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“I Have Him Saying That On Audio!” Yes, But Is That Legal? State Recording Laws

Hands down, the best publicly available guide to electronic recording law is that provided by the Reporters Committee For Freedom Of The Press (RCFP). The guide also includes FCC rules and updates to laws already in existence.

Comprehensive yet easily absorbed and implemented, the RCFP’s Recorders Reporting Guide outlines the tape-recording laws and then options with state-by-state definitions and laws. For example, the tape-recording laws for New York:

New York

Summary of statute(s): An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents. N.Y. Penal Law §§ 250.00, 250.05 (McKinney 2012).

In-person conversations: The “mechanical overhearing of a conversation,” or the “intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present” is illegal. N.Y. Penal Law § 250.00. A state appellate court held that individuals who talk in a manner such that a non-participating third party may freely overhear the conversation may have no reasonable expectation of privacy in it. New York v. Kirsh, 575 N.Y.S.2d 306 (N.Y. App. Div. 1991). Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Electronic communications: The consent of at least one party to any telephone communication, including a cellular telephone communication, is required to record it. Sharon v. Sharon, 558 N.Y.S.2d 468 (N.Y. Sup. Ct. 1990). And because the provision of the statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. N.Y. Penal Law § 250.00.

Hidden cameras: It is a felony to photograph or record “the sexual or other intimate parts” of a person in a place where the person has a reasonable expectation of privacy, and to use a hidden camera, regardless of whether a person has a reasonable expectation of privacy, to “up-skirt” or “down-blouse,” or secretly photograph or record that person under or through his or her clothing. N.Y. Penal Law § 250.45. The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony offense. N.Y. Penal Law § 250.05.

Disclosing recordings: Disclosing the contents of a sealed communication that has been opened or read in violation of the wiretap law without the consent of the communication’s sender or receiver is considered “tampering with private communications,” a misdemeanor. N.Y. Penal Law § 250.25.

Straightforward language for a sometimes gray area of investigative rules.

BNI Operatives: Situationally aware.

As always, stay safe.

 

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