(For a variety of reasons, video recording becomes necessary at times. This week’s video displays a new “stealth cam” that is often used in businesses or as a nanny cam. We do, however, caution people to become familiar with the laws in their state regarding such video taping.)
Last week, in Part 1 of our series on tape-recording rules and regs., we specifically covered audio taped conversations. This week, in the second and final part of Tape-Recordings, Dos and Don’ts, we focus on video taped recordings.
Generally, one may record, film, broadcast or amplify any conversation with all of the parties’ consent. It is always legal to tape or film a face-to-face interview when your camera is in plain view. The consent of all parties is presumed in these instances.
The use of hidden cameras is covered only by the wiretap and eavesdropping laws if the camera also records an audio track.
Expectation of privacy.
A number of states have adopted laws specifically banning the use of video and still cameras where the subject has an expectation of privacy. Maryland’s law on this matter, for example, bans the use of hidden cameras in bathrooms and dressing rooms.
Federal law explicitly does not protect the taping if it is done for a criminal or tortious purpose. Many states have similar exceptions. Case: Employees of a “psychic hotline” who were secretly recorded by an undercover “Primetime” reporter sued ABC for violation of the federal wiretapping statute, arguing that the taping was done for the illegal purposes of invading the employees privacy. (Sussman v. American Broadcasting Co.)
A party whose conversation is recorded, with consent, may raise a claim of trespass and intrusion, if he or she was unaware of the true intent of the recording. For example, an undercover reporter, posing as a patient, leaves a reocrder in plain sight, during a medical visit. The doctor examining the “patient’ is aware of the recording but is told it is for personal use (to better enable explanation of the “illness or medical findings” to family…). Had the doctor known the true intent of the reporter, to broadcast this recording, it may have casued him to revoke his consent.
Other consent issues.
Whether a recording device is in plain view may be an issue. A small camera protruding from a briefcase may not be enough to validate presumed consent by the party being taped.
It is always advisable for the investigative specialist to ensure his/her awareness of taping permissions in the state of operation.
BNI Investigators: Street Smart; Web Savvy.