I’ve been examining the principles of criminal procedures today. Specifically arrest, search, and seizure. One of my favorite facets concerns what is known as “Protected Areas and Interests.” The reason for my fascination with this specifically concerns wiretapping and eavesdropping, the applicable laws, and court interpretations. Wiretapping or eavesdropping is the listening in on conversations of others without their knowledge. Although most of these statutes address wiretapping and eavesdropping, they usually apply to electronic recording of any conversations, including phone calls and in-person communications.

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. Today, 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.

Twelve states today require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Be aware that this means that if there are more than two people involved in the conversation, all must consent to the recording activity.

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 record, and could not naturally overhear from a publicly accessible location. Federal law and most state laws also make it illegal to disclose the contents of an illegally intercepted call or communication.

At least 24 states today have laws outlawing certain uses of hidden cameras in private places. Also, many of the statutes concern unattended hidden cameras, not cameras hidden on a person engaged in a conversation. You should be aware, however, that the audio portion of a video recording 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 may prompt civil lawsuits for invasion of privacy by the other party.

In light of technological advances in electronic devices that record sound and video, their relative affordability, and versatile form factors, it will be very interesting to see how the law evolves.

Back to the books.