Highlights from the Legal Guide: Liability for the Use of Recording Devices

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This is the seventh in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on Recording Phone Calls, Conversations, Meetings and Hearings, which discusses federal and state laws relating to the use of recording equipment in specific private and semi-public settings. We also provide some practical tips for using recording devices, which should help you steer clear of legal trouble.

Using a recording device, such as a microphone, video recorder, or camera, is often a helpful way to capture and preserve information about conversations, interviews, and phone calls in which you participate. It is also a good way to document what takes place in a court hearing or public meeting, whether for personal reference or later broadcast over the Internet.

Where you do your recording, and what you record, will largely dictate what legal limitations apply to your recording activities. It may also be the case (in fact, it is quite likely) that more than one set of laws or limitations might apply to your use of recording equipment. Before concluding that your activities are in the clear, you should read all of the sections listed below that might apply, as well as the section on Gathering Private Information elsewhere in this guide.

If you plan to record the conversations of others, whether they occur in person or over the telephone, you should review the section on Recording Phone Calls and Conversations. This section discusses federal and state wiretapping statutes that make it a crime to record telephone calls and private conversations in many circumstances. Keep in mind that conduct that could lead to criminal and civil liability under federal and state wiretapping statutes could also lead to possible liability for intrusion. Please refer to the state-specific sections of this guide to get a more in-depth overview of the wiretapping laws in the fifteen most populous U.S. states and the District of Columbia.

If you plan to use a recording device at a public meeting or court hearing, you should review the section on Recording Public Meetings and Court Hearings, which looks at the laws affecting your ability to make sound and video recordings and to take photographs in these quasi-public settings. Because laws vary greatly state-by-state, be sure to consult the state-specific sections of this guide for detailed information on the laws regarding use of recording devices at court hearings and public meetings. For more information on your general right to be present at court hearings and public meetings, please see the Access to Government Information section of this guide (forthcoming).

If you plan to take photographs, video, or audio of people engaged in private activities in places where they reasonably expect to be private, you should also read the section on Gathering Private Information in this guide. Various privacy laws could subject you to liability in this context, so you should proceed with caution if you will be recording private activities.

Once you've reviewed the other sections and are prepared to proceed, you should carefully review the section on Practical Tips for Recording Phone Calls, Conversations, Meetings, and Hearings. This section provides some practical guidelines for using recording devices, which should help you steer clear of legal trouble.

Browse any of the sections below to get started:

A number of laws affect your ability to use recording devices in various contexts. Here are some practical tips to help you avoid legal trouble when recording conversations, phone calls, meetings, and hearings.

Practical Tips for Recording Phone Calls and Conversations

  • Check the law of your state before you record a phone call or conversation. Recording phone calls and conversations without consent may expose you to criminal and civil liability, so you will want to be aware of what is permissible before taking action. When you do your research, pay attention to your state's consent requirement -- i.e., whether one party's consent is sufficient to make recording lawful, or whether you need to get all parties' consent. For state-specific information for the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recording section in this guide. For states not yet covered in this guide, see The Reporters Committee for Freedom of the Press' Can We Tape?

  • Play if safe and get consent to record from all the parties. In many states, the consent of one party is sufficient to make recording lawful. But the legal situation becomes more uncertain when parties to a phone call are located in different states. To avoid legal problems, it is best to get consent from all parties to this kind of multi-state conversation before recording. Even when all parties to a conversation are in the same place, it cannot hurt (and it may help) to get consent from everyone.

  • Get consent on tape. The best way to document that you have obtained consent is to record the consent along with the phone call or conversation. As a practical matter, this will require (1) notifying the person you intend to record of your intent to record; (2) getting consent off-the-record; (3) starting the recording; and then (4) asking the person to confirm on-the-record that he or she consents to the recording.

  • Don't be secretive. In some states, you can violate the law by recording secretly, even in a public place. Whenever possible, make it clear to those around you that you are recording. Don't hide your camera or tape recorder. Being upfront puts people on notice that they are being recorded, affords them an opportunity to object, and undercuts any argument that you are acting secretly.

Practical Tips for Recording Public Meetings and Court Hearings

  • Check the law of your state before you show up. State law varies greatly, especially when it comes to recording in the courtroom. Looking into the law ahead of time can help you understand what's possible and alert you to requirements you need to meet ahead of time. For state-specific information for the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recording section in this guide. For states not yet covered in this guide, see The Reporters Committee for Freedom of the Press' Open Government Guide (for public meetings) and the Radio-Television News Directors Association's Cameras in the Court: A State-By-State Guide (for court hearings).

  • Notify the clerk of the court or the governmental body holding the meeting well ahead of time that you plan to record. Many state laws require that you request permission in advance in order to record in a courtroom. This requirement is less common with respect to public meetings, but it may still be useful to advise the governmental body in question that you plan to record. In both cases, you get the opportunity to ask questions and find out more about any restrictions that may apply.

  • Don't be secretive. In some states, you can violate the law by recording secretly, even in a public place like a meeting or courtroom. Whenever possible, make it clear to those around you that you are recording. Don't hide your camera or tape recorder. Being upfront puts people on notice that they are being recorded, affords them an opportunity to object, and undercuts any argument that you are acting secretly.

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