Is It Illegal to Video Record Someone Without Their Consent?

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Is It Illegal to Video Record Someone Without Their Consent?
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Is It Illegal to Video Record Someone Without Their Consent?

Emily Long
September 26, 2020

Going out in public essentially almost guarantees that we’re recorded without our consent. There are security cameras at malls, office buildings and stadiums. There are tourists on the sidewalk taking panoramic videos of the sights as we walk by. We may be captured on film by news crews, vloggers or parents recording their kid’s birthday celebration in the park.

But is this allowed, even by accident, if we don’t consent?

In general, it is permissible to record a video of someone without consent if you’re in a public space, such as walking through a park, attending a sporting event or riding the subway.

“You have no expectation of privacy in anything you do on public property, like the sidewalk, so it’s likely fine if someone records you assuming it’s not crossing the line into stalking or harassment,” said Ruth Carter, a Phoenix-based internet attorney.

However, you cannot secretly film someone where they do have a reasonable expectation of privacy, such as in a dressing room, locker room or a private bedroom.

The rules are a little bit different when it comes to audio, such as recording a phone conversation or even two strangers talking nearby, and those rules depend on where you live. In states with one-party consent, you can record conversations without others’ knowledge as long as you are a participant. In all-party consent states, everyone must agree to be recorded. However, even these guidelines may apply differently to electronic or phone communication versus conversations held in person (more on that below).

Is it illegal to record someone without their knowledge?

It is not necessarily illegal to record someone without their knowledge. If a person is in a public space where there’s no reasonable expectation of privacy, it is legal to take a photo or video—including a video with audio as long as the subjects are in a public place where they could reasonably be overheard, Carter said. To secretly film or photograph someone in a private setting, such as in the bathroom, is illegal.

One specific scenario where you have a right to record is when law enforcement officers are performing official duties, such as making an arrest, on public property—even if they ask you to stop.

According to the ACLU, police officers cannot demand to see recordings or photos, take your phone or camera, or require you to delete videos and images without a warrant. However, you may get in trouble if you’re impeding law enforcement activity, and that may be interpreted loosely by different jurisdictions.

Even where recording isn’t illegal at the state or federal level, it may be prohibited by private businesses on their own properties. Take Airbnb, for example. Under Airbnb’s rules, short-term rental hosts are allowed to place recording devices (security cameras and baby monitors, for example) on their properties, but they must disclose this to their guests ahead of time in the property listing, even if the devices are not hooked up. Again, recording is prohibited in private areas, such as bedrooms and bathrooms.

FAQs on recording someone without permission

In what states can you record someone without their knowledge?

In general, you can take a photo or video of someone without their knowledge in public spaces, where there’s no reasonable expectation of privacy. Where states differ are the rules about audio recordings, including an electronic, phone, or in-person conversations.

Federal law requires only one-party consent, meaning that as long as you’re part of the conversation, you can make audio recordings without telling any other participants. There are 36 states (including the District of Columbia) that follow the one-party consent rule:

  • Alabama
  • Alaska
  • Arizona
  • Arkansas
  • Colorado
  • District of Columbia
  • Georgia
  • Hawaii
  • Idaho
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Louisiana
  • Maine
  • Minnesota
  • Mississippi
  • Missouri
  • Nebraska
  • New Jersey
  • New Mexico
  • New York
  • North Carolina
  • North Dakota
  • Ohio
  • Oklahoma
  • Rhode Island
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • Utah
  • Virginia
  • West Virginia
  • Wisconsin
  • Wyoming

Eleven states require more than one-party consent, meaning everyone in the conversation has to agree to be recorded. However, the specifics, such as whether consent has to be explicitly stated, can vary. These states require some type of all-party consent:

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

Connecticut, Michigan, and Oregon have a mix of one-party and all-party consent depending on the situation, while Vermont has no clear laws on this issue.

Where phone conversations get tricky is with participants in multiple states. In general, you’d follow the rules laid out by the state where the physical recording is made, though some states would use the law where the person being recorded lives instead.

For example, if a participant in a one-party state secretly records someone living in an all-party state, the latter participant may take legal action in the one-party state. But as Carter explains, the outcome could vary depending on state and case law.

Of course, there is still some nuance depending on the situation. Indiana, for example, requires one-party consent for phone or electronic conversations, but the law does not cover recording audio in person.

“These situations have to be evaluated on a case-by-case basis,” Carter said. “There are rarely easy answers.”

While recording a child under the age of 18—especially if you don’t know them—in public may be creepy, it may also be legal. Taking a photo or video that includes a minor on the sidewalk, on the subway, or at a public playground where there’s no reasonable expectation of privacy is generally permissible. However, filming a minor through a fence in their backyard is a violation of privacy. State and local laws may also set narrower guidelines for recording children under 18 in public.

There may be either stricter rules or more flexibility on school grounds or at camps or other programs that take place on private property. For example, schools may allow professional photographers to film sporting events without explicit individual consent from kids or parents, while spectators may record performances or matches on their smartphones without penalty.

Carter explains that in some cases, participating in or attending an event, even on private property, may imply consent. Purchasing a ticket or signing up for a sports league may essentially be a contract where you agree to be filmed or photographed.

And just as with adults, the law varies by state and recording type. In Georgia, it is illegal to record a phone or electronic conversation with a minor under 18 without consent from a parent.

The legality of recording children also depends on what you do with the photo or video. Predatory use or publishing sexually explicit material may violate child pornography laws.

What happens if you record someone without them knowing?

The consequences for recording someone without their knowledge range from nothing at all to possible felony charges. If you take a photo or video without someone’s knowledge in public where there’s no reasonable expectation of privacy, you could face some frustration if they find out, but you probably won’t land in any legal trouble.

However, recording a conversation you’re not part of (meaning you don’t qualify under one-party consent) or recording a conversation without other participants’ knowledge in an all-party consent state, is a misdemeanor in some states and a felony in others. Penalties include fines, imprisonment, and civil damages.

“The potential consequences will be based on the applicable laws and what rights of the person have been violated,” Carter said.

The bottom line

Whether you’re the potential subject of a recording or taking a recording yourself, keep in mind that things said or done out in public are, well, public. Even if there is a law in place that said otherwise, you cannot expect something you do in plain view, including online, to be private, Carter said.

“Don’t put anything online that you wouldn’t put on the front page of the newspaper, and assume that everything you do in public or post online will be seen by four people: your best friend, your worst enemy, your boss and your mother,” she adds.

So watch your words and actions in public, tread carefully when taking audio and video, and when in doubt, get consent before recording.

Disclaimer: The above is solely intended for informational purposes and in no way constitutes legal advice or specific recommendations.