Overview
Of the fifty-one jurisdictions surveyed, only Vermont has no statutory provision governing the recording of oral conversations. All of the jurisdictions in some respect control the visual recording of persons and/or places in specified circumstances. The surveyed jurisdictions include the fifty states and the District of Columbia. This survey does not include surveillance by governmental entities or in public places. It also does not include laws relating to the use of unmanned aircraft (drones) to capture images or sound. For more information on that topic see the Drones Annual Report (Archived) in the State Issues Tracker.
Oral Communications
Eleven states1, or twenty-two percent of the fifty states that regulate the recording of oral communications require the permission of all parties to the conversation before it can be recorded. Three of those states recognize exceptions to their all-party consent requirement:
• Washington deems consent to be obtained whenever one party has announced to all other parties to the conversation that it is about to be recorded and the announcement itself is recorded.
• California’s consent requirement applies only to confidential communications and excludes communications in any circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
• In Oregon an in-person, oral communication may not be recorded unless all of the parties are informed of the recording; for electronic communications, a person may record if they either are a party to the communication or one of the parties has consented to the recording. In those states that require the consent of only one person before a communication may be recorded, generally the requirement is satisfied when the recording person is a party to the communication or when one of the parties to the communication has given prior consent. Three2 of the one-party consent states considered, but did not pass, legislation in 2018 that would have made them all-party consent states.
1 California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington.
2 Oklahoma, Tennessee, and Utah.
Video Recording
The vast majority of jurisdictions that criminalize nonconsensual videotaping of a person require that the person be in an area in which that person has a reasonable expectation of privacy. Nine states3 make it a crime only if the videotaping is for the purpose of sexual gratification. Nineteen states4 , or thirty-seven percent of the surveyed jurisdictions, prohibit only nonconsensual videotaping of the intimate parts of another person or of a nude person. Of the seven states5 that exempt video security surveillance systems from their prohibition on videotaping, five6 do so only if notice of the system is posted. Louisiana’s 2018 law governing limited videotaping in short-term rental structures, specifies the notice language that must be used.
3 Idaho, Iowa, Louisiana, Mississippi, North Carolina, North Dakota, Oklahoma, Tennessee, and Washington.
4 Alaska, Colorado, Kansas, Kentucky, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New
Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Virginia, West Virginia, and Wisconsin.
5 Alaska, Arizona, District of Columbia, Florida, Georgia, Michigan, and New York.
6 Alaska, Arizona, District of Columbia, Florida, and New York.
New York
Summary:
A person may record oral conversations where at least one of the participants has consented to the recording. A person may install a security system for the purpose of security where written notice is conspicuously posted or its presence is clearly and immediately obvious.
Statute ‐ Communications:
A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation (the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment), or intercepting or accessing of an electronic communication. N.Y. Penal Law § 250.05
Statute ‐ Videos:
A person may not, for no legitimate purpose, intentionally use or install, or permit the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent. This does not apply when a person installs a security system wherein a written notice is conspicuously posted on the premises stating that a video surveillance system has been installed for the purpose of security, or when video surveillance devices are installed in such a manner that their presence is clearly and immediately obvious. N.Y. Penal Law § 250.45, .65
Florida
Summary:
All parties must consent to the recording and or disclosure of the contents of any electronic, oral or wire communication. A person may have a video surveillance system if written notice is clearly posted on the premises or the presence of the device is clearly and immediately obvious.
Statute ‐ Communications:
It is lawful for a person to intercept a wire, oral, or electronic communication (“Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication) when all of the parties to the communication have given prior consent to such interception. Fla. Stat. § 934.03(2)(d)
Statute ‐ Videos:
A person may have a security system when a written notice is conspicuously posted on the premises stating that a video surveillance system has been installed for the purpose of security for the premises, or have a video surveillance device that is installed in such a manner that the presence of the device is clearly and immediately obvious. Fla. Stat. § 810.145(5)(b)‐(c)
California
Summary:
All parties to any confidential communication must give consent to be recorded, however, any conversations made in public places, government proceedings, or in circumstances where the participants of the conversation could reasonably expect to be overheard or recorded do not require consent. It is prohibited to secretly visually record a person while in any area where the person has a reasonable expectation of privacy.
Statute ‐ Communications:
It is unlawful for a person to, intentionally and without the consent of all parties to a confidential communication (any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded), by means of any electronic amplifying or recording device, eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another. Cal. Penal Code § 632
Statute ‐ Videos:
It is unlawful for a person to look through a hole or opening, or otherwise view, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. Cal. Penal Code § 647(j)
Texas
Summary:
A person may 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. A person may not photograph or record an intimate area of another person without the consent of that person and where that person has a reasonable expectation of privacy.
Statute ‐ Communications:
A person not acting under color of law may intercept a wire, oral, or electronic communication, if the person is a party to the communication or one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act. Tex. Penal Code Ann. § 16.02(c)(4)
Statute ‐ Videos:
A person may not, with the intent to invade the privacy of another, photograph or by videotape or other electronic means record, broadcast, or transmit a visual image of an intimate area of another person, without that person’s consent, if the other person has a reasonable expectation that the intimate area is not subject to public view. Tex. Penal Code Ann. § 21.15(b)(1)
New Jersey
Summary:
A person may 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. A person may not photograph or record the intimate parts of another person or one engaged in a sexual act in a place where the person has a reasonable expectation of privacy and where that person has not given consent.
Statute ‐ Communications:
A person not acting under color of law may intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception unless such communication is intercepted or used for the purpose of committing any criminal or tortious act. N.J. Stat. Ann. § 2A:156A‐4(d)
Statute ‐ Videos:
A person may not photograph, film, videotape, record, or otherwise reproduce in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed. N.J. Stat. Ann. § 2C:14‐9(b)
Laws change!
Confirm for your state’s current laws prior to installing audio or video monitoring and recording devices!
Source and All States: https://www.nar.realtor/sites/default/files/documents/2018-NAR%20Surveillance-Survey-Update.pdf
