The Right to Record

In this age of citizen activism, recording devices, such as cellphones, tabs and digital video/audio recorders are essential tools for collecting evidence and preserving 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 news or social media networks. A number of laws affect your ability to use a recording device in these contexts. Here are some practical tips to help you avoid legal trouble when recording conversations, phone calls, public hearings, and protests. 

From a legal standpoint, the most important question in the recording context is whether you must get consent from one or all of the parties involved in a conversation or activity before recording it. Federal law and many state wiretapping statutes permit recording if one party (which includes you) to the phone call or conversation consents. Other states require that all parties to the communication consent.

Consent Requirements

Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a “one-party consent” law. Under a one-party consent law, you can record a phone call if you are a party to the conversation or gain the informed consent of at least of the parties involved in the communication. Furthermore, if the conversation occurs in public, consent to record is generally not required.

However, legal problems can arise when you enter onto private property without permission or intrude upon another person’s expectation of privacy. In addition, federal law explicitly prohibits obtaining recordings for a criminal or tortious purpose. For example, recording a conversation or activity for purposes of extortion or blackmail is a federal crime.

New Jersey’s wiretapping state requires “one-party consent”  to record private conversations. This means in New Jersey, you may record a conversation or phone call if you are a party to the conversation or have gained permission from one of the parties to the conversation in advance. However, it is a criminal offense under Federal and New Jersey law to intercept or record an in-person or telephone conversation if you are not a party to the conversation and have not obtained the consent of at least one participant. N.J.S.A. 2A:156A-3; N.J.S.A. 2A:156A-4. In addition to criminal prosecution, violation of the New Jersey wiretapping statutes can expose you to a civil damages claim by an injured party.

In contrast, Pennsylvania’s wiretapping law is a “two-party consent” law. Pennsylvania makes it a crime to intercept or record a telephone call or conversation unless all parties to the conversation consent. See 18 Pa. Cons. Stat. § 5703.

The law does not cover oral communications when the speakers do not have an “expectation that such communication is not subject to interception under circumstances justifying such expectation.” See 18 Pa. Cons. Stat. § 5702 . Therefore, you may be able to record in-person conversations occurring in a public place without consent. However, you should always get the consent of all parties before recording any conversation that common sense tells you is private.

In addition to criminal prosecution, violation of the Pennsylvania wiretapping law can expose you to a civil liability to  the injured party.

Problems arise when you and the other party being recording are in different states with conflicting statutes. If you are in a one party consent state yet record a phone call with participants in a two party consent state, you expose yourself liability if the other parties to the conversation are not aware they are being recorded. In this scenario, best practices dictate that you play it safe and get the consent of all parties involved in the conversation. However, when you and the person you are recording are both located in the same state, then you can rely with greater certainty on the law of that state. In New Jersey, this means that you can record if you are a member to the conversation or gain the consent of one of the parties being recorded. In Pennsylvania, you will need to get everyone’s consent.

Recording Police Officers and Public Officials

First Amendment protections are triggered when you openly record the activities of police officers (or other public officials) carrying out their duties in public places. A number of U.S. Courts of Appeals have held that, in such circumstances, the First Amendment protects the right to record audio and video regardless of whether the police officers or public officials consent. This constitutional right would override any state or federal laws that would otherwise prohibit such recording.

Police should not order you to stop taking pictures or video. Under no circumstances should they demand that you delete your photographs or video. Currently, the following U.S. Courts of Appeals have recognized the First Amendment right to record the police and/or other public officials:

  • First Circuit (with jurisdiction over  Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island): see Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (“[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) (police lacked authority to prohibit citizen from recording commissioners in town hall “because [the citizen’s] activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights[.]”).
  • Seventh Circuit (with jurisdiction over Illinois, Indiana, and Wisconsin): see ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”).
  • Ninth Circuit (with jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington): see Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th Cir. 1995) (assuming a First Amendment right to record the police); see also Adkins v. Limtiaco,  _ Fed. App’x _, No. 11-17543, 2013 WL 4046720 (9th Cir. Aug. 12, 2013) (recognizing First Amendment right to photograph police, citing Fordyce).
  • Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia): see Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”).

The Appellate Division of the Superior Court of New Jersey likewise recognized the existence of such a right in Ramos v. Flowers, Docket No. A-4910-10T3 (N.J. App. Div. Sept. 21, 2012), relying heavily on the First Circuit’s reasoning in the Glik case.

If you are recording in New Jersey  or in one of the states or territories within the First, Seventh, Ninth or Eleventh Circuits, the First Amendment right to record should protect you against prosecution for recording the police or other public officials as they carry out their duties in public places.

Although two other U.S. Courts of Appeals have declined to hold that a First Amendment right to record was “clearly established” as of particular dates in the past, see Kelly v. Borough of Carlisle, 622 F.3d 248, 261-62 (3rd Cir. 2010); Szymecki v. Houck, 353 Fed. App’x 852, 852 (4th Cir. 2009) (per curiam), none so far have rejected the existence of such a right.  Furthermore, the United States Department of Justice has openly stated its position that the First Amendment protects all U.S. citizens who record the activities of the police in public, and has intervened in at least one civil rights lawsuit against police officers to support that First Amendment right. See Sharp v. Baltimore City Police Dep’t, No. 1:11-cv-02888-BEL (D. Md. Statement of Interest filed January 10, 2012).

NOTE: The First Amendment does NOT give you the right to interfere in the performance of an officials’ duties, or violate generally applicable laws. You may still face criminal prosecution or civil liability if, while recording, you: interfere with an arrest; trespass into secure government areas or private property; fail to respond to legitimate measures by law enforcement to control riots or disturbances; or otherwise interfere with official activity or violate private rights. Police officers may order citizens to cease activities that are truly interfering with legitimate law enforcement operations. In general, a court will trust an officer’s judgment about what is “interfering” more than yours. So if an officer orders you to stand back, do so.

Recording Public Meetings

New Jersey law allows sound and video recording devices in public meetings (i.e., meetings of a governmental body required to be open to the public by law), subject to reasonable restrictions, such as advance notice, that generally track those imposed in state courtrooms (above). For information on your right of access to public meetings in New Jersey, please consult the Digital Media Law Project’s Access to Government Information section and the Reporters Committee for Freedom of the Press’s Open Government Guide: New Jersey.

In Pennsylvania, recording devices are allowed in public meetings (i.e., meetings of a governmental body required to be open to the public by law). Governmental bodies may adopt their own rules to maintain order at their meetings, but those rules may not include flat prohibitions on recording. For information on your right of access to public meetings in Pennsylvania, please consult the Digital Media Law Project’s Access to Government Information section and the Reporters Committee for Freedom of the Press’s Open Government Guide: Pennsylvania.

Recording Court Hearings

New Jersey law places restrictions on your ability to make sound and video recordings in state courtrooms. First, the New Jersey Supreme Court guidelines permit audio and video recording for future broadcast only by those with “bona fide press credentials” issued by the New Jersey Press Association or those with identification from a “bona fide media outlet,” defined as an “organization that reports the news and whose news reports are made available to the general public by being published or broadcast on a regular schedule by television, radio, retail sales, or by subscription where there is no membership or dues requirement to subscribe.” This could present a substantial obstacle for amateur and other non-traditional journalists and online publishers. Second, you must make a request for permission a reasonable time in advance, and the court may limit media coverage where it has the potential to harm parties or witnesses. You may, however, appeal any denial of coverage to a state appellate court (if coverage was denied by a district court) or to the State Supreme Court (if coverage was denied by an appellate court).

Recording devices are prohibited in certain particularly sensitive types of proceedings, such as those involving juveniles. In addition, the court may place restrictions on the number of cameras allowed into a courtroom at a particular time. For more detailed information, please consult the Supreme Court Guidelines for Still and Television Camera and Audio Coverage of Proceedings in The Courts of New Jersey.

Federal courts in New Jersey, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

Pennsylvania state courts generally prohibit the use of recording devices in the courtroom, both at the trial and appellate court level. However, individual judges may authorize recordings of non-jury civil trials, if both parties to the lawsuit consent. In that case, individual witnesses may object to recording and be excluded from coverage. Local courts may also establish additional rules.

Federal courts in Pennsylvania, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

For more information on your right of access to court proceedings, please consult the Access to Government Information guide prepared by the Digital Media Law Project.

Recording in Public Places

Generally speaking, it is legal to photograph or capture video of people in public places, even if they have not consented to being recorded, because individuals cannot have a reasonable expectation of privacy when in public. Nor will you be liable for intrusion if you gather private information from documents that are available to the general public.

When in outdoor public spaces where you are legally present, you have the right to capture any image that is in plain view (see note below about sound recording). That includes pictures and videos of federal buildings, transportation facilities (including airports), and police officers.

Police officers may not generally confiscate or demand to view your photographs or video or search the contents your cell phone without a warrant. Riley v. California, 573 U.S. ___ (2014). However, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves.

You have a right to capture images in public places, but you don’t always have a right to record what people say. New Jersey’s Wiretap Statute makes it illegal to record private conversations – which can include conversations in public places – without the consent of at least one party to the conversation. Pennsylvania’s Wiretap Statute makes it illegal to record private conversations without the consent of all parties to the conversation. Conversations with police in the course of their duties are not private conversations, but many other things you may record on a public street are.

You have the right to videotape and audiotape police officers performing official duties in public. It is not a violation of the New Jersey or Pennsylvania Wiretap Law to do so. That means you can record an officer during a traffic stop, during an interrogation, or while he or she is making an arrest. You can also record people protesting or giving speeches in public.

  • If stopped for photography, ask if you are free to go. If the officer says no, then you are being detained, something an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.
  • If you are detained, politely state that you believe you have the right to take pictures or video and that you do not consent to the officer looking through or deleting anything on your camera. But if the officer reaches for your camera or phone, do not resist. Simply repeat that you do not consent to any search or seizure. You don’t want to invite a charge for “resisting arrest.”

Recording in Private Places

When you are on private property, the property owner sets the rules about the taking of photographs or videos. If you disobey property owners’ rules, they can order you off their property (and have you arrested for trespassing if you do not comply).

If you physically enter a private area, photograph or take video of people engaged in private activities in places where they reasonably expect to be private, or in some other other way intrude into a person’s privacy (by, for example, opening the person’s mail), you could be liable for a violation of what is called “intrusion upon seclusion.” If you collect certain personal data, this can also intrude into a person’s private affairs. In the newsgathering context, the actual collection of the data could be seen as intrusion.

An intrusion on seclusion claim is a special form of invasion of privacy. It applies when someone intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another. Under New Jersey common law, ‘‘[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.’’ Stengart v. Loving Care Agency, Inc., 990 A.2d 650, 660 (N.J. 2010) (citing Restatement (Second) of Torts § 652B (1977)).

To state a valid claim in New Jersey, a plaintiff must establish that the intrusion ‘‘would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object.’’ Id. Consistent with Fourth Amendment jurisprudence, the reasonableness of a claim for intrusion on seclusion has both a subjective and objective component. See State v. Sloane, 193 N.J. 423, 434, 939 A.2d 796 (2008) (analyzing Fourth Amendment); In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (Bankr.S.D.N.Y.2005) (analyzing common law tort).

Corporations, partnerships, and unincorporated associations have no right of privacy under New Jersey law and therefore cannot assert a claim for intrusion upon seclusion. Whether an employee has a reasonable expectation of privacy in their particular work setting ‘‘must be addressed on a case-by-case basis.’’ O’Connor v. Ortega, 480 U.S. 709 (1987) (plurality opinion) (reviewing public sector employment).

With respect to the first element of an intrusion claim — intentional invasion into the private affairs of another — courts generally require that the intrusion take the form of a “physical trespass.” This can be met literally, by physically entering onto private property, or by an electronic or optical intrusion, such as using zoom lenses or highly sensitive microphones to photograph or record a person who has a reasonable expectation of privacy. A court would consider this a “physical trespass” if your use of ultra-powerful or highly sensitive equipment was the only way you were able to obtain your information or recording.

The second element requires that the actions giving rise to a claim must be offensive to a reasonable person. To state a valid claim in New Jersey, a plaintiff must establish that the intrusion ‘‘would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object.’’ Stengart, 990 A.2d at 660. This requires more than mere discomfort or embarrassment. For example, barging in on someone in the bathroom and photographing them using the facilities would be offensive to a reasonable person while taking a picture of them standing at the mirror combing their hair likely would not be offensive.

The third element requires that the intrusion involve a private matter. Generally speaking, if you’ve intruded into someone’s seclusion in a place they expect privacy (e.g., a bathroom or their bedroom) or while they are engaged in an activity that most reasonable people would expect to be private (e.g., intimate contact with another) this element will be met.

The fourth element requires that the intrusion must have resulted in mental anguish or suffering for the person whose privacy was invaded. This suffering can come from surprise, fright, or even anger at having been disturbed. In the case of surreptitious invasions, it can also come from the plaintiff finding out, after the fact, that his or her privacy has been invaded. The degree of anguish or suffering the plaintiff experiences will determine the amount of damages he or she is entitled to if the other elements of an intrusion claim are established.

Intrusion law in Pennsylvania does not differ significantly from the elements of a claim in New Jersey. See Harris v. Easton Pub. Co., 483 A.2d 1377 (Pa. Super. Ct. 1984).

However, persistent “hounding, harassment and unreasonable surveillance” may constitute intrusion in certain circumstances, even if conducted in a public or semi-public place. See Wolfson v. Lewis, 924 F.Supp. 1413 (E.D. Pa. 1996).

You should also be aware that Pennsylvania also has criminal anti-harassment law, see 18 PA C.S.A. 2709, and an anti-stalking law, see 18 PA C.S.A. 2709.1. Under these laws, following a person under circumstances demonstrating an intent to cause substantial emotional distress could result in criminal liability.

The statute of limitations for intrusion claims in New Jersey is two (2) years. See N.J. Stat. Ann. 2A:14-2. The statute of limitations for intrusion claims in Pennsylvania is one (1) year. See 42 PA C.S.A 5523(1).

Keep in mind that consent is typically one of your strongest defenses to an intrusion claim. Consent can often be gained expressly, by someone specifically telling you that you can photograph or collect private information about them (which you should get in writing), but can also be implied. If a person fails to object to your presence after you identify yourself as a member of the media (or publisher of a blog, etc.), courts will generally consider this to be implied consent to your use of recording and photography equipment. If consent is required, however, you must obtain it from someone who is legally able to give it. Permission from a child or mentally handicapped person is unlikely to be valid; in those situations, you should seek consent from the appropriate parent or guardian.

You should know that it is not necessary that you publish the photographs or information you gathered; an intrusion claim rests solely on the way in which you gathered your information. If you do subsequently publish the private information you gathered, however, you could also face liability for what is called “publication of private facts.” See the section on Risks Associated with Publication in this guide for more information on the risks you may face if you publish private information.

Recording Nudity or Sexually Explicit Content

New Jersey imposes criminal sanctions (N.J.S.A 2C:14-9) and civil liability (N.J.S.A. 2A:58D-1)  for photographing or filming, or disclosing any photography or filming, of “another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.”

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s