We have become a video-happy country with just about every event being videotaped and posted online for the world to see. The question is, in this video-centric world, is it even legal to video or audiotape someone without their consent?
The laws regarding videotaping people without their consent depend on where you do it.
Anyone has the right to video anyone and anything that is plainly visible from a public space. According to the ACLU, this includes “federal buildings, transportation facilities, police, and other government officials carrying out their duties.” This is a constitutional right you have as an American.
You may also take photographs of anyone or anything that you can see clearly from public property. Each state sets its own laws regarding videotaping someone without their consent, but typically the language reads you can as long as the person doesn’t have a “reasonable expectation of privacy.”
If you record video without sound, you might be able to slip by strict laws better than if you record the audio along with it.
When you are on private property, the legal owner of the property must provide you with proper consent. If you videotape someone without their permission on private property, they can order you to leave, they may also have you arrested, and they could also sue you personally.
If you visit a store or restaurant that has a posted sign warning you that you cannot videotape on their premises, if you do, they can legally sue you and would probably win.
Most laws explicitly prohibit anyone from videotaping someone unclothed or engaged in sexual activity (of any kind) in a private location. This type of video tapping is covered under the federal Video Voyeurism Prevention Act and includes private bathroom stalls or a locker room. If you violate this law, you could end up with steep fines or even jail time.
Federal Wiretap Act
The U.S. federal Wiretap Act was enacted to protect the privacy of citizens. The Act covers illegal wiretaps of your phone and using other audio devices to record people without their knowledge. You also cannot intercept or share the contents of these recordings. If you do, you could face criminal and civil penalties.
However, the federal Wiretap Act includes two significant exceptions. The first is that a phone company or mobile service provider can monitor phone calls if they have a court order or to inspect and service their equipment. The only other way they can do this is if someone is illegally using their equipment or service, and they need to protect themselves.
The other exception involves law enforcement. With a valid court order, police and federal law enforcement agencies are allowed to spy on personal phone calls. If the police suspects someone of illegal activity, they can request that a judge sign off on a wiretap so they can gather evidence undetected.
Is Audio Recording Without Consent Legal?
Laws regarding audio recording without legal consent are much stricter than for video.
Even in public spaces, although you can videotape someone, you cannot necessarily audiotape them without one person’s consent or all parties. This may be especially true if you are recording the police or other law enforcement representatives. Be very careful when recording anyone without their consent.
You should consult both state and federal laws to determine what is and what is not allowed in your specific area before video or audio tapping anyone in any circumstance.
Typically, federal laws require one-party consent for audio recordings. However, it’s always a good idea to check state laws also.
One-Party Consent vs. Two-Party Consent - Audio Recording
Another factor complicating this question is that there are two types of states: one-party consent and two-party consent. So, what does that mean?
It means that depending on where you live; you may need only one party’s consent (this could be you as you are recording, which is one party to the conversation) to audiotape a conversation. In other parts of the country, you must have both (or all) parties consent, or it is deemed illegal.
Two-party consent states include California, Connecticut, Flrida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington. All other states are one-party consent states.
The Penalties for Recording Someone Without Their Permission
There are some severe consequences for filming or recording someone without their permission. Depending on state or federal laws, you could be subject to fines, jail time, and even civil lawsuits with steep damages. Violating the recording laws could even result in a misdemeanor charge on your criminal record.
The Bottom Line
Although there are various laws throughout the country about video and audio recording someone without their consent, it really boils down to a case-by-case basis. Not every situation is the same, and investigators will have to find the truth to apply the law to see if any laws were violated.