Audio Surveillance Laws by State

KEY TAKEAWAYS

• Surveillance laws are governed by several federal and state provisions.

• Due to technological advancement violations of surveillance laws have become more prevalent. 

• The penalties for breaching surveillance laws can be severe, including substantial fines and imprisonment.

Understanding Video Surveillance Laws by State: Is It Illegal to Record Without Permission?

Importance of Understanding Surveillance Laws

In an age where cameras and recording devices are an everyday part of life, it is crucial to understand surveillance laws to avoid violating them. Before you hit record on your camera phone or install security cameras in your home or business, you must be up-to-date on surveillance laws. Violating surveillance laws has harsh consequences, including fines, penalties, and even jail time.

Overview of Federal vs. State Laws

Several federal laws govern the use of surveillance, including, but not limited to, the Electronic Communications Privacy Act (ECPA) of 1986, the Foreign Intelligence Surveillance Act (FISA) of 1978, the USA Patriot Act of 2001, the Communications Assistance for Law Enforcement Act (CALEA) of 1994, and the Federal Intelligence Surveillance Act Amendments Act of 2008 (FISA Amendments Act). Laws safeguard people by restricting the timing and manner in which they can be lawfully surveilled.

Additionally, individuals are also protected by the Fourth Amendment of the Constitution, which safeguards privacy rights by governing how government agents may surveil people's effects, including their electronic devices.

State regulations generally protect people’s reasonable expectation of privacy. However, each state has its own rules, so it is essential to consult your jurisdiction for specific guidance.

Consent Requirements in Audio and Video Surveillance

Federal law and some states follow the one-party consent rule. Federal law 18 U.S.C. 2511(2)(d) permits recording phone calls or in-person conversations with the consent of at least one person involved. If you or another adult consented to the recording, you can keep using those audio-equipped cameras. Some states have more stringent requirements that must be followed, such as the all-party consent rule. 

Audio Surveillance State-by-State Laws: One-Party Consent Statutes

With certain exceptions explained below, the following states and the District of Columbia allow the recording of conversations without the knowledge of all parties to the conversation if at least one party in the conversation consents.. This law is called a “one-party consent” statute.

Alabama law (Ala. Code,13A-11-30 (1) & 13A-11-31) states that it is illegal to record or even to overhear any conversation through “any device” without at least one person consenting to the recording who is engaged in the conversation.

Alaska (Alaska Stat., 42.20.310) has similar laws in effect and makes it a misdemeanor.

Arizona law (Ariz. Rev. Stat. Ann..13-3005 (A)(1) & (2)) makes it a class 5 felony to intercept a communication to which they are not a party or to aid someone else in doing so without the consent of at least one party. Arizona permits the “subscriber” (the person whose name is on the telephone bill) to intercept calls without being a party to the conversation and without the consent of the parties to the call.

Arkansas law (Ark. Code Ann.,5-80-120(a)) makes it illegal to intercept or record any conversation, whether oral, wire, or phone unless the person recording is part of the conversation or has given permission.

Colorado law (Colo. Rev. Stat., 18-9-303(1)) makes it a felony to record or intercept a phone or electronic communication without getting the consent of at least one person in the conversation. News media personnel may use approved tools and various equipment to investigate newsworthy events.

Connecticut law (C.G.S.A. 53a-187,-89; C.G.S.A. 52-570d) is a “mixed” state as recordings are allowed in some circumstances but not others. Connecticut requires at least one party's consent to record an in-person conversation. For telephonic conversations, consent of all parties is required to avoid potential civil liability, though criminal penalties do not apply if at least one party has consented to the recording.

Delaware law (Del. Code. Ann. tit. 11, § 1335(a)(4) & 11,2402(c)(4), U.S. v. Vespe, 389 F. Supp. 1359 (1975)) has conflicting rules about whether it is legal or not to record another person’s conversation with or without the consent of one party. Section 1335 requires all-party consent. Section 2402 allows for one-party consent, unless the communication is intercepted for the purpose of a criminal act. U.S. v. Vespe holds that an individual has the right to record their own conversations.

The District of Columbia’s laws (D.C. Code. Ann. 23-542(b)(3)) prevent anyone who pretends to be an agent of the law from intercepting an oral communication or wire.

Georgia law (Ga. Code Ann. 16-11-62 & 16-11-66(a)) makes it a felony to record a private conversation in a private place. Recording is allowed if one of the parties is knowledgeable or if one party has given consent.

Hawaii law (Haw. Rev. Stat.803-42(b)(3)(A)) says recording a conversation is legal if one person in the conversation knows about the recording or has given consent.

Idaho law (Idaho Code 18-6702(d)) says it is legal to intercept a communication as long as those involved have approved of it.

Indiana law (Ind. Code Ann. 35-33.5-1-5(2)) states that only the sender or receiver may record a conversation or acquire the contents of it.

Iowa law (Iowa Code Ann.808B.2(2)(c)) says that a listener or sender of the information must be openly present and a participant of the conversation, but it does not require the other party to be aware of it.

Kansas law (Kan. Stat. Ann. 21-4002(a)(1)) prohibits eavesdropping in conversations without having obtained consent of the user of the device. The highest court in Kansas permits one-party consent, and it may not be challenged in court.

Kentucky law (Ky. Rev. Stat. Ann. 526.010 & 526.020) states that eavesdropping is illegal if a device of any type is used. It is considered a Class D felony.

Louisiana law (La. Rev. Stat. 15:1303(b)(4)) states that any conversation can be recorded as long as the individual is a party to it or if consent has been given.

Maine law (Ma. Rev. Stat. 15:1303(b)(4)) makes it a Class C crime to hear, record, or help another person to hear a wire of oral communication with the use of a device.

Michigan law (Mich. Comp. Laws An. 750.539(c); Sullivan v. Gray, 117 Mich App. 476) appears to require all-party consent, but Sullivan v. Gray interpreted the statute as only applying to third-party intercepts of a conversation. A participant in the conversation does have the right to record it.  

Minnesota law (Minn. Stat. Ann 626A.02 subd. 2(d)) makes it legal to record or intercept a communication as long as the person is a party in the conversation or has given consent.

Mississippi law (Miss. Code Ann. 41-29-531(e)) states that a communication cannot be intercepted or recorded unless the person is a party to the conversation or has given consent.

Missouri law (Mo. Ann. Stat. 542.402(2)(3)) states that a party to the communication, or if they have given consent, can record it and disclose the contents.

Nebraska law (Neb. Rev. Stat. 86-290(2)(c)) requires consent or that the individual recording it be a party to the conversation.

Nevada law (Nev. Rev. Stat. 200.620, 200.650, Lane v. Allstate Ins. Co., 114 Nev. 1176 (1998)) is a mixed state. For private in-person communications, there is a one-party consent rule. For telephonic communications, there is an all-party consent rule. 

New Jersey law (N.J. Rev. Stat. §2A:156A-4(d)) makes it illegal to intercept any communication, with the exception that the person must be a party to the conversation or give consent.

New Mexico law (N.M. Stat. Ann 30-12-1(C) & (E)) states that consent of the party involved must be obtained before interfering with the communication, which has been interpreted as consent to sending the information.

New York law (N.Y. Penal Law,250.00(1) & 250.05) makes it illegal to wiretap without the consent of one person involved in the conversation. This also applies to mobile phones.

North Carolina law (N.C.Gen Stat.15A-287(a)) says that it is a Class H felony to intercept communications without having the consent of at least one person involved in the communication. It is also illegal to hire someone else to do it.

North Dakota law (N.D. Gen Stat.15A-287(a)) states it is a Class C felony to intercept a communication without the consent of at least one of the parties.

Ohio law (Ohio Rev. Code Ann. 2933.52(B)(4)) states that recording or intercepting a conversation is not a crime if one person involved gives consent.

Oklahoma law (Okla.Stat. Ann. tit. 13.176.2, 13.176.4) states that it is not a crime when consent has been given or when the one recording is involved in the conversation.

Oregon law (Or. Rev. Stat. 165.540, 165.543) is a mixed state. For electronic and telephonic communications, there is a one-party consent rule. For in-person communications, there is an all-person consent rule.

Rhode Island law (R.I. Gen. Laws 11-35-21(c)(3)) states that it is illegal to intercept or record a conversation unless one party provides consent.

South Carolina law (S.C. Code Ann. 17-30-15, 17-30-30) requires one-party consent to record electronic and in-person communications.

South Dakota law (S.D. Codified Laws Ann. 23A-35A-20(1)) states that one person may record a conversation if they are present, and consent is not needed. Consent is not necessary for non-electronic communications where privacy may not be expected.

Tennessee law (Tenn. Code Ann. 39-13-601(b)(5)) states that a person who is a party to the conversation can record it if they have given consent. A non-electronic conversation may be recorded if privacy cannot be expected.

Texas law (Tex. Penal Code Ann. §16.02(c)(4)(A)&(B)) states that recording may occur by anyone involved in the conversation or where consent has been granted by one person.

Utah law (Utah Code Ann. §§77-23a-4(7)(b)) states that a conversation can be recorded if it is conducted by someone in the conversation or when consent is given by one participant. Consent is not required for oral communications where privacy cannot be expected.

Vermont law has no statutes or case law directly on point. Vermont’s highest court held that using electronic monitoring of conversations in someone’s home is an illegal invasion of privacy.

Virginia law (Va. Code Ann. § 19.2-62.) states that a participant in a conversation may record it, or if one member of the party gives consent.

West Virginia law (W. Va. Code §62-1D-3(e)) says that recording is legal, as is disclosing the information when they are a participant or have been given permission from one participant.

Wisconsin law (Wis. Stat Ann. §§968.31(c) &885.365(1)) states that a party in the conversation may record it, or when permission has been given by one party. However, a recording may not be used as evidence in a civil trial unless the party it will be used against was informed the conversation would be recorded and may be used as evidence in court.

Wyoming law (Wyo. Stat. §7-3-702(b)(iv)) says it is legal for one member of the conversation to record or when one party gives consent.

Audio Surveillance State-by-State Laws: All Parties Consent Statutes

In the following states, recording cannot be legally done without the consent of every member of the conversation. 

States that have this law are:

• California
• Florida
• Illinois
• Maryland
• Massachusetts
• Montana
• New Hampshire
• Pennsylvania
• Washington

Audio Surveillance Cameras on Public Buses

The question of permitting audio recording with cameras on public buses came about in 2009. The Maryland Transit Authority asked the state attorney general about the issue, and it quickly became public. Efforts were made to stop it, and although cameras have been permitted for several years, no audio recording has been done. Some say that it is needed for safety purposes, but it has yet to be seen how it could actually increase safety.

So far, the state’s attorney has directed the company to not turn the audio recording devices on.

If you need help understanding the laws concerning audio surveillance laws by state, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers from UpCounsel come from schools such as Harvard Law and Yale Law, and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.

Common Exceptions to Surveillance Laws

While recordings are impermissible in several spaces, there are several exceptions to the general rule.  Recordings are permitted under the following circumstances: 

Technological Advancements and Surveillance

As technology advances, the definition of surveillance expands. This expanding definition makes it far more accessible than ever to violate surveillance laws and other Constitutional protections. For instance, facial recognition technology has dramatically raised concerns about privacy violations and ethical issues.  

Such technology has gone beyond merely unlocking your smartphone; police use it to identify suspects and make predictive arrests. With this technology, a computer can find a suspect guilty rather than a judge and jury. Consequently, the ACLU has initiated battles against law enforcement agencies utilizing facial recognition tools. 

More sophisticated laws must be implemented to protect individuals' First and Fourth Amendment rights to keep up with technological advancement. 

Legal Consequences of Violating Surveillance Laws

Violating surveillance laws comes with a range of consequences, from fines and penalties to even jail time. For example, in Maryland, if an individual is found guilty of illegal camera surveillance can face a maximum penalty of one year in jail and a fine of $2,500.  

In Alabama, however, if you unlawfully record a conversation, you could face a penalty of one year in jail and a $6,000 fine. In the same state, if you are found guilty of installing an eavesdropping device on private property, you could face a prison sentence between one and 10 years and a potential fine of up to $15,000.

Because the penalties for violating surveillance laws are stiff, it is important to stay abreast of your jurisdictional surveillance rules.

Practical Applications of Surveillance Laws

Surveillance laws apply to government agents monitoring criminal suspects and extend to business owners and employers who monitor people in public and private spaces. 

For instance,  Airbnb hosts have historically been allowed to set up cameras to monitor public spaces of their homes. However, the company itself has strictly prohibited any surveillance of guests within the home. 

Like Airbnb guests, employees are also subject to the surveillance of the business they work for. In the age of remote work, employers often monitor things like actions, screen usage, and software usage to study work routines, which safeguard company resources and optimize productivity. However, these methods also raise privacy concerns. Workers might perceive it as an intrusion into their space, which could result in dilemmas and legal issues for employers. Hence, businesses need to adhere to their jurisdictional surveillance laws.

Notable Case Studies and Examples in Surveillance Law

A notable court case regarding workplace surveillance is Hernandez v. Hillsides, Inc., in which the Court found that video recordings are allowed if the employer demonstrates a legitimate business reason. In this case, the employer wanted to ensure employees were not watching X-rated material on company-provided devices during working hours.

Another notable surveillance case is Katz v. United States. This case established the term reasonable expectation of privacy. The Court found that the reasonable expectation of privacy under the Fourth Amendment extends to places and people. In this case, Katz was found guilty of engaging in gambling after authorities used a listening device positioned near a telephone booth to gather evidence. The Court found it reasonable for Katz to expect privacy within a phone booth despite its location, as he intended to have a confidential conversation.

Concluding Insights on State-by-State Surveillance Laws

The laws that surround surveillance are vast, and the jurisdictional nuances are significant. As such, whether you are a business owner, government agent, or private citizen, it is crucial to understand state-specific audio and video surveillance laws to ensure compliance and avoid legal issues when recording someone. If you are found to have violated any of these laws, you could face both civil and criminal penalties. 

Frequently Asked Questions

Can Employers Record Audio In Their Workplace?

Employers are allowed to record audio in the workplace. However, they must have explicit consent policies before doing so.

Is It Illegal to Record Someone in Your Own Home?

While there is some jurisdictional variance, recording someone in your home without their consent is generally illegal.

Is It Legal to Record Audio on Security Cameras?

It is generally legal to record audio on security cameras; however, before doing so, you must obtain the consent of the party that you are recording.