Is It Illegal to Video Record Someone Without Their Consent?

Michelle Wilson - February 1, 2024

You might feel inclined to film your ex-partner when they’re with your child for safety concerns or if you are undergoing a business deal gone sideways. However, while you might be taking these steps out of your protection, the question remains, “Is it legal?”

Typically, any spoken exchange recording among two or more individuals is illegal unless you obtain consent from at least one party.

One-Party Vs. All-Party Consent States

Before diving into the question of whether it is legal, it is worth considering the difference between “one-party vs. all-party consent states” and the legal requirements regarding consent by location. Currently, 36 states in addition to the District of Columbia, operate under one-party consent laws. In such states, if you’re participating in the conversation, you can record it without obtaining consent from the other party. Conversely, 11 states enforce all-party consent laws: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Under these laws, all individuals involved in the conversation must agree that the recording is lawful.

Michigan, Connecticut, and Oregon currently have a combination of both one-party and all-party consent laws, which vary depending on the circumstances. On the other hand, Vermont does not adhere to either standard, as there is presently no clear legislation regarding recording without knowledge.

When In Public

When filming or photographing individuals in public settings, respecting their privacy rights is essential. Blurring strangers’ faces and omitting audio is necessary to ensure compliance with privacy laws. This is worth noting with the rise of video-based platforms like TikTok hosting 34 new million videos each day, with many including public recordings that have people in the background. While many view this as different from the rules of print, which require written consent to reproduce images of people’s faces in magazines or newspapers to avoid legal repercussions, it is worth noting that the care in which you share video content should be more or less the same.

While public figures like celebrities or politicians have less expectation of privacy, caution is still warranted to prevent defamation or misinformation. Exercise particular care when dealing with images of the president and their family, as legal action can easily ensue from any perceived wrongdoing.

Making Recordings In Your Home

Navigating the legality of recording someone within the confines of your own home involves understanding pertinent U.S. laws and ethical guidelines. While federal law typically permits using hidden cameras in one’s residence without consent, state laws may vary, especially concerning audio recordings. Many states now grant parents the right to discreetly monitor nannies, and family members may record caregivers for elderly relatives to ensure their safety. This trend has led to the growing adoption of nanny cams by working parents seeking peace of mind. Online data reinforces this trend by highlighting that analysts predict that the nanny cams market will grow another 10% in the next year.

However, conducting thorough research on the laws governing hidden cameras and nanny cams in your state is essential to ensure compliance. Consulting with a lawyer can provide further clarity, particularly if you have specific usage intentions. Additionally, before recording, you will want to recognize and respect individuals’ privacy rights, especially in areas of the home where they have a reasonable expectation of privacy, such as in bedrooms. By understanding the legal framework and adhering to ethical principles, you can responsibly navigate the complexities of recording within your home environment.

Recording on Private Property

While federal and state laws typically permit recording in public places and on private property with consent, obtaining permission from the property owner in commercial or business establishments is crucial. Prior authorization ensures compliance and fosters respectful relationships with proprietors and patrons alike. Blurring faces is advisable when recording in such settings unless you obtain explicit consent from all parties involved. While there are generally no prohibitions on sound recording for property owners, businesses may have their policies regarding audio recording on private premises. It’s advisable to seek clarification from the property owner to avoid legal issues.

Notably, platforms like Airbnb allow property owners to install recording devices, such as security cameras or baby monitors, with disclosure in the property listing. However, certain areas, such as bedrooms and bathrooms, are off-limits for recording devices to safeguard privacy.

Recording in the Workplace

Recording conversations within the workplace presents nuanced legal and ethical considerations. While it is not inherently illegal for employees to record discussions at work, such actions may result in disciplinary actions or even termination. However, recordings made by employees during workplace interactions can serve as admissible evidence in tribunal cases, provided that the employee was present during the recording. A precedent set by previous cases suggests that the employee’s active participation is necessary in determining the admissibility of recordings. Consequently, recordings obtained covertly, such as leaving a hidden recording device in a room, are unlikely valid evidence.

Although there are exceptions, tribunals generally view employers who secretly record their employees with disfavor. Employers must adhere to formal disciplinary procedures and refrain from resorting to covert surveillance. Employees may have various reasons for wanting to record conversations, including documentation for future reference, evidence for legal proceedings, or even improper purposes like blackmail.

Recording a Conversation

When it comes to conversation recording, obtaining consent stands as the pivotal factor. Generally, experts will recommend that you show courteousness and legal prudence by informing all participants involved in a conversation about your intent to record. However, laws regarding consent vary among states, with some requiring only one party to be aware of the recording. Enacted in the Omnibus Crime Control Act of 1968, the Wiretap Act exists to address public concerns arising from the clandestine recordings of activists during the 1960s.

Under the federal Wiretap Act, it is unlawful to secretly record oral or telephonic communications that participants reasonably expect to be private. However, the legality of recording such communications varies from state to state. In cases where federal law lacks explicit privacy protections, state laws determine recordings’ legality. Exceptions to the Wiretap Act exist when at least one participant in the conversation provides consent to the recording or when the law authorizes the recording. Practically speaking, recording a conversation with the consent of the individual making the recording is typically permissible under 18 U.S.C. 2511.

Final Considerations

When preparing to record videos for film competitions or online sharing, meticulous planning regarding location is essential. Always obtain permission from the owner before recording in private residences or businesses to avoid potential legal issues. Additionally, exercise caution in public settings to ensure that individuals have reasonable privacy. Avoid recording in changing rooms, locker rooms, or restrooms, where people expect a certain level of privacy. Furthermore, if recording in your home, be mindful of selecting discreet locations and inform others if you plan to record in areas where people expect privacy. Keep in mind that while you might feel as though making a recording, legal or not, is your only way of uncovering information to the public eye, it is worth noting that many who opt to run a background check have been able to find evidence equivalent to that of a recording.