What to Know Before Recording Someone Without Their Consent

woman in a hoodie holding a smart phone

Whether in a public or private setting, understanding the laws behind recording someone without their permission is vital to ensure that you are doing the right and responsible thing.

Wherever you go in public, there is the risk of being recorded. Whether in a coffee shop or a store, security cameras are all over the place. When you walk outside the comfort of your private property, it is safe to assume that you are being recorded in some way; however, once you are on your personal property or a friend’s private property, that expectation shifts. It is important to learn the intricacies behind recording someone, both in public and private, so you can better understand when to keep your device rolling and when it is best to shut it off.

Is it Illegal to Record Someone Without Their Consent While in Public?

The simple answer to this question is: no. When you are in a public setting such as a concert, grocery store, a park, and many others, recordings are permitted. The primary motivator for recording in these types of atmospheres is to ensure safety and enhanced security. Once you leave your private property, you should not be expecting full privacy. Thus, recording in appropriate settings when in public is permitted. However, even in public, there are certain places with expected levels of privacy where recording is not allowed, such as bathrooms and dressing rooms.

Is it Illegal to Record Someone Without Their Consent While in Private?

While outside of the public eye, there is an expected level of privacy, making it illegal to record someone without their permission in some circumstances. If you are on personal property, it is up to the owner’s discretion if photos and videos are allowed. If the owner forbids pictures and videos, and you decide to take or record them anyway, you may be told to leave the property or even arrested for disobeying the owner’s requests.

Wiretapping Laws: One-Party Consent States vs. All-Party Consent States

There are currently 36 states, as well as the District of Columbia, that are one-party states. A one-party state means that as long as you are a part of the conversation, you can record that conversation without the other party’s consent.

There are currently 11 states that have all-party consent: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. All-party consent means that for the audio recording to be taken legally, all parties involved need to communicate that recording the conversation is okay.

Currently, Michigan, Connecticut, and Oregon have a mix of both one-party and all-party consent that varies based on circumstances. Vermont is not operating with either standard, as they currently have no clear law on recording without knowledge.

The dedicated team here at Sparks Law are here to help clear up any confusion when it comes to recording without consent. Please reach out to us to discuss your obligations when it comes to recording another person.