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Is It Illegal To Video Record Someone Without Their Consent?

Is It Illegal To Video Record Someone Without Their Consent

Is it illegal to video record someone without their consent? This question goes through the minds of so many people. It is tempting to secretly record video of your harassing boss or when your ex launches a verbal attack against you. 

It is worthwhile to have incontrovertible evidence but you also need to look at the cost. It all depends on your physical location during the video recording. It is good to answer the question: is it illegal to video record someone without their consent before you do anything. 

Is It Illegal To Video Record Someone Without Their Consent? State And Federal Recording Laws

Can you record in public? It is the common question people ask me every time. The States and the U.S. all have independent laws that govern the legality of surreptitiously recording various communications like telephonic and oral.

Various state laws govern the secret taping of conversations depending on where you are making the recording. You also have to confirm how the federal law protects the element of privacy. 

The Federal Wiretap Act

As a response to the outcry of the public regarding the covert recording of the political activist group’s activities by the government, Congress decided to enact the famous Wiretap Act. It came in as part of the Safe Streets Act and Omnibus Crime Control Act of 1968

Illegal Recording According To The Wiretap Act

The federal Wiretap Act states that it is illegal for an individual to record an electronic, telephonic, and oral communication secretly when the other party of the conversation expects it to be reasonably private.  

Exceptions

This law has two main exemptions that can gut it of effect. The video recording will not violet the Wiretap Act when: 

  • The other party to the communication 
  • The individual recording secretly is permitted by the law to do so. 

Therefore, it is legal to record a conversation if you are part of that conversation hence consents to the video recording. However, this tends to create a very big loophole in real-life situations. 

The History Of The Government In Citizen Surveillance Is Not A New Thing 

History Of The Government In Citizen

The FBI, in 1956 launched the Counter-Intelligence Program (COINTELPRO) to monitor and infiltrate Martin Luther King Jr., the progressive political activist groups, civil rights groups, the Weather Underground, the Black Panthers and entailed secretly tape recording telephone calls, meetings, and conversations.  

The 2013 revelation that the U.S. government was intercepting and analyzing email and telephone conversations of tens and millions of its citizens was received with a lot of shocks. This appalled both the public and media figures. The government enacted new laws after the 9/11 attacks to widen the espionage activities of several government agencies. 

Reasonable Privacy Expectation

The Wiretap Act and also every state law that governs secret video recording of conversations only protect the recordings where the people who are being video recorded reasonably expect to remain private. 

The context determines whether the individual has a reasonable privacy expectation under certain circumstances. Did the conversation take place in a private or public location? Did the person who was being recorded treat the subject of the conversation as private? 

If a person brags at a party on how he cheated on a partner in a business deal, he cannot object to introducing a recording of the admissions as evidence if his friend uses them in a lawsuit. It is crucial to understand this as you look at the whole idea of is it illegal to video record someone without his consent.  

Recording Consent

Most state laws that govern secret recording and the federal Wiretap Act allow covert taping in which one or more parties consent. Like earlier noted, you can implicitly make the consent when one of the parties to the conversation records the other. 

It also takes place when consumers stay on the helpline after getting the obligatory message that the conversation could be recorded for purposes of quality assurance. The consent can also be explicit when the source of a reporter agrees to speak out on the record for the news story. 

Preemption Of The Less Protective State Laws

If any law is less protective than the federal Wiretap Act, it preempts it. Thus, if a law allows secret recording of conversations without the consent of any of the parties it will be void and the federal law will preempt it. 

No Preemption Of State The Laws That Are More Protective 

The protection that some state laws give to citizens is higher than what you get in the Wiretap Act. In such a case, the federal law does not preempt them and hence their provisions have to be enforced. To get to understand is illegal to record someone without their knowledge; get to know what the state laws say vs. the federal ones. 

12 states don’t allow any individual to record a conversation unless all the parties in the communication consent. Therefore, any surreptitious record video is illegal unless you are a law enforcement official and have warrants to make the video recordings. 

States that have these laws include Washington, Massachusetts, Pennsylvania, Maryland, New Hampshire, Illinois, Nevada, Florida, Montana, Connecticut, Michigan, and California. Be keen on these stipulations if you want to know if it is illegal to video record someone without their consent in the above states. 

Penalties

People ask most of the time: is illegal to video record someone without their consent? Yes, it is. In fact, if you violate the federal or state recording laws, you can face jail time, fines, or a court order to pay for the damages in the civil lawsuit. 

Criminal Penalties

Criminal Penalties

If you violate the federal Wiretap Act, you can face a possible sentence that may see you go for five-year imprisonment, 500 dollars fine, or even both of them. 

If you violate the state law that prohibits secret video recording of communications, the penalty that you get is prescribed by the given state law. All states impose some form of criminal penalties for anyone who violates the secret recording laws. 

For instance, if you violate this law in California, you can face possible imprisonment of one year, a misdemeanor conviction, or a fine of $2500. 

Civil Penalties

If it is illegal to tape someone without consent in your state, the victim can sue you for the recording. Anyone who wins this type of civil case will get damages. 

Conclusion

With this article, you have a clear understanding of: is it illegal to video record someone without their consent. Secret video recordings carry a high level of risk and their consequences vary from one state to another. 

A criminal defense lawyer will advise you on the requirements of this law for your state. The attorney will also tell you the possible penalties for violating the law. If you are thinking of secretly recording a conversation, don’t worry.

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Sofia
Sofia Kelly is a passionate blogger. She loves to share her thoughts, ideas and experiences with the world through blogging.

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