We are living in a digital age where almost everyone has access to a digital device they can use to record interesting things that happen around them. But before you take out that smartphone to record someone, you need to pause and think about the potential consequences of your action.
What is the cost of your action? Is it legal to record someone without their permission? What does the law say about such actions?
So, if you are asking yourself whether you can sue someone for recording you without permission, read on to find out everything you need to know.
An Overview of Federal and State Recording Laws
The federal system and all states in the country have their own laws governing the legality of telephonic, oral, and other communications recordings.
Therefore, if someone is taping or recording your conversation, he/she is governed by the laws of the state in which the recording happened unless the federal law is more protective of your privacy.
The Federal Wiretap Act
The primary objective of the federal wiretapping law is to protect the privacy of individuals when they are in communication with other parties.
In this context, the term “wiretap” means much more than listening to someone else’s phone conversations. The Act makes it illegal to intentionally intercept, transmit, share, or use the contents of any electronic or oral communication using a digital device.
Violators of the Act risk facing both criminal and civil charges. However, there are two exceptions to federal laws on recording conversations that you need to know:
1.1.1 The Provider Exception
Mobile phone and telephone phone service providers are allowed to monitor and listen in to your phone conversations as long as they have a valid court order granting them such permission. They can also do so when they want to provide you with a service or inspect the performance of their equipment.
These companies can also listen in to your communication if they need to protect their rights or property. For instance, if someone is using their services without paying for it, then they can wiretap the suspect’s communication.
1.1.2 The Law Enforcement Exception
If someone is suspected to be engaging in criminal activities, law enforcement agencies have the right to intercept the suspect’s communication to gather evidence. However, some states’ phone recording laws require all parties in such communication to consent to the interception.
Consent to Recording
The Wiretap Act and most state laws governing phone recordings allow covet taping, whereby one party in the conversation consents to the recording.
In this case, the consent can be made implicitly or explicitly.
Implicit consent means that one part in the conversation openly records the other party. It can also happen when a consumer dials a customer service number even after receiving the obligatory, “this conversation will be recorded for quality assurance purposes” message.
An excellent example of explicit consent is when a news reporter’s source agrees to speak “on record” for a given news story.
Is It Illegal to Record Someone Through a Video?
Keep in mind that the Wiretap Act doesn’t apply to photo or video capture. In most cases, video recording and photo capturing laws are situational and will vary from state to state.
But generally, it is not illegal to video record someone in public as long as the individual doesn’t enjoy a “reasonable expectation of privacy.”
The law only protects individuals with a “reasonable expectation of privacy.”
Again, whether the conversation was private or not largely depends on the context. Where did the conversation take place? Was it in public or private? Was there consent or not?
For instance, let us assume that you were at a party with a group of friends, and you start bragging how you killed your girlfriend and hid her body in a secret place. If someone records you, the conversation would be admissible as evidence in any court if the state pressed murder charges against you.
Generally, federal laws prohibit photographing or video recording someone who is naked or engaging in sexual activity as long as everything is happening in a secluded area where he/she enjoys a” reasonable expectation of privacy.”
What Are the Penalties for Recording Someone Without Their Permission?
Violating federal and state laws on recording has serious consequences. If found guilty of committing such a crime, you could be ordered to pay damages to the victim or spend time in jail.
Typically, if someone recorded you without your consent when you were expecting some form of privacy, then it is considered an infringement on your rights, and you can file a civil lawsuit against them. If you win the case, you might receive a handsome payout in damages.
Also, each state in the country imposes some criminal liability on any person who violates the secret recording law. The penalties for criminal liability range from a misdemeanor conviction to a jail term.
The Bottom Line
You can sue someone if he/she uses any digital device to record you in circumstances where you have a “reasonable expectation of privacy.” You can also sue someone if he /she records you in a conversation that you perceived to be private without your consent.
If you feel someone has infringed your right to privacy, be sure to report them to law enforcement agencies and file a civil lawsuit against them so they can assume liability.