eavesdropping law. MD. Code Ann.,

Cts. & Jud. Proc. § 10-410.

Disclosing recordings: The state bars the

disclosure or use of the contents of any oral,

telephone or electronic communication

either knowing or having reason to know

it was intercepted in violation of the state’s

eavesdropping laws. Md. Code Ann., Cts. &

Jud. Proc. § 10-402.

Massachusetts

Summary of statute(s): Massachusetts

prohibits the recording, interception, use

or disclosure of any conversation, whether

in person or via wire or telephone, without

the permission of all the parties. The state

also prohibits the recording and disclosure

of images intercepted in violation of its hid-

den camera laws. Violators can face both

civil and criminal penalties.

In-person conversations: The state

requires all parties to a conversation to give

consent before one can record any private

oral conversation. Mass. Ann. Laws ch. 272,

§ 99(C). An appellate court has also held

that the recorded conversation of poor audio

quality with at least some audible words can

potentially violate the wiretapping statute.

Commonwealth v. Wright, 814 N.E.2d 741

(Mass. App. Ct. 2004). The all-party con-

sent rule seemingly applies whether the

conversation is held in private or a public

location. See Commonwealth v. Manzelli, 864

N.E.2d 566 (Mass. App. Ct. 2007)(protester

arrested for secretly audio taping conversa-

tion with police ofﬁcer at a publicly held

political rally).

Electronic communications: Similarly,

the statute makes it a felony to intercept or

record any telephone or wire communica-

tion using any device unless all parties give

their consent. Mass. Gen. Laws ch. 272, §

99(C).

Hidden cameras: A person cannot pho-

tograph, videotape or use any electronic

device to secretly observe another person in

the nude without consent in areas where the

subject would have a reasonable expectation

of privacy. Mass. Gen. Laws ch. 272, § 105.

Criminal penalties: Illegally eavesdrop-

ping on an oral or telephone conversation is

punishable by a ﬁne of up to $10,000 and a

jail sentence of up to ﬁve years. Mass. Gen.

Laws ch. 272, § 99(C). Disclosing or using

the contents of such communications is a

misdemeanor punishable with a ﬁne of up

to $5,000 and imprisonment for up to two

years. Id. Secretly videotaping or taking

photos of another person in the nude with-

out consent is punishable by imprisonment

of up to two-and-a-half years and a $5,000

ﬁne. Mass. Gen. Laws ch. 272, § 105(b).

Distribution of such photos is punishable by

up to ﬁve years in prison and a $10,000 ﬁne.

Mass. Gen. Laws ch. 272, § 105(c).

Civil suits: The court may award actual

and punitive damages, as well as reason-

able attorney fees and litigation costs, to

anyone whose private communications were

recorded or disclosed in violation of the

state’s eavesdropping law. Mass. Gen. Laws

ch. 272, § 99(Q).

Disclosing recordings: The state also

prohibits the disclosure or use of the con-

tents of an illegally recorded conversation,

when accompanied by the knowledge that it

was obtained illegally. Mass. Gen. Laws ch.

272 , § 99(C). Distributing videos or photos

in violation of the state’s hidden camera laws

is also prohibited. Mass. Gen. Laws ch. 272,

§ 105(c).

Michigan

Summary of statute(s): Michigan pro-

hibits the recording, interception, use or

disclosure of any conversation, whether in

person, telephone or via any electronic or

computer-based communication system,

without the permission of all the parties.

The state also prohibits the recording and

disclosure of images intercepted in violation

of its hidden camera laws. Violators can face

both civil and criminal penalties.

In-person conversations: The state

requires all parties to give consent before

one can record any private oral conversa-

tion. Mich. Comp. Laws § 750.539c. The

eavesdropping statute has been interpreted

by one court as applying only to situations

in which a third party has intercepted a

communication. This interpretation allows

a participant in a conversation to record

that conversation without the permission of

Reporter’s Recording Guide 15

other parties. Sullivan v. Gray, 324 N.W.2d

58 (Mich. Ct. App. 1982).

Electronic communications: Similarly,

the statute makes it a felony to “make any

unauthorized connection with any tele-

phone or electronic communication using

any device unless all parties give their

consent.” Mich. Comp. Laws § 750.540.

Because the statute dealing with electronic

communications applies to the Internet or

computer-based communication system,

consent likewise is likely required to disclose

the contents of text or e-mail messages sent

between wireless devices. Id.

Hidden cameras: It is a felony to observe,

photograph, record or eavesdrop on a per-

son in a private place where one may rea-

sonably expect to be safe from surveillance

or intrusion without the person’s consent.

Mich. Comp. Laws § 750.539d. Filming on

public streets and parks, for instance, would

not subject a person to liability under this

law. Neither would recording in an area

where access is granted to a substantial por-

tion of the public, such as a hotel lobby. See

deﬁnition “Private place,” Mich. Comp.

Laws § 750.539a.

Criminal penalties: Illegal eavesdropping

can be punished as a felony carrying a jail

term of up to two years and a ﬁne of up to

$2,000. Mich. Comp. Laws § 750.539c. Any-

one who divulges information they know

or reasonably should know was obtained

through illegal eavesdropping or video

surveillance is guilty of a felony punishable

by imprisonment for up to ﬁve years and a

ﬁne of up to $2,000. Mich. Comp. Laws §§

750.539c, -d.

Civil suits: The court may award injunc-

tive relief, as well as actual and punitive

damages to anyone whose private commu-

nications were recorded or disclosed in vio-

lation of the state’s eavesdropping law. Mich.

Comp. Laws § 750.539h.

Disclosing recordings: It is illegal to

distribute, disseminate or transmit a record-

ing, photograph or visual image — as well

as the contents of any intercepted oral or

electronic communication — which a per-

son knows or reasonably should know was

obtained through illegal eavesdropping.

Mich. Comp. Laws § 750.539d, -e.

Minnesota

Summary of statute(s): Minnesota bars

the recording, interception, use or disclo-

sure of any oral, telephonic or electronic

communication by means of any mechanical

or electronic device without the consent of

at least one party to the conversation. The

state also prohibits the recording and disclo-

sure of images intercepted in violation of its

hidden camera laws. Violators can face both

civil and criminal penalties.

In-person conversations: It is legal for

a person to record an oral conversation if

that person is a party to the communica-

tion, or if one of the parties has consented

to the recording — so long as no criminal or

tortious intent accompanies the recording.

Minn. Stat. § 626A.02.

Electronic communications: A person

cannot willfully intercept or record any

telephone, wire or electronic communica-

tion unless that person is either a participant

or has the consent of at least one party to

the communication. Minn. Stat. § 626A.02.

Because the provision of the statute deal-

ing with electronic communications applies

to “any transfer of signs, signals, writing,

images, sounds, data or intelligence of any

nature,” consent likewise is required to dis-

close the contents of text or e-mail messages

sent between wireless devices. Id.

Hidden cameras: The state’s privacy law

prohibits trespassing on private property

to secretly install or use any type of device

for “observing, photographing, record-

ing, amplifying or broadcasting sounds

or events” either another person’s home,

a hotel room, tanning booth or any loca-

tion where a person would have a reason-

able expectation of privacy and either has

undressed or will likely expose some part of

the naked body. Minn. Stat. § 609.746.

Criminal penalties: Unlawful record-

ings, or disclosure of their contents when

there is reason to know the information was

obtained illegally, carry maximum penalties

of imprisonment for ﬁve years and ﬁnes of

$20,000. Minn. Stat. § 626A.02. Violation

of the state’s hidden camera law is a felony

punishable by up to two years imprisonment

and a $5,000 ﬁne. Minn. Stat. § 609.746.

Civil suits: In addition, civil liability for

violations statutorily can include three times

the amount of actual damages or statutory

damages of up to $10,000, as well as punitive

damages, litigation costs and attorney fees.

Minn. Stat. § 626A.13.

Disclosing recordings: A person may not

disclose or use the contents of any inter-

cepted communication if that person either

knows or has reason to know it was obtained

in violation of the state’s wiretapping laws.

Minn. Stat. § 626A.02.

Mississippi

Summary of statute(s): Mississippi bars

the recording, interception, use or disclo-

sure of any oral, telephonic or other com-

munication by means of any mechanical or

electronic device without the consent of

at least one party to the conversation. The

state also prohibits the recording and disclo-

sure of images intercepted in violation of its

hidden camera laws. Violators can face both

civil and criminal penalties.

In-person conversations: A person can

record an oral communication to which

that person is present and participating, or

in circumstances where consent to record is

given by at least one of the parties, unless

the interception was accompanied by a

criminal or tortious intent. Miss. Code Ann.

§ 41-29-531(e).

Electronic communications: The statute

prohibits the willful interception of any wire

or other communication unless that person

is either a participant or has the consent of

at least one party to the communication.

Miss. Code Ann. § 41-29-531(e). Because

the provision of the statute dealing with

“wire communications” speciﬁcally includes

within its deﬁnition not only traditional

landline telephones, but also “cellular tele-

phones, any mobile telephone, or any com-

munication conducted through the facilities

of a provider of communication services,”

consent may likewise be required to disclose

the contents of text or e-mail messages sent

between wireless devices. Miss. Code Ann.

§ 41-29-501.

Hidden cameras: The state prohibits

secretly photographing, ﬁlming or produc-

ing any images of another person “with

lewd, licentious or indecent intent” without

that person’s consent while in a ﬁtting room,

tanning booth or area where there would be

a reasonable expectation of privacy. Miss.

Code Ann. § 97-29-63.

Criminal penalties: Illegally intercepting

communications can be punished as misde-

meanors with jail sentences up to one year

and ﬁnes of up to $10,000. Miss. Code Ann.

§ 41-29-533. Disclosing the contents of such

intercepted communications is a felony pun-

ishable by up to ﬁve years imprisonment and

up to $10,000 in ﬁnes. Id. Filming a person

in violation of the state’s hidden camera law

carries a penalty of up to ﬁve years impris-

onment and a $5,000 ﬁne, but the maximum

jail sentence doubles if the subject being

recorded is a child less than 16 years of age.

Miss. Code Ann. § 97-29-63.

Civil suits: Anyone whose communica-

tions were intercepted, disclosed or used in

violation of the state’s wiretapping law can

seek damages through a civil suit and may

recover both actual and punitive damages,

attorney fees and litigation costs. Miss.

Code Ann. § 41-29-529.

Disclosing recordings: It is a felony for

anyone who is not a law-enforcement ofﬁ-

cer to disclose the contents of intercepted

communications for any reason other than

testifying under oath in a governmental

or court proceeding. Miss. Code Ann. §

41-29-511.

Missouri

Summary of statute(s): An individual

who is a party to an electronic communica-

tion 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 com-

mitting a criminal or tortious act. But a law-

ful recording of an in-person conversation

requires the consent of all parties. Mo. Ann.

Stat. § 542.402 (West 2012).

16 The Reporters Committee for Freedom of the Press

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 inter-

ception 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 reason-

able expectation of privacy (i.e., ﬁlming

conversations on public streets or a hotel

lobby).

Criminal penalties: Illegally recording an

in-person conversation or electronic com-

munication is a felony offense. Mo. Ann.

Stat. § 542.402.

Civil suits: Anyone whose wire commu-

nication 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.

Montana

Summary of statute(s): It is a violation

of “privacy in communications” to record

either an in-person conversation or elec-

tronic communication without the consent

of all parties, except under certain cir-

cumstances. Mont. Code Ann. § 45-8-213

(2011).

In-person conversations: It is unlawful

to record a conversation “by use of a hidden

electronic or mechanical device” without

the knowledge of all parties to the con-

versation. The prohibition does not apply,

however, to the recording of: 1) elected or

appointed public ofﬁcials or public employ-

ees when the recording occurs in the per-

formance of an ofﬁcial duty; 2) individuals

speaking at public meetings; and 3) individ-

uals given warning of the recording. Under

this ﬁnal exception, if one party provides the

warning, then either party may record the

conversation. Because the statute explicitly

applies only to hidden recording devices, a

journalist does not need consent to record

conversations in public where there is no

reasonable expectation of privacy. Id.

Electronic communications: It likewise

is unlawful to record a telephone conversa-

tion without the knowledge of all parties,

except when the communication is of an

elected or appointed public ofﬁcial or public

employee and occurs in the performance of

an ofﬁcial duty or warning of the record-

ing has been provided. Id. The Montana

Supreme Court held that a prison’s notiﬁ-

cation to inmates that their telephone con-

versations were subject to recording satisﬁed

this warning requirement and thus record-

ings of a criminal defendant’s telephone

conversations with others did not violate

the state wiretap law. Montana v. DuBray, 77

P.3d 247 (Mont. 2003).

Hidden cameras: It is a misdemeanor to

surreptitiously photograph or record any

occupant of a home, apartment or other res-

idence. Mont. Code Ann. § 45-5-223. The

law, however, does not criminalize the use

of recording devices in areas to which the

public has access or there is no reasonable

expectation of privacy (i.e., ﬁlming conver-

sations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an

in-person conversation or electronic com-

munication is a misdemeanor offense, and

penalties increase with each conviction of

the law. Mont. Code Ann. § 45-8-213.

Nebraska

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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. A person also can

lawfully record electronic communications

that are readily accessible to the general

public. Neb. Rev. Stat. § 86-290 (2011).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “any oral com-

munication uttered by a person exhibiting

an expectation that such communication is

not subject to interception under circum-

stances justifying such expectation but does

not include any electronic communication.”

Neb. Rev. Stat. § 86-283. Thus, a journalist

does not need consent to record conversa-

tions in public where there is no reasonable

expectation of privacy.

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

images, sounds, data, or intelligence of any

nature,” consent likewise is required to

disclose the contents of text messages sent

between wireless devices. Neb. Rev. Stat. §

86-276.

Hidden cameras: It is a felony to pho-

tograph or record a person “in a state of

undress” in a place where the person has a

reasonable expectation of privacy. Neb. Rev.

Stat. § 28-311.08. 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 conver-

sations on public streets or a hotel lobby).

Criminal penalties: Illegally recording

an in-person conversation or electronic

communication is a felony, but the unlaw-

ful recording of certain types of statutorily

designated communications is only a misde-

meanor offense if the recording is the viola-

tor’s ﬁrst violation of the law. Neb. Rev. Stat.

§ 86-290.

Civil suits: Anyone whose wire, electronic

or oral communication has been recorded or

disclosed in violation of the law can bring

a civil suit for such relief as a judge deems

appropriate, including actual damages,

attorney’s fees and court costs. Neb. Rev.

Stat. § 86-297.

Disclosing recordings: Disclosing the

contents of a wire, electronic or oral com-

munication obtained through illegal record-

ing is a felony. Neb. Rev. Stat. § 86-290.

Nevada

Summary of statute(s): An individual

who has the consent of at least one party

to an in-person conversation can lawfully

record it or disclose its contents, but the

consent of all parties is required to record

a telephone conversation. An exception may

exist, however, for a telephone recording

made with the prior consent of only one

of the parties to the communication in an

emergency situation in which it is impracti-

Reporter’s Recording Guide 17

cal to obtain a court order. Nev. Rev. Stat. §§

200.620, 200.650 (2011).

In-person conversations: It is unlawful

to surreptitiously record “any private con-

versation engaged in by ... other persons”

unless authorized to do so by one of the par-

ties to the conversation. Because the statute

explicitly applies only to surreptitiously

recordings, a journalist does not need con-

sent to record conversations in public where

there is no reasonable expectation of privacy.

Nev. Rev. Stat. § 200.650.

Electronic communications: The con-

sent of all parties to a telephone communi-

cation is required to record it. But because

the prohibition is limited to “wire commu-

nications,” a journalist does not need con-

sent 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.

Nev. Rev. Stat. § 200.620.

The Nevada Supreme Court held that the

consent requirement is not met when an

individual records his or her own telephone

calls without the consent of all other par-

ticipants, noting that “if the legislature had

wanted to [authorize the recording of tele-

phone conversations made with the consent

of only one of the parties], it would have

done so. It seems apparent that the legisla-

ture believed that intrusion upon Nevadans’

privacy by nonconsensual recording of tele-

phone conversations was a greater intrusion

than the recording of conversations in per-

son.” Lane v. Allstate Ins. Co., 969 P.2d 938

(Nev. 1998). That same court stated that the

one-party-consent recording authorized in

emergency situations applies mainly to law

enforcement ofﬁcers who proceed without a

warrant. Id. at 939—40. Thus, it is unlikely

to serve as a defense for journalists who

record phone conversations without the

required all-party consent.

Hidden cameras: It is a misdemeanor to

photograph or record “the private area” of a

person in a place where the person has a rea-

sonable expectation of privacy, to use a hid-

den camera, regardless of whether a person

is in a public or private place, to “up-skirt”

or “down-blouse,” or secretly photograph

or record that person under or through his

or her clothing, and to disclose any images

obtained by these means. Nev. Rev. Stat. §

200.604. The law, however, does not crimi-

nalize 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 com-

munication is a felony offense. Nev. Rev.

Stat. § 200.690.

Civil suits: Anyone whose wire or oral

communication has been recorded in vio-

lation of the law can bring a civil suit to

recover the greater of actual damages, $100

a day for each day of violation or $1,000,

and can recover punitive damages, attorney’s

fees and court costs as well. Note that unlike

most other states’ wiretap statutes, only the

unlawful recording and not the unlawful

disclosure may give rise to a civil cause of

action. Id.

Disclosing recordings: Disclosing the

contents of a wire communication without

either the sender or receiver’s authority to

do so, or an oral communication without the

consent of at least one party to the conversa-

tion is a felony. Nev. Rev. Stat. §§ 200.630,

200.650, 200.690.

New Hampshire

Summary of statute(s): It is unlawful to

record either an in-person conversation or

electronic communication or disclose its

contents without the consent of all parties.

But the violation is decreased from a felony

to a misdemeanor offense if the violator was

a party to the communication or had one

party’s prior consent to record it. N.H. Rev.

Stat. Ann. § 570-A:2 (2012).

In-person conversations: It is unlaw-

ful to record “any verbal communication

uttered by a person who has a reasonable

expectation that the communication is not

subject to interception, under circumstances

justifying such expectation” without ﬁrst

obtaining the consent of all parties engaged

in the conversation. N.H. Rev. Stat. Ann. §

570-A:1. Thus, a journalist does not need

The FCC’s role

In addition to state and federal laws

governing the taping of phone calls, the

Federal Communications Commission

has its own requirements concerning

such taping.

The FCC requires that an individual

notify other parties to a call before using

a tape recorder in an interstate call. The

rule requires that the individual either

get consent from all parties before mak-

ing the call, notify the participants at

the beginning of the recording, or use

a “beep tone” that is repeated regularly

throughout the call.

The FCC rule only applies directly to

local telephone companies, but those

companies are required to impose simi-

lar rules on the public through their

customer agreements. The only penalty

that can be enforced by the local carrier

is revocation of telephone service. (In the

Matter of Use of Recording Devices in Con-

nection with Telephone Service)

Broadcasters and the Phone Rule.

Broadcasting a telephone conversa-

tion without notifying the other party

involved in the conversation is subject to

monetary ﬁnes or an admonition under an

FCC regulation.

The “Phone Rule” states that a person

who intends to broadcast a conversation

or record a conversation for later broad-

cast with another party on the telephone

must, at the beginning of the telephone call,

inform the party that the conversation will

be broadcast. No consent from the party is

required.

The Phone Rule is enforced primarily

against radio “shock jocks,” especially those

who call people while on the air as part of a

practical joke, but the rule has been applied

to all kinds of broadcasters, including news

gatherers.

FCC rulings make clear that when a per-

son originates a call to a “call-in” talk show,

it is presumed the person knows of the pos-

sibility of his or her voice being aired. (In the

matter of Entercom New Orleans License, LLC)

The FCC is authorized by Congress to

issue ﬁnes up to $27,500 for a single offense

and no more than $300,000 for continuing

violations, but may issue only admonitions

on a ﬁrst offense. (Broadcast of Telephone

Conversations)

The Phone Rule extends to broadcast-

ing previously recorded messages. The

FCC has recently imposed ﬁnes for both

for broadcasting a recorded voicemail

greetings of an individual (In the matter of

Courier Communications Corp.) as well as

voicemail messages left on radio person-

ality’s personal cell phones (In the matter

of Capstar TX Limited Partnership)

Even if the recording is not subse-

quently aired, a station can still be ﬁned

under the rule; it is applied wherever

the recording is made with the intent to

broadcast (In the matter of Nassau Broad-

casting III, LLC). However, deciding to

not broadcast a recording after it has

become clear the party does not consent

may become a basis for a reduction of

ﬁnes. If a program host calls and identi-

ﬁes himself and his station, the FCC has

found that this does not inform the other

party that their conversation will be

broadcast (In the matter of REJOYNET-

WORK, LLC)

18 The Reporters Committee for Freedom of the Press

consent to record conversations in public

where there is no reasonable expectation of

privacy.

Electronic communications: It is unlaw-

ful to record any telephone communication

without ﬁrst obtaining the consent of the

participants to the communication. And

because the statute applies to “any form of

information,” oral or written, transmitted

electronically, the consent of all parties like-

wise is required to disclose the contents of

text messages sent between wireless devices.

Id.

The New Hampshire Supreme Court has

held that a party effectively consented to

the recording of a communication when the

surrounding circumstances demonstrated

that the party knew the communication was

being recorded. New Hampshire v. Locke,

761 A.2d 376 (N.H. 1999); see also Fischer v.

Hooper, 732 A.2d 396 (N.H. 1999) (uphold-

ing the sufﬁciency of an instruction that

the jury could consider, under the standard

for implied consent, not only a defendant’s

words but also her actions in determining

whether she consented to the recording

of her conversation), superseded by statute

on other grounds. More recently, the state

high court ruled that a criminal defendant

consented to the recording of a real-time

online conversation because he knew that

the recording on the other party’s computer

of the instant message was necessary for its

recipient to read the communication. New

Hampshire v. Lott, 879 A.2d 1167 (N.H.

2005).

Hidden cameras: It is a misdemeanor to

install or use any device to: 1) photograph or

record “images or sounds” in a place where

there is a reasonable expectation of privacy;

2) “up-skirt” or “down-blouse,” or secretly

photograph or record a person, regardless of

whether the person has a reasonable expec-

tation of privacy, under or through his or

her clothing; and 3) photograph or record

“images, location, movement, or sounds”

originating in areas to which the public has

access or there is no reasonable expectation

of privacy that would not ordinarily be audi-

ble, visible or comprehensible in this pub-

lic area. N.H. Rev. Stat. Ann § 644:9. The

law, however, does not criminalize the use

of recording devices for other purposes in

areas in which there is no reasonable expec-

tation of privacy (i.e., ﬁlming conversations

on public streets or a hotel lobby). The state

Supreme Court found that a classroom was

not a private place where a school custodian

could reasonably expect to be safe from

video surveillance. New Hampshire v. McLel-

lan, 744 A.2d 611 (N.H. 1999).

Criminal penalties: Illegally recording an

in-person conversation or electronic com-

munication is a felony offense. N.H. Rev.

Stat. Ann. § 570-A:2.

Civil suits: Anyone whose in-person

conversation or electronic 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 $1,000, and can

recover punitive damages, attorney’s fees

and court costs as well. N.H. Rev. Stat. Ann.

§ 570-A:11.

Disclosing recordings: Disclosing the

contents of a wire communication obtained

through illegal recording is a felony. N.H.

Rev. Stat. Ann. § 570-A:2. Last December,

Manchester, N.H., blogger and police-

accountability activist Adam Mueller

was indicted on three felony wiretapping

charges after he allegedly publicly disclosed

the contents of recorded telephone conver-

sations he had without the other parties’

consent to the recording. A video Mueller

allegedly posted on CopBlock.org, a website

he co-founded that features videos and blogs

about police activity, depicts his telephone

interviews with a local police ofﬁcial and

two school employees about an incident at

the local high school but contains no indi-

cation that Mueller requested the parties’

consent to record the conversation and post

it online. Mueller is scheduled to stand trial

next month in Hillsborough County Supe-

rior Court and faces 21 years imprisonment

if convicted of all three illegal-disclosure

charges and sentenced to the maximum

of seven years on each count. It does not

appear that he faces any charges related

solely to the actual recording rather than its

public disclosure.

New Jersey

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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. A person also can

lawfully record electronic communications

that are readily accessible to the general

public. N.J. Stat. Ann. § 2A:156A-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 expecta-

tion that such communication is not subject

to interception under circumstances justify-

ing such expectation, but does not include

any electronic communication.” N.J. Stat.

Ann. § 2A:156A-2. Thus, a journalist does

not need consent to record conversations in

public where there is no reasonable expecta-

tion of privacy.

A state appellate court held that if the news

media’s videotaping of events in a hospital

emergency room for a television program

recorded any oral communication between

the plaintiff and other people, such as his

family members, the state wiretap statute

would not apply to criminalize the activity

because there was no indication that the

plaintiff or any other person had a reason-

able expectation of privacy in their conver-

sations in the hospital. “The record does not

suggest that any of [the news media’s] vid-

eotaping was done surreptitiously. In fact,

the footage in the two programs produced

from the videotaping at [the hospital] appear

to have been taken with hand-held cameras

that would have been evident to any person

who was being videotaped. Therefore, there

is no basis for concluding that [the news

organization] violated the Wiretapping Act

in videotaping plaintiff,” according to the

court in Kinsella v. Welch, 827 A.2d 325 (N.J.

Super. Ct. App. Div. 2003).

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

images, sounds, data, or intelligence of any

nature,” consent likewise is required to

disclose the contents of text messages sent

between wireless devices. N.J. Stat. Ann. §

2A:156A-2.

Hidden cameras: It is a crime of the

third degree to photograph or record the

“intimate parts” of a person or one engaged

in a sexual act in a place where the person

has a reasonable expectation of privacy, and

to disclose any images obtained by these

means. N.J. Stat. Ann. § 2C:14-9. 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 com-

munication is a crime of the third degree.

N.J. Stat. Ann. § 2A:156A-3.

Civil suits: Anyone whose wire, electronic

or oral 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 viola-

tion or $1,000, and can recover punitive

damages, attorney’s fees and court costs as

well. N.J. Stat. Ann. § 2A:156A-24.

Disclosing recordings: Disclosing the

contents of a wire, electronic or oral com-

munication obtained through illegal record-

ing is a crime of the third degree. N.J. Stat.

Ann. § 2A:156A-3.

New Mexico

Summary of statute(s): It is an unlaw-

ful “interference with communications” to

record a telephone conversation without the

consent of one of the parties to the commu-

nication. But the statute does not prohibit

recording an in-person conversation with-

Reporter’s Recording Guide 19

out such consent. N.M. Stat. Ann. § 30-12-1

(West 2012).

In-person conversations: Because the

statute deﬁnes the unlawful recording activ-

ity as the “cutting, breaking, tapping or

making any connection with any telegraph

or telephone line, wire, cable or instrument

belonging to or in the lawful possession or

control of another, without the consent of

such person owning, possessing or control-

ling such property” or “reading, interrupt-

ing, taking or copying any message, commu-

nication or report intended for another by

telegraph or telephone without the consent

of a sender or intended recipient thereof,”

it does not apply to conversations not held

over a telegraph or telephone wire. Id. And a

state appellate court held that the transmit-

tal of the contents of a face-to-face conver-

sation recorded through a device concealed

on one of the participants to the conversa-

tion was not the type of eavesdropping

activity criminalized by the state wiretap

statute. New Mexico v. Hogervorst, 566 P.2d

828 (N.M. Ct. App. 1977).

Electronic communications: The con-

sent of at least one party to a telephone

communication is required to record it. But

because the prohibition is limited to com-

munications via “telegraph or telephone

line, wire, cable,” a journalist does not need

consent to record conversations between

two people using cell phones or other wire-

less devices, or to disclose the contents of

text messages sent between wireless devices.

N.M. Stat. Ann. § 30-12-1.

Hidden cameras: It is a misdemeanor to

photograph or record “the intimate areas”

of a person in a place where the person has

a reasonable expectation of privacy, and to

use a hidden camera, regardless of whether

a person is in a public or private place, to

“up-skirt” or “down-blouse,” or secretly

photograph or record that person under

or through his or her clothing. N.M. Stat.

Ann. § 30-9-20. 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 expecta-

tion of privacy (i.e., ﬁlming conversations on

public streets or a hotel lobby).

Criminal penalties: Illegally recording an

electronic communication is a misdemeanor

offense. N.M. Stat. Ann. § 30-12-1.

Civil suits: Anyone whose wire commu-

nication 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 $1,000,

and can recover punitive damages, attorney’s

fees and court costs as well. N.M. Stat. Ann.

§ 30-12-11.

Disclosing recordings: The statute does

not speciﬁcally criminalize the disclosure

of the contents of a wire communication

obtained through illegal recording. How-

ever, the New Mexico Supreme Court held

that the statute’s consent requirement refers

to consent to the sending of the communi-

cation. Arnold v. New Mexico, 610 P.2d 1210

(N.M. 1980). Thus, based on this authority,

a journalist should be sure to get consent to

publish the contents of a recorded conversa-

tion.

New York

Summary of statute(s): An individual

who is a party to either an in-person con-

versation or electronic communication, or

who has the consent of one of the parties to

the communication, can lawfully record it

or disclose its contents. N.Y. Penal Law §§

250.00, 250.05 (McKinney 2012).

In-person conversations: The “mechan-

ical overhearing of a conversation,” or the

“intentional overhearing or recording of a

conversation or discussion, without the con-

sent of at least one party thereto, by a per-

son not present” is illegal. N.Y. Penal Law

§ 250.00. A state appellate court held that

individuals who talk in a manner such that

a non-participating third party may freely

overhear the conversation may have no

reasonable expectation of privacy in it. New

York v. Kirsh, 575 N.Y.S.2d 306 (N.Y. App.

Div. 1991). Thus, a journalist does not need

consent to record conversations in public

where there is no reasonable expectation of

privacy.

Electronic communications: The con-

sent of at least one party to any telephone

communication, including a cellular tele-

phone communication, is required to record

it. Sharon v. Sharon, 558 N.Y.S.2d 468 (N.Y.

Sup. Ct. 1990). And because the provision

of the statute dealing with wireless commu-

nications applies to “any transfer of signs,

signals, writing, images, sounds, data, or

intelligence of any nature,” consent likewise

is required to disclose the contents of text

messages sent between wireless devices.

N.Y. Penal Law § 250.00.

Hidden cameras: It is a felony to photo-

graph or record “the sexual or other inti-

mate parts” of a person in a place where

the person has a reasonable expectation of

privacy, and to use a hidden camera, regard-

less 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. N.Y. Penal Law § 250.45. 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 com-

munication is a felony offense. N.Y. Penal

Law § 250.05.

Disclosing recordings: Disclosing the

contents of a sealed communication that has

been opened or read in violation of the wire-

tap law without the consent of the commu-

nication’s sender or receiver is considered

“tampering with private communications,”

a misdemeanor. N.Y. Penal Law § 250.25.

North Carolina

Summary of statute(s): An individual

who has the consent of one of the parties

to either an in-person conversation or elec-

tronic communication can lawfully record

it or disclose its contents. N.C. Gen. Stat.

Ann. § 15A-287 (West 2012).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “any oral commu-

nication uttered by a person exhibiting an

expectation that such communication is not

subject to interception under circumstances

justifying such expectation, but the term

does not include any electronic communi-

cation.” N.C. Gen. Stat. Ann. § 15A-286.

Thus, a journalist does not need consent to

record conversations in public where there

is no reasonable expectation of privacy.

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

images, sounds, data, or intelligence of any

nature,” consent likewise is required to

disclose the contents of text messages sent

between wireless devices. Id.

Interpreting the deﬁnition of “consent,” a

state appellate court held that implied con-

sent to a recording occurs when a party is

warned of the monitoring and still contin-

ues with the conversation. North Carolina v.

Price, 611 S.E.2d 891 (N.C. Ct. App. 2005).

Hidden cameras: It is a felony to photo-

graph or record, “for the purpose of arous-

ing or gratifying the sexual desire of any per-

son,” a person in a room where the person

has a reasonable expectation of privacy, 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, and

to disclose any images obtained by these

means. N.C. Gen. Stat. Ann. § 14-202. 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 com-

munication is a felony offense. N.C. Gen.

Stat. Ann. § 15A-287.

Civil suits: Anyone whose wire, oral

or electronic communication has been

recorded or disclosed in violation of the law

20 The Reporters Committee for Freedom of the Press

can bring a civil suit to recover the greater

of actual damages, $100 a day for each day

of violation or $1,000, and can recover puni-

tive damages, attorney’s fees and court costs

as well. N.C. Gen. Stat. Ann. § 15A-296.

Disclosing recordings: Disclosing the

contents of a wire, oral or electronic com-

munication obtained through illegal record-

ing is a felony. N.C. Gen. Stat. Ann. § 15A-

287.

North Dakota

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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 communica-

tion,” which is deﬁned as “any oral commu-

nication 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 expec-

tation of privacy. The statute also criminal-

izes 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 con-

sent of at least one party to a telephone

communication is required to record it. But

because the prohibition is limited to com-

munications transmitted wholly or partially

through “wire, cable, or other like con-

nection 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 wire-

less devices. N.D. Cent. Code § 12.1-15-04.

Hidden cameras: It is a misdemeanor to

enter another person’s property to photo-

graph 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 com-

munication is a felony offense. N.D. Cent.

Code § 12.1-15-02.

Disclosing recordings: Disclosing the

contents of a wire or oral communica-

tion 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.

Ohio

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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. Ohio Rev. Code

Ann. § 2933.52 (West 2012).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “an oral commu-

nication uttered by a person exhibiting an

expectation that the communication is not

subject to interception under circumstances

justifying that expectation.” Ohio Rev. Code

Ann. § 2933.51. Thus, a journalist does not

need consent to record conversations in

public where there is no reasonable expecta-

tion of privacy.

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

Under the federal Copyright Act, to be

copyrightable, a work must possess origi-

nality and be ﬁxed in a tangible medium.

Ideas cannot be copyrighted, but the

particular expression of an idea may be.

Because of these requirements, much

interview material often has a weaker

claim to copyright.

Reporter as copyright owner

Journalists can own a copyright interest

in an interview. Still, the nature of a jour-

nalist’s copyright interest in interview

material is not well-deﬁned.

For example, in 1983 Italian journalist

Oriana Fallaci won a lawsuit in the U.S.

District Court in New York City against

the Washington Post for publishing a

translation of a published interview she

conducted with the deputy prime min-

ister of Poland, Mieczylaw Rakowski,

without Fallaci’s permission. The court

accepted that Fallaci was a copyright

owner of the interview article, but did

not describe the nature of her copy-

right interest, perhaps because the case was

a default judgment. (Fallaci v. New Gazette

Literary Corp.).

In some contexts, journalists may have

copyrights to published interviews if the work

they put into assembling the material creates

a “compilation,” which is a speciﬁc type of

artistic work recognized by the copyright act.

In 1981 law student David Quinto pub-

lished an article containing interview mate-

rial about his friends’ summer legal posi-

tions. Quinto sued a paper that republished

his article for copyright infringement, and

he was recognized to own the material from

the interviews. The U.S. District Court in

Washington, D.C., said that even if Quinto

did not own the underlying quotations, his

“selection, arrangement, and ordering” of

them gave Quinto an ownership interest in

the resulting work. The court held the work

to be a “compilation.” (Quinto v. Legal Times)

Interviewee as copyright owner

Interviewees may potentially be copyright

owners in an interview, and courts have

accepted transfers of copyright interest in an

interview from an interviewee to an inter-

viewer as valid. For that reason, a journal-

ist is best protected when they can secure

a written promise from an interviewee,

assigning the interviewee’s copyright inter-

est in the interview material to the reporter.

In 2000, a prisoner and convicted child

molester sued an NBC afﬁliate for copyright

infringement when it broadcast an interview

with him, without his permission. The pris-

oner, Arthur Taggart, argued that the inter-

view was a “performance” to which Taggart

owned rights.

However, the U.S. District Court in East

St. Louis, Ill., did not accept Taggart’s argu-

ments—it held that, because ownership of a

who ﬁxes an expressive work in tangible

form, Taggart could not claim ownership,

among other reasons. (Taggart v. WMAQ

Channel 5)

The case is a reminder of the importance

of the “ﬁxation” requirement in copyright.

For that reason, where a journalist is not

Reporter’s Recording Guide 21

ing with wireless communications applies

to “a transfer of a sign, signal, writing,

image, sound, datum, 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

trespass or “otherwise surreptitiously invade

the privacy of another” to photograph or

record the person “in a state of nudity,”

and to use a hidden camera, regardless of

whether a person has a reasonable expec-

tation of privacy, to “up-skirt” or “down-

blouse,” or secretly photograph or record

that person under or through his or her

clothing. Ohio Rev. Code Ann. § 2907.08.

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 com-

munication is a felony offense. Ohio Rev.

Code Ann. § 2933.52.

Civil suits: Anyone whose wire, oral

or electronic communication has been

recorded or disclosed in violation of the law

can bring a civil suit to recover the greater

of actual damages, $200 a day for each day

of violation or $10,000, punitive damages,

attorney’s fees, court costs and other relief

a judge deems appropriate. Ohio Rev. Code

Ann. § 2933.65.

Disclosing recordings: The statute does

not explicitly criminalize the disclosure of

the contents of a wire, oral or electronic

communication obtained through illegal

recording, although “use” of such contents,

knowing or having reason to know that they

were obtained unlawfully, is a felony. Ohio

Rev. Code Ann. § 2933.52.

Oklahoma

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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. Okla. Stat. Ann. tit.

13, § 176.4 (West 2012).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “any communi-

cation uttered by a person exhibiting an

expectation that such communication is not

subject to interception under circumstance

justifying such expectation.” Okla. Stat.

Ann. tit. 13, § 176.2. Thus, a journalist does

not need consent to record conversations in

public where there is no reasonable expec-

tation of privacy. The statute also criminal-

izes the secret loitering around any building

with the intent to overhear a discussion or

conversation therein. Okla. Stat. Ann. tit.

21, § 1202.

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

images, sounds, data, or intelligence of any

nature,” consent likewise is required to

disclose the contents of text messages sent

between wireless devices. Okla. Stat. Ann.

tit. 13, § 176.2.

Hidden cameras: It is a felony to photo-

graph or record, “in a clandestine manner

for any illegal, illegitimate, prurient, lewd or

lascivious purpose,” a person in a place where

there is a reasonable expectation of privacy

and to disclose any images obtained by these

means, and a misdemeanor to clandestinely

photograph or record the “private area” of a

person, regardless of whether the person is

in a public or private place. Okla. Stat. Ann.

tit. 21, § 1171. 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 expecta-

tion of privacy (i.e., ﬁlming conversations on

public streets or a hotel lobby).

Criminal penalties: Illegally recording an

in-person conversation or electronic com-

munication is a felony offense. Okla. Stat.

Ann. tit. 13, § 176.3.

Disclosing recordings: Disclosing the

responsible for recording an interview, but

instead receives a taped interview from a

third party, they do not own the copyright

in the material when they use it.

For example, in a 2012 case heard by the

U.S. District Court in New York City, a con-

ference call between Swatch executives and

securities analysts, recorded by Swatch, was

obtained from a third party and published

by Bloomberg L.P.. Swatch sued Bloom-

berg, arguing that Bloomberg had infringed

its copyright interest in the conversation.

The court, though noting that “[t]he com-

ments and questions of the securities ana-

lysts are not copyrightable,” assumed that

Swatch could own a copyright in their own

tape-recorded conversation — but said that

Bloomberg’s publication would be autho-

rized under the fair use doctrine. Because

of the largely factual nature of the tape-

recording, the court described Swatch as

possessing only a “thin copyright.” (Swatch

Management v. Bloomberg L.P.).

First Amendment and fair use

defenses

If an interviewee or other entity sues a

journalist for copyright infringement for

using material from a taped conversation, a

journalist is likely to have a strong argument

that they are entitled to use the material,

because of First Amendment principles and

the “fair use” doctrine.

For example, a 1981 Jerry Falwell lawsuit

against Penthouse Magazine for copyright

infringement shows that courts may ﬁnd an

interviewee’s claim to copyright ownership

offensive to the First Amendment. Falwell

sued Penthouse for publishing material from

a Falwell interview without his consent.

The U.S. District Court in Lynchburg, Va.,

rejected his common-law copyright claim,

and called the argument a “broad-based

attack on . . . principles of freedom of speech

and press which are essential to a free soci-

ety.” (Falwell v. Penthouse International Ltd.)

In addition, journalists will often be

able to use interview material under the

fair use doctrine. In 1986 author Katrina

Maxtone-Graham sued a conservative

minister who published excerpts from her

work Pregnant by Mistake in his own schol-

arly work. Pregnant by Mistake is a book

of interviews with women in unwanted

pregnancies.

Although Maxtone-Graham owned the

interview copyrights, the minister’s use

was held to be protected as a fair use.

According to U.S. District Court in

New York City, the four fair use factors

weighed in the minister’s favor. The

court found, in addition to the conserva-

tive minister’s use being transformative,

his using only minimal content, and his

not interfering with the market value of

Maxtone-Graham’s out-of-print book,

that the interview material itself should

be more available for the public’s use

than other copyrighted work. The court

described the work as “essentially repor-

torial” and “source material.” which

should be available for “liberal, but fair,

use.” (Katrina Maxtone-Graham v. James

Tunstead Burchtaell).

This case illustrates that fair use, while

always a context-sensitive decision, often

favors reporters’ rights to use material

they tape-record for reporting. Interview

material, which contain facts and ideas,

is considered more available for fair use

than other copyrighted material under

the second factor of fair use doctrine,

which examines the nature of the copy-

righted work.

22 The Reporters Committee for Freedom of the Press

contents of a wire, oral or electronic com-

munication obtained through illegal record-

ing is a felony. Okla. Stat. Ann. tit. 13, §

176.3. 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. Okla. Stat.

Ann. tit. 21, § 1202.

Oregon

Summary of statute(s): An individual

who is a party to an electronic communica-

tion, or who has the consent of one of the

parties to the communication, can lawfully

record it or disclose its contents. But a law-

ful recording of an in-person conversation

requires that all parties be informed, except

under certain circumstances. A person also

can lawfully record electronic communica-

tions that are readily accessible to the gen-

eral public. Or. Rev. Stat. Ann. § 165.540

(West 2012).

In-person conversations: It is unlawful

to record a “conversation,” which is deﬁned

as “the transmission between two or more

persons of an oral communication which is

not a telecommunication or a radio com-

munication,” unless all participants to the

conversation are speciﬁcally informed that

it is being recorded. Or. Rev. Stat. Ann. §§

165.535, 165.540. The prohibition does not

apply, however, to individuals who record

with an unconcealed recording device state-

ments that are part of any of the following

proceedings: 1) public or semipublic meet-

ings, such as hearings before governmental

or quasi-governmental bodies, trials, press

conferences, public speeches, rallies and

sporting or other events; 2) regularly sched-

uled classes or similar educational activities

in public or private institutions; or 3) pri-

vate meetings or conferences if all others

involved knew or reasonably should have

known that the recording was being made.

Or. Rev. Stat. Ann. § 165.540. A state appel-

late court held that the all-party notiﬁcation

required to record an in-person conversa-

tion did not impermissibly burden the news

media in violation of the First Amendment

because it did not restrict a journalist’s right

to communicate with individuals or gather

news. Oregon v. Knobel, 777 P.2d 985 (Or. Ct.

App. 1989).

Electronic communications: The con-

sent 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 the

transmission of “writing, signs, signals, pic-

tures and sounds of all kinds,” consent like-

wise is required to disclose the contents of

text messages sent between wireless devices.

Or. Rev. Stat. Ann. §§ 165.535, 165.540.

Hidden cameras: It is a misdemeanor to

photograph or record a person “in a state of

nudity” in a place where there is a reason-

able expectation of privacy. Or. Rev. Stat.

Ann. § 163.700. 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 expecta-

tion of privacy (i.e., ﬁlming conversations on

public streets or a hotel lobby).

Criminal penalties: Illegally recording an

in-person conversation or electronic com-

munication is a misdemeanor offense. Or.

Rev. Stat. Ann. § 165.540.

Civil suits: Anyone whose wire, electronic

or oral 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 viola-

tion or $1,000, and can recover punitive

damages and attorney’s fees as well. Or. Rev.

Stat. Ann. § 133.739.

Disclosing recordings: Disclosing the

contents of an in-person conversation or

electronic communication obtained through

illegal recording is a misdemeanor. Or. Rev.

Stat. Ann. § 165.540.

Pennsylvania

Summary of statute(s): It is unlawful to

record either an in-person conversation or

electronic communication without the con-

sent of all parties. 18 Pa. Cons. Stat. Ann. §

5704 (West 2012).

In-person conversations: It is unlawful

to record an “oral communication,” which is

deﬁned as “any oral communication uttered

by a person possessing an expectation that

such communication is not subject to inter-

ception under circumstances justifying such

expectation” without ﬁrst obtaining the

consent of all parties engaged in the con-

versation. 18 Pa. Cons. Stat. Ann. § 5702.

Thus, a journalist does not need consent to

record conversations in public where there

is no reasonable expectation of privacy.

Electronic communications: It is unlaw-

ful to record any telephone communication

without ﬁrst obtaining the consent of the

participants to the communication. And

because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

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

photograph or record a fully or partially

nude person in a place where the person has

a reasonable expectation of privacy, to use a

hidden camera, regardless of whether a per-

son 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, and to transmit

any images obtained by these means. 18 Pa.

Cons. Stat. Ann. § 7507.1. The law, how-

ever, does not criminalize the use of record-

ing devices for other purposes in areas to

which the public has access or there is no

reasonable expectation of privacy (i.e., ﬁlm-

ing conversations on public streets or a hotel

lobby).

Criminal penalties: Illegally recording an

in-person conversation or electronic com-

munication is a felony offense. 18 Pa. Cons.

Stat. Ann. § 5703.

Civil suits: Anyone whose wire, electronic

or oral 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 viola-

tion, or $1,000, and can recover punitive

damages, attorney’s fees and court costs as

well. 18 Pa. Cons. Stat. Ann. § 5725. The

statute also allows any provider of an elec-

tronic communication service, subscriber

or customer aggrieved by a violation of the

law to sue and recover such relief as may be

appropriate, including damages, attorney’s

fees and court costs. 18 Pa. Cons. Stat. Ann.

§ 5747.

Disclosing recordings: Disclosing the

contents of a wire, electronic or oral com-

munication obtained through illegal record-

ing is a felony. 18 Pa. Cons. Stat. Ann. §

5703.

Rhode Island

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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 disclose the con-

tents of face-to-face conversations or elec-

tronic communications that have become

common knowledge or public information.

R.I. Gen. Laws § 11-35-21 (2012).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “any oral commu-

nication uttered by a person exhibiting an

expectation that the communication is not

subject to interception under circumstances

justifying that expectation, but the term

does not include any electronic communica-

tion.” R.I. Gen. Laws § 12-5.1-1. Thus, a

journalist does not need consent to record

conversations in public where there is no

reasonable expectation of privacy.

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

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 crime to pho-

tograph or record the “intimate areas” of

Reporter’s Recording Guide 23

a person in a place where the person has a

reasonable expectation of privacy, to dis-

close any images obtained by these means,

and to look into and take images of, “for

the purpose of sexual arousal, gratiﬁcation

or stimulation,” the interior of an occupied

dwelling. R.I. Gen. Laws § 11-64-2. 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: One who illegally

records an in-person conversation or elec-

tronic communication faces a maximum of

ﬁve years imprisonment. R.I. Gen. Laws §

11-35-21.

Civil suits: Anyone whose wire, electronic

or oral 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 viola-

tion or $1,000, and can recover punitive

damages, attorney’s fees and court costs as

well. R.I. Gen. Laws § 12-5.1-13.

Disclosing recordings: One who dis-

closes the contents of a wire, electronic or

oral communication obtained through ille-

gal recording faces a maximum of ﬁve years

imprisonment. R.I. Gen. Laws § 11-35-21.

South Carolina

Summary of statute(s): An individual

who is a party to either an in-person conver-

sation or electronic communication, or who

has the consent of one of the parties to the

communication, can lawfully record it. S.C.

Code Ann. § 17-30-30 (2011).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “any oral commu-

nication uttered by a person exhibiting an

expectation that the communication is not

subject to interception under circumstances

justifying the expectation and does not mean

any public oral communication uttered at a

public meeting or any electronic communi-

cation.” S.C. Code Ann. § 17-30-15. Thus,

a journalist does not need consent to record

conversations in public where there is no

reasonable expectation of privacy.

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

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 eavesdrop or be a “peeping tom” on the

premises of another. A “peeping tom” is one

who uses audio or video equipment to spy on

or invade the privacy of others. The statute

does not apply, however, to “any bona ﬁde

news gathering activities.” S.C. Code Ann. §

16-17-470. A state appellate court found the

“peeping tom” statute inapplicable to the

conduct of newspaper reporters who tried

to overhear city council proceedings dur-

ing a closed executive session because the

reporters were on public property — not the

premises of another — and did nothing “to

enable them to overhear what was going on

in the executive session other than to wait

in the place provided as a waiting room for

reporters and other members of the public.”

Neither the overhearing nor the publication

of anything overheard violated the statute,

according to the court in Herald Publishing

Co., Inc. v. Barnwell, 351 S.E.2d 878 (S.C.

Ct. App. 1986).

Criminal penalties: Illegally recording an

in-person conversation or electronic com-

munication is a felony offense. S.C. Code

Ann. § 17-30-20.

Civil suits: Anyone whose wire, oral

or electronic communication has been

recorded or disclosed in violation of the law

can bring a civil suit to recover the greater

of actual damages, $500 a day for each day

of violation or $25,000, punitive damages,

attorney’s fees, court costs and other relief

a judge deems appropriate. S.C. Code Ann.

§ 17-30-135.

Disclosing recordings: Disclosing the

contents of a wire, oral or electronic com-

munication obtained through illegal record-

ing is a felony. S.C. Code Ann. § 17-30-20.

South Dakota

Summary of statute(s): An individual

who is a party to either an in-person conver-

sation or electronic communication, or who

has the consent of one of the parties to the

communication, can lawfully record it. S.D.

Codiﬁed Laws § 23A-35A-20 (2012).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “any oral commu-

nication uttered by a person exhibiting an

expectation that such communication is not

subject to interception under circumstances

justifying such expectation.” S.D. Codiﬁed

Laws § 23A-35A-1. Thus, a journalist does

not need consent to record conversations in

public where there is no reasonable expecta-

tion of privacy.

Electronic communications: The con-

sent of at least one party to a telephone

communication is required to record it. But

because the prohibition is limited to “wire

communications,” a journalist does not need

consent to record conversations between

two people using cell phones or other wire-

less devices, or to disclose the contents of text

messages sent between wireless devices. Id.

The state Supreme Court has held that the

consent of one participant to any communi-

cation, whether in person or by telephone,

to the recording removes it from the type

of interception prohibited by the state wire-

tap statute. South Dakota v. Braddock, 452

N.W.2d 785 (S.D. 1990).

Hidden cameras: It is a misdemeanor to

use a hidden camera in a place where one

may reasonably expect to be safe from intru-

sion or surveillance. S.D. Codiﬁed Laws §§

22-21-1, 22-1-2. The law, however, does not

criminalize the use of such recording devices

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 com-

munication is a felony offense. S.D. Codi-

ﬁed Laws § 23A-35A-20.

Tennessee

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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. Tenn. Code Ann. §

39-13-601 (West 2012).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “any oral commu-

nication uttered by a person exhibiting an

expectation that the communication is not

subject to interception under circumstances

justifying that expectation.” Tenn. Code

Ann. § 40-6-303. Thus, a journalist does

not need consent to record conversations in

public where there is no reasonable expecta-

tion of privacy.

Electronic communications: The con-

sent of at least one party to any telephone

communication, including one transmitted

wholly or partly by a cellular telephone, is

required to record it. And because the pro-

vision of the statute dealing with wireless

communications applies to “any transfer of

signs, signals, writing, images, sounds, data

or intelligence of any nature,” consent like-

wise is required to disclose the contents of

text messages sent between wireless devices.

Tenn. Code Ann. §§ 40-6-303, 39-13-604.

Hidden cameras: It is a misdemeanor

to photograph or record, “for the purpose

of sexual arousal or gratiﬁcation,” a person

when the person has a reasonable expecta-

tion of privacy if the image “would offend

or embarrass an ordinary person” who

appeared in the photograph, and a felony to

disclose to any person the image obtained by

these means. Tenn. Code Ann. § 39-13-605.

The law, however, does not criminalize the

use of recording devices for other purposes

24 The Reporters Committee for Freedom of the Press

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 com-

munication is a felony offense. Tenn. Code

Ann. § 39-13-602.

Civil suits: Anyone whose wire, oral

or electronic 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. The statute also allows anyone

whose wire, oral or electronic communica-

tion is or is about to be recorded or disclosed

in violation of the law to seek to enjoin and

restrain the violation in addition to suing for

damages. Tenn. Code Ann. § 39-13-603.

Disclosing recordings: Disclosing the

contents of a wire, oral or electronic commu-

nication obtained through illegal recording is

a felony. Tenn. Code Ann. § 39-13-602.

Texas

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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. Tex. Penal Code Ann.

§ 16.02 (Vernon 2011).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “any oral com-

munication uttered by a person exhibiting

an expectation that the communication is

not subject to interception under circum-

stances justifying that expectation.” Tex.

Code Crim. Proc. Ann. art. 18.20. Thus, a

journalist does not need consent to record

conversations in public where there is no

reasonable expectation of privacy.

Electronic communications: The con-

sent 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 “a

transfer of signs, signals, writing, 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 felony to pho-

tograph or record a person without the

person’s consent in a public place “with

the intent to arouse or gratify the sexual

desire of any person,” or in a bathroom or

private dressing room “with the intent to

invade the privacy of the person, or arouse

or gratify the sexual desire of any person,”

and to disclose any images obtained by these

means. Tex. Penal Code Ann. § 21.15. 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). The state’s highest court for

criminal cases recently held that the statu-

tory prohibition on photographing or vid-

eotaping a person in public without that

person’s consent with the intent to arouse

or gratify a sexual desire did not implicate,

much less violate, a defendant’s free-speech

rights because the statute was not a regula-

tion of speech or the contents of a visual

image but rather a regulation of the photog-

rapher’s or videographer’s intent in creating

the image. Ex parte Nyabwa, 366 S.W.3d 710

(Tex. Crim. App. 2012).

Criminal penalties: Illegally recording an

in-person conversation or electronic com-

munication is a felony offense. Tex. Penal

Code Ann. § 16.02.

Civil suits: Anyone whose wire, oral

or electronic communication has been

recorded or disclosed in violation of the law

can bring a civil suit to recover $10,000 for

each occurrence, actual damages in excess

of $10,000, punitive damages, attorney’s

fees and court costs. Under the statute,

an aggrieved person also is entitled to an

injunction prohibiting further unlawful

interception or disclosure. Tex. Civ. Prac. &

Rem. Code Ann. § 123.004.

The U.S. Court of Appeals in New Orleans

(5th Cir.) held in 2000 that a television sta-

tion and reporter who obtained illegally

recorded tapes of telephone conversations,

but who had not participated in the illegal

recording, could nonetheless be held civilly

liable under the federal and Texas wiretap

statutes. Peavy v. WFAA-TV, Inc., 221 F.3d

158 (5th Cir. 2000). The case was appealed

to the U.S. Supreme Court, along with

two other cases raising similar issues. The

Supreme Court refused to hear the Texas

case but decided in one of the other cases,

Bartnicki v. Vopper, 532 U.S. 514 (2001),

that media defendants could not be held

liable for publishing information of public

concern that was obtained unlawfully by a

source where the media were blameless in

the illegal interception. Following the Bart-

nicki decision, the parties in the Peavy case

settled out of court.

Disclosing recordings: Disclosing the

contents of a wire, oral or electronic com-

munication obtained through illegal record-

ing is a felony. Tex. Penal Code Ann. § 16.02.

Utah

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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 communica-

tion,” which is deﬁned as “any oral commu-

nication 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 expecta-

tion of privacy.

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

ing 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 reason-

ably expect to be safe from intrusion or sur-

veillance, and to use a device for recording

sounds originating in the place that would

not ordinarily be audible or comprehen-

sible 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 expecta-

tion 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 elec-

tronic 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 dam-

ages, 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 com-

munication obtained through illegal record-

ing is a felony. Utah Code Ann. § 77-23a-4.

Vermont

There are no speciﬁc statutes in Ver-

mont addressing the interception of audio

Reporter’s Recording Guide 25

communications, but the state Supreme

Court has held that surreptitious elec-

tronic monitoring of communications in

a person’s home is an unlawful invasion of

privacy. Vermont v. Geraw, 795 A.2d 1219

(Vt. 2002). On the other hand, there is no

objective, reasonable expectation of privacy

in a hospital’s emergency treatment area,

through which medical personnel, hospital

staff, patients and their families and emer-

gency workers, including police ofﬁcers,

“frequently, and not unexpectedly” freely

move, the state high court later held in Ver-

mont v. Rheaume, 889 A.2d 711 (Vt. 2005).

Similarly, the recording of a conversation

in a parking lot is not unlawful because the

conversation was “subject to the eyes and

ears of passersby.” Vermont v. Brooks, 601

A.2d 963 (Vt. 1991).

Vermont has a voyeurism statute that

criminalizes photographing or recording the

“intimate areas” of a person or one engaged

in a sexual act in a place where the person

has a reasonable expectation of privacy, and

secretly photographing or recording a per-

son in a place where the person has a rea-

sonable expectation of privacy within a resi-

dence, and disclosing any images obtained

by these means. Vt. Stat. Ann. tit. 13, §

2605 (2012). 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 expecta-

tion of privacy (i.e., ﬁlming conversations on

public streets or a hotel lobby).

Virginia

Summary of statute(s): An individual

who is a party to either an in-person con-

versation or electronic communication, or

who has the consent of one of the parties to

the communication, can lawfully record it or

disclose its contents. Va. Code Ann. § 19.2-

62 (West 2012).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “any oral com-

munication uttered by a person exhibiting

an expectation that such communication is

not subject to interception under circum-

stances justifying such expectations but does

not include any electronic communication.”

Va. Code Ann. § 19.2-61. Thus, a journalist

does not need consent to record conversa-

tions in public where there is no reasonable

expectation of privacy.

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

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

photograph or record a fully or partially

nude person, and to “up-skirt” or “down-

blouse,” or secretly photograph or record a

person under or through his or her clothing,

in a place where the person has a reason-

able expectation of privacy. Va. Code Ann.

§ 18.2-386.1. 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 expecta-

tion of privacy (i.e., ﬁlming conversations on

public streets or a hotel lobby).

Criminal penalties: Illegally recording an

in-person conversation or electronic com-

munication is a felony offense. Va. Code

Ann. § 19.2-62.

An extreme example: The California anti-paparazzi laws

In 1999 California passed into law

an invasion of privacy statute directed

speciﬁcally at paparazzi activity. The

anti-paparazzi statute, Cal. Civ. Code §

1708.8, has a broader reach in the activity

that it targets than other state’s privacy

laws — and tape-recording activities can

create risks under this statute.

The statute prohibits trespass onto

another’s property “with the intent to

capture any type of visual image, sound

recording, or other physical impression

of the plaintiff engaging in a personal

or familial activity” where it would be

“offensive to a reasonable person.” The

California standard is stricter than the

traditional standard in privacy law, which

protects individuals from actions that are

“highly offensive to a reasonable person.”

The law also creates the right to sue for

“constructive invasion of privacy,” or for

engaging in the same activity described

above under the statute, but without

physically trespassing. Constructive

invasion of privacy occurs when a defen-

dant uses technology to capture images

or sounds that would not have been oth-

erwise accessible to them without tres-

passing.

Also under the statute, one provision

makes committing an assault or false

imprisonment to obtain the same images

or recordings, described by the statute, also

subject to the statute’s penalties — to target

the behavior of paparazzi when they sur-

round a celebrity and prevent them from

moving.

In addition, any “person who directs,

solicits, actually induces, or actually causes

another person” to engage in the activity

prohibited by the paparazzi statute can also

be held liable. The paparazzi statute imposes

stiff penalties on violators — for example,

after the court calculates a monetary award

for the harm caused by the infringing activ-

ity, the court may then impose a judgment of

up to three times that amount on a violator

of the statute.

In 2002, R. Shaun Carter, who was ﬁlmed

in the emergency room at a hospital in San

Diego where he was being treated, sued the

New York Times Co. and Discovery Com-

munications Inc. under the anti-paparazzi

law. The California state court said that the

two companies could not use California’s

anti-SLAPP statute as a defense against

Carter’s claim.

Carter argued that although he had signed

a consent form with the New York Times

reporter who videotaped him, he had been

deliberately misled by the reporter. The

reporter had been dressed like hospital staff,

and Carter argued that he had been deceived

into thinking that the video was for hospi-

tal training purposes (Carter v. Superior

Court).

In another case in 2004, the owners

of casting workshops in the Hollywood

community sued ABC News for broad-

casting an expose of their workshop prac-

tices. (Turnbull v. ABC)

ABC secretly recorded and broadcast

one of the workshop sessions by send-

ing a reporter undercover, and the

workshop sued ABC under the the anti-

paparazzi statute. The court found that

charges could be brought against ABC

under the statute, because ABC might

have trespassed when they recorded

the workshop without permission, and

ABC’s activity was offensive to a reason-

able person — though a jury later ruled

in favor of ABC.

In addition, California Vehicle Code

§ 40008 allows longer jail sentences

of up to 6 months, and steeper ﬁnes of

up to $2,500, for reckless driving “with

the intent to capture any type of visual

image, sound recording, or other physi-

cal impression of another person for a

commercial purpose.” Following a 2012

car chase involving Justin Bieber and

a paparazzo, a Los Angeles prosecutor

invoked the statute for the ﬁrst time

against the paparazzo, according to news

reports.

26 The Reporters Committee for Freedom of the Press

Civil suits: Anyone whose wire, electronic

or oral communication has been recorded or

disclosed in violation of the law can bring

a civil suit to recover the greater of actual

damages, $400 a day for each day of viola-

tion or $4,000, and can recover punitive

damages, attorney’s fees and court costs as

well. Va. Code Ann. § 19.2-69.

Disclosing recordings: Disclosing the

contents of a wire, electronic or oral com-

munication obtained through illegal record-

ing is a felony. Va. Code Ann. § 19.2-62.

Washington

Summary of statute(s): All parties to

either an in-person conversation or elec-

tronic communication generally must

consent to its recording — a requirement

that is satisﬁed by one party’s reasonably

effective announcement, which also must

be recorded, to all other parties that the

conversation is about to be recorded. Wash.

Rev. Code Ann. § 9.73.030 (West 2012).

In-person conversations: It is unlawful

to record a “private conversation” without

ﬁrst obtaining the consent of all parties

engaged in the conversation. Id. Courts con-

sider three main factors in deciding whether

a conversation is considered private and thus

protected under the wiretap law: 1) the dura-

tion and subject matter of the conversation;

2) the location of the conversation and pres-

ence or potential presence of a third party;

and 3) the role of the non-consenting party

and his or her relationship to the consent-

ing party. Lewis v. Washington, 139 P.3d 1078

(Wash. 2006). And the state Supreme Court

has held that the presence of another per-

son during a conversation generally means

the matter is not secret or conﬁdential such

that it would qualify as private. Washington

v. Clark, 916 P.2d 384 (Wash. 1996). Thus,

a journalist does not need consent to record

conversations in public where there is no

reasonable expectation of privacy.

Electronic communications: It is unlaw-

ful to record a “private communication

transmitted by telephone, telegraph, radio,

or other device between two or more indi-

viduals” without ﬁrst obtaining the consent

of all participants in the communication.

And because the statute does not differenti-

ate between oral and written private com-

munications transmitted electronically, the

consent of all parties likewise is required to

disclose the contents of text messages sent

between wireless devices. Wash. Rev. Code

Ann. § 9.73.030.

Under the statute, a journalist employed by

“any regularly published newspaper, maga-

zine, wire service, radio station, or television

station acting in the course of bona ﬁde news

gathering duties on a full-time or contrac-

tual or part-time basis” is deemed to have

the requisite consent to record and divulge

the contents of in-person conversations or

electronic communications “if the consent is

expressly given or if the recording or trans-

mitting device is readily apparent or obvious

to the speakers.” Anyone speaking to such a

journalist who has consented cannot with-

draw that consent after the communication

is made. Id. A Washington appellate court

held that a party has consented to a record-

ing if he or she is aware that the recording is

taking place. Washington v. Modica, 149 P.3d

446 (Wash. Ct. App. 2006). And another

state appellate court ruled that consent to

the recording of a real-time conversation

using online discussion software is implicit

because participants know the conversations

will be recorded on the other party’s com-

puter. Washington v. Townsend, 20 P.3d 1027

(Wash. Ct. App. 2001).

Hidden cameras: It is a felony to photo-

graph or record, “for the purpose of arous-

ing or gratifying the sexual desire of any

person,” another person in a place where

he or she has a reasonable expectation of

privacy, and to “up-skirt” or “down-blouse,”

or secretly photograph or record a per-

son, regardless of whether the person has

a reasonable expectation of privacy, under

or through his or her clothing. Wash. Rev.

Code Ann. § 9A.44.115. 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 reason-

able expectation of privacy (i.e., ﬁlming con-

versations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an

in-person conversation or electronic com-

munication is a gross misdemeanor. Wash.

Rev. Code Ann. § 9.73.080.

Civil suits: Anyone whose in-person con-

versation or electronic communication has

been recorded 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 $1,000, and can recover attor-

ney’s fees and court costs as well. Wash. Rev.

Code Ann. § 9.73.060.

West Virginia

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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. W. Va. Code §

62-1D-3 (2012).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “any oral commu-

nication uttered by a person exhibiting an

expectation that such communication is not

subject to interception under circumstances

justifying such expectation, but such term

does not include any electronic communi-

cation.” W. Va. Code § 62-1D-2. Thus, a

journalist does not need consent to record

conversations in public where there is no

reasonable expectation of privacy.

The state Supreme Court held that a

woman whose children’s screams could be

heard by neighbors nonetheless had a rea-

sonable expectation of privacy in her home

and thus her conversations with her children

were protected by the wiretap law. W. Va.

Dep’t of Health & Human Res. ex rel. Wright

v. David L., 453 S.E.2d 646 (W. Va. 1994).

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

images, sounds, data or intelligence of any

nature,” consent likewise is required to

disclose the contents of text messages sent

between wireless devices. W. Va. Code §

62-1D-2.

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. W. Va.

Code § 61-8-28. 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 expecta-

tion of privacy (i.e., ﬁlming conversations on

public streets or a hotel lobby).

Criminal penalties: Illegally recording an

in-person conversation or electronic com-

munication is a felony offense. W. Va. Code

§ 62-1D-3.

Civil suits: Anyone whose wire, oral

or electronic communication has been

recorded or disclosed in violation of the law

can bring a civil suit to recover the greater of

actual damages or $100 a day for each day of

violation, and can recover punitive damages,

attorney’s fees and court costs as well. W. Va.

Code § 62-1D-12.

Disclosing recordings: Disclosing the

contents of a communication obtained

through illegal recording is a felony. W. Va.

Code § 62-1D-3.

Wisconsin

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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. Wis. Stat. Ann. §

968.31 (West 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

the communication is not subject to inter-

ception under circumstances justifying the

expectation.” Wis. Stat. Ann. § 968.27. Thus,

a journalist does not need consent to record

Reporter’s Recording Guide 27

conversations in public where there is no rea-

sonable expectation of privacy.

Courts consider several factors in decid-

ing whether an individual’s expectation

of privacy in his or her oral statements is

objectively reasonable and thus protected

under the wiretap law: 1) the volume of

the statements; 2) the proximity of other

individuals to the speaker, or the potential

for others to overhear the speaker; 3) the

potential for the communications to be

reported; 4) the actions taken by the speaker

to ensure his or her privacy; 5) the need to

employ technological enhancements for one

to hear the speaker’s statements; and 6) the

place or location where the statements are

made. Wisconsin v. Duchow, 749 N.W.2d 913

(Wis. 2008). In that case, the state Supreme

Court held that, under the totality of the

circumstances, a school-bus driver did not

have a reasonable expectation of privacy in

threatening statements he made to a grade-

school student who recorded the comments.

The school bus was public property, being

operated for a public purpose, and because

the statements sought to be protected were

threats directed at a child being transported

to school, the type of speech likely to be

reported, the bus driver assumed the risk of

disclosure, the court ruled. Wis. Stat. Ann.

at 924-25.

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

images, sounds, data or intelligence of any

nature,” consent likewise is required to

disclose the contents of text messages sent

between wireless devices. Wis. Stat. Ann. §

968.27.

Hidden cameras: It is a misdemeanor

to install a surveillance device or use a sur-

veillance device that has been installed in

a private place to view a nude or partially

nude person. Wis. Stat. Ann. § 942.08. 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 com-

munication is a felony offense. Wis. Stat.

Ann. § 968.31.

Civil suits: Anyone whose wire, electronic

or oral 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 viola-

tion or $1,000, and can recover punitive

damages, attorney’s fees and court costs as

well. Id.

Disclosing recordings: Disclosing the

contents of a communication obtained

through illegal recording is a felony. Id.

Wyoming

Summary of statute(s): An individual

who is a party to either an in-person con-

versation 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. Wyo. Stat. Ann. §

7-3-702 (2012).

In-person conversations: The consent

of at least one party to a conversation is

required to record an “oral communica-

tion,” which is deﬁned as “any oral commu-

nication uttered by a person who reasonably

expects and circumstances justify the expec-

tation that the communication is not subject

to interception but does not include any

electronic communication.” Wis. Stat. Ann.

§ 7-3-701. Thus, a journalist does not need

consent to record conversations in public

where there is no reasonable expectation of

privacy.

Electronic communications: The con-

sent of at least one party to any telephone

communication is required to record it. And

because the provision of the statute deal-

ing with wireless communications applies

to “any transfer of signs, signals, writing,

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 felony to photo-

graph or record, in a “clandestine, surrepti-

tious, prying or secretive nature,” a person

in an enclosed place where the person has

a reasonable expectation of privacy, and to

use a camera or any other recording device,

regardless of whether a person has a reason-

able expectation of privacy, to “up-skirt” or

“down-blouse,” or secretly photograph or

record that person under or through his or

her clothing. Wis. Stat. Ann. § 6-4-304. The

law, however, does not criminalize the use of

such 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 com-

munication is a felony offense. Wis. Stat.

Ann. § 7-3-702.

Civil suits: Civil suits to recover damages

are available only against individuals who,

authorized by court order to record commu-

nications, disclose to anyone the existence of

that recording or surveillance or device used

to accomplish it. Id.

Disclosing recordings: Disclosing the

contents of a communication obtained

through illegal recording is a felony. Id.

Citations in articles:

Cases

Best v. Berard, 776 F.Supp.2d. 752 (N.D. Ill. 2011)

Carter v. Superior Ct. of San Diego Cnty., No. D038091, 2002 WL

27229 (Cal. Ct. App. Jan. 10, 2002)

Fallaci v. New Gazette Literary Corp., 568 F.Supp. 1172 (S.D.N.Y.

1983)

Falwell v. Penthouse Int’l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981)

In the matter of Nassau Broad. III, LLC, File No. EB-

11-IH-1561 (2012)

In the matter of Rejoynetwork, LLC, File Nos. EB-06-IH-1772

and EB-06-IH-1748 (2010)

Maxtone-Graham v. Burtchaell, 631 F. Supp. 1432 (S.D.N.Y.

1986)

Quinto v. Legal Times of Wash., Inc., 506 F.Supp. 554 (D.D.C.

1981)

Snyder v. Phelps, 131 S.Ct. 1207 (2011)

Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., No. 11 Civ. 1006

(AKH), 2012 WL 1759944 (S.D.N.Y. May 17, 2012)

Taggart v. WMAQ Channel 5 Chicago, No. 00-4205-GPM, 2000

WL 1923322 (S.D. Ill. Oct. 30, 2000)

Turnbull v. Am. Broad. Cos., No. 03-3554 SJO (FMOX), 2004 WL

2924590 (C.D. Cal. Aug. 19, 2004)

Turnbull v. Am. Broad. Cos., No. 03-3554 SJO (FMOX), 2005 WL

6054964 (D.C. Cal. Mar. 7, 2005)

Vera v. O’Keefe III, 791 F.Supp.2d 959 (S.D. Cal 2011)

Statutes

Cal. Civ. Code § 1708.8 (2012)

Cal. Veh. Code § 40008 (2012)

Funding for the Reporters Commiee First Aid App

was provided by The Stanton Foundaon

When a judge is closing his courtroom without notice, a town

clerk is telling you a public record can’t be had, or a local

politician says she’ll sue you for libel if you print the truth, you

need to know your rights.

The Reporters Committee First Aid mobile app gives

reporters in the field immediate access to legal resources,

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The app also provides an instant connection to the Reporters

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RCFP FirstAid is available free for iPhone, iPad and Android

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links, or search for “Reporters Committee” in the app stores.

Introducing the

Reporters Committee

FirstAid App

To ﬁnd our app:

RCFP FirstAid is available

free for iPhone, iPad,

Android and Kindle

devices.

Search for “Reporters

Committee” in the app

stores.

The Reporters Committee FirstAid app is designed to help journalists who

need quick answers to legal issues that arise while covering the news. It is meant

as a quick solution during an urgent situation, such as when a judge or other

ofﬁcial is keeping you from a hearing or a meeting, or a police ofﬁcer is threaten-

ing you with arrest. More extensive assistance with media law issues is available

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FirstAid also provides quick access to our hotline for any media law issues,

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The Reporters Committee and this app are available for journalists of all variet-

ies, whether you work for a national news organization or a neighborhood news

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