Field Guide to Secret Audio and Video Recordings

SECRET AUDIO AND VIDEO RECORDINGS

This page explains the law regarding secretly recording audio and video. For information about using and publishing those recordings, please see our Legal Guide to video releases & the use of Audio and Video Recordings. Keep in mind that laws regarding secretly recording someone can vary from state to state. If you have specific questions related to your state's laws you may want to check out our law school IP and entrepreneurship clinic list here.

Can I secretly record audio of someone?
What is confidential communication?
What is not confidential communiation?
Are communications made in public places confidential?
What are highly offensive circumstances?
Are communications made in a private home or business confidential?
Is the communication confidential when the person sees the recorder?
Are telephone calls confidential?
How much consent do I need to secretly record?
What if I want to record someone committing a crime?
Can I share or publish my recordings with others?
Do I receive any special protections or privileges if I am secretly recording for newsgathering purposes?
What is the punishment for illegally recording someone?
Can I secretly record in a courtroom?
Can I secretly record at public meetings?
Can I secretly record video?
What if the video also contains audio?



Can I secretly record audio of someone?
The general rule is that it is a crime in California to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication, without the consent of all parties. (California Penal Code §§ 631, 632).  A conversation is not limited to just two or three people. For example, an audience member listening to a speaker is a party. If the information is confidential or you are not a party, you cannot secretly record.The amount of consent required depends on your state.  -top-

 

What is confidential communication?
Confidential communication is anything a person reasonably expects to be private and confidential. It is not confidential if it can naturally be
overheard by someone else. For example, if you are in public and do not expect to be recorded, but expect others to hear you, then it is not confidential.  -top-


What is not confidential communication?
Confidential communication includes conversations in public areas (except for highly offensive circumstances!), and also situations where the person being recorded has an awareness that they are being recorded.  -top-


Are communications made in public places confidential?
No. Communications made in public are not confidential. Public places are public gatherings, including any legislative, judiical, or executive proceedings, in which one could expect to be overheard. The circumstances determine whether the place is public. For example, a conversation held in a crowded restaurant, close to other tables, and with no attempt to keep the conversation confidential is not protected. On the other hand, a conversation held in a secluded restaurant, apart from the presence of strangers, and with efforts to keep the conversation confidential is protected. An exception to public places is when the communication is highly offensive.  -top-


What are highly offensive circumstances?
These are situations that go beyond the standard sense of dignity. These are extremely private situations. For example, recording emergency recoveries during public accidents.  -top-

Are communications made in a private home or business confidential?
Yes. There is a certain level of privacy inherent in a home or business. Inviting someone into a private home or business does not waive confidentiality. However, the circumstances may determine whether the communication confidential. The main question is whether the person being recorded reasonably expects confidentiality.  -top-


Is the communication confidential when the person sees the recorder?
If the person sees the recorder and is aware that they are being recorded, they are presumed to have given consent. If the person sees the recorder but does not know what it is, this is not presumed consent. It is not whether the person sees the recorder, but whether they know it is a recorder.  -top-


Are telephone calls confidential?
Telephone calls are confidential if the person reasonably expects privacy. For example, a call made from your house would be confidential. However, a cell phone conversation conducted while walking down a busy sidewalk is not confidential.  -top-

How much consent do I need to secretly record? States differ on the amount of consent required. There are two types: one party and two party consent. CA requires "two party" consent. This means that you must have consent from the person you are recording. This restricts the ability to secretly record in CA. Most states however only require "one party"consent. This means that you can secretly record someone without telling them, so long as you are a party to the conversation. However, you do not need any consent if the communication is not confidential. You can checkout this chart to see how much consent your state requires.  -top-


What if I want to record someone committing a crime?
California provides an exception-You can record someone without their consent, if it will be used to prove kidnapping, extortion, bribery, or a violent felony. Most states will not allow you to record someone in furtherance of your own crime or tort.  -top-


Can I share or publish my recordings with others?
Under California law, it is illegal to disclose any confidential information unlawfully obtained. Even if you do not disclose the recordings, you can still be liable for unlawfully obtaining the communications. You can disclose recordings you lawfully obtain. Please see our page on "Use of Recordings" for what restrictions you have in publishing your recordigns.  -top-


Do I receive any special protections or privileges if I am secretly recording for newsgathering purposes?
No, newsgathering does not provide any immunities from generally applicable laws. Newsgathering recordings do receive special considerations when a person brings an invasion of privacy claim and the recordings were lawfully obtained. Courts have generally given greater weight to public interest over privacy rights. Newsgathering privileges do not apply to recording communications, however, they do appy for use of those recordings.  -top-


What is the punishment for illegally recording someone?
In CA, the punishment is $2,500, a maximum of one year in prison, or both. For a repeat offense, the punishment is $10,000, a maximum of one year in prison, or both.   -top-


Can I secretly record in a courtroom?
Yes, if you received permission. In CA state court, you must get advanced permission from the judge to record audio. For video recordings, you need to file an official media coverage request. Recording devices and cameras are prohibited in Federal Courts, unless you get permission. You can obtain permission by filing an Application for Permission to Photograph, Record, or Broadcast from the Courtroom. This must be filed three days in advance. For more information about recording court proceedings, please see this helpful Citizen Media Law guide.  -top-


Can I secretly record at public meetings?
Public meetings are required by law to be open to the public. In CA, audio or video recordings are allowed, provided there is no disruption or interference with the meeting. For more information on access to public meetings, please see this helpful Citizen Media Law guide.  -top-


Can I secretly record video?
Video has less restrictions and limitations compared to audio recordings. You can legally record video without consent, unless it violates the privacy rights of others. Courts have banned secret video recordings in locations such as bathrooms, locker rooms, changing rooms, bed rooms, where persons expects a heightened level of privacy. Courts have allowed secret recordings of babysitters, elder care employees, and other instances without consent.  -top-

What if the video also contains audio?
All audio tracks contained in a video recording are subject to the "Audio Recordings" rules discussed above. Therefore, a video recording of someone might not require their consent, but would for the audio of them speaking in that same recording.  -top-