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  • Dean Smith

Privacy in the Digital Age: Part II, Audio Recordings

In our last article, we discussed reasonable expectation of privacy as it related to the home and how investigators could legally acquire video and images of an individual who is within their residence.

Before examining privacy as it relates to the public sphere, however, we’ll examine how various states regard the acquisition of audio recordings, which often straddles both public and private spheres.

Audio Recording Laws

Audio recording laws fall into one of three categories: One-party consent, two-party consent, and two-party consent with special provisions.

One Party Consent

Most states, plus the District of Columbia, follow “one-party consent” laws.

Although each individual state law may vary, one party consent generally means that an individual can record conversations they take part in without the other individual(s) consent. Examining your state’s law is important, as some include small differences, but one-party consent typically means that you’re allowed to record conversations that you take part in.

One-Party Consent Example

We’ll use New Jersey as our one-party consent case study. In New Jersey, it is a criminal offense to record or share communications, whether oral or electronic, without the consent of at least one person taking part in the communication. This means that in New Jersey, you are allowed to record conversations provided you are a contributor, or acquired prior consent from at least one involved party, excluding criminal intentions. Communications that are publicly accessible also fall under this protection, as they are widely, and easily, available.

One Party Consent, Personal Conversations, and the Public Sphere:

Without the consent of at least one party, you may not record, obtain, share or use conversations you do not take part in, however, New Jersey law does make an exception for conversations taking place in an environment where the participants should not have a reasonable expectation of privacy, e.g. public parks. This does not include electronic forms of communication.

Two-Party Consent

Two-party consent, sometimes referred to as “all party consent,” states require that all parties involved in a conversation must have consented to be recorded whenever there is an expectation of privacy. This law includes private as well as public spheres. Thus, consent of all parties is required wherever an individual can reasonably expect privacy as defined by the state’s law.

Two-Party Consent Example

Most of the states that follow a two-party consent law also include a unique variation. In broad terms, each state’s two-party consent law requires prior authorization of all participants to record oral, wire, or electronic conversations, and oftentimes detail a caveat or cover a specific subject in depth.

The state of California, for example, forbids the use of devices to record communications, whether wire, oral, or electronic, without the prior consent of everyone taking part in the communication. This means that in California you are not allowed to record conversations you take part in unless all parties agree beforehand.

Two Party Consent, the Public Sphere, and the Californian Caveat for Personal Conversations

California’s laws seem both strict and, relatively, straight-forward, however, when a conversation takes place in public, is a government proceeding, or when the location and/or conditions cause an individual(s) to be easily overheard, the prior consent of all parties is not required, according to the state’s eavesdropping statute. This state also includes specific laws pertaining to celebrities and paparazzi, which forbid trespassing for the purpose of taking photographs, or recording audio, of individuals participating in “personal or familial activity,” and the state’s vehicle code prohibits following other drivers at close distances, or acting recklessly while operating a motor vehicle, with the intent to record audio, take photographs, or capture video for profit.

States with Special Provisions

A few states that use two-party consent laws include either a special provision within their code or an appellate court interpreted the meaning in a unique way.

Illinois includes a special provision for law enforcement. Police officers who are performing their official duties do not require consent of a conversations’ participants. Interestingly, Illinois closed a possible loophole by laying out strict penalties for those caught recording police activities in public.

Massachusetts forbids recording without prior consent, regardless of whether the conversation took place in public or private.

Missouri is a two-party consent state and forbids using devices to record or share wire or oral communications without authorization from all contributing parties.

HOWEVER, Missouri permits the recording and sharing of electronic communications with the consent of at least one party, barring criminal intentions. This applies to conversations using cell phones and includes text messaging between cellular devices. Conversations where one party uses a cell phone and the other uses a landline, however, is protected under their wiretap laws.

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