We live in the digital age where we feel compelled to record interesting things we see going on in the world around us. But before you whip out your phone to start recording, you should consider the legality of it. So, if you’re wondering, “Can I sue someone for recording me without my permission”? Read on.
Federal Wiretap Act
The main goal of the federal wiretapping law is to protect an individual’s privacy in communications with other parties. What comes to mind when you think of a “wiretap”? Probably someone listening in on your phone conversations, right?
Well, that’s just one aspect of the Act. It makes it illegal to intentionally intercept, share, or use the contents of any oral or electronic communication using a device. The Act carries with it criminal and civil penalties for such violations.
However, there are two primary exceptions to the laws on recording conversations, where it is not deemed illegal to wiretap. These are:
1. The Provider Exception
Telephone and mobile phone service providers are allowed to listen in and monitor phone calls as long as they have a valid court order. They can also do it when they need to provide a customer with service or inspect the equipment. They are also allowed to wiretap if they need to protect their (the provider’s) rights or property. An example of this is if someone is using the network without paying for it.
2. The Law Enforcement Exception
If someone is suspected to be engaging in illegal activities, law enforcement officials can legally intercept communications if one of the parties consents to it. Some state phone call recording laws require that all parties in communication consent.
In such instances, the Act describes “intentional wiretapping.” It’s important to be aware that ignorance of the law cannot be used as a defense. So, if someone isn’t aware of the Act, or thinks that it is not illegal to intercept your emails or record your phone calls, they are still liable under the Act.
Protective State Laws vs. Federal Laws
In scenarios where state laws are less protective of privacy than the Wiretap Act, the latter takes precedence. This means that a state law that would allow someone having a private conversation to be recorded without their consent would be pre-empted by the federal law, effectively rendering it void.
On the other hand, in instances where state laws offer citizens a higher level of privacy than what is stipulated in the federal law, the Act would not be pre-empted. The state law provisions would be upheld.
With that said, the 12 states that require every party present in a conversation to consent to record are New Hampshire, Michigan, Florida, Nevada, Illinois, Washington, Maryland, Montana, Massachusetts, Pennsylvania, Connecticut, and California.
Is It Against the Law to Record Someone Through Video?
Video recording laws by state are generally situational. It’s important to clarify that the Wiretap Act doesn’t apply to video or photo capture. It is legal to record someone in public, as long as they don’t have a “reasonable expectation of privacy”.
The Wiretap Act protects communications that the individuals being recorded perceive as private. Whether one perceives a conversation as private largely depends on the context.
Where was the conversation taking place? Was it in private or in public? Suppose you were at a party having a conversation amidst a group of friends openly stating that you swindled your business partner in a deal. If someone happened to record this conversation, it would be admissible as evidence in court if your business partner initiated civil proceedings against you.
There’s also a huge divide between video and audio recording with regards to the severity level of each. While you can get away with a lot more when capturing video footage without sound, adding an audio recording is a whole different ball game.
But there are exceptions to this even when you’re in a public space. For instance, let’s say you’re in a restaurant that’s displaying a notice prohibiting patrons from using their cameras while in the venue. If you start recording, the establishment reserves the right to sue you.
Federal laws also prohibit videotaping or photographing someone who is nude or engaging in any form of sexual activity in an area where they enjoy a reasonable expectation of privacy. This includes a public bathroom stall or locker-rooms. This is in direct contravention of the federal Video Voyeurism Prevention Act and is punishable by a fine or imprisonment.
Penalties for Recording Someone Without Their Permission
Violating state and federal laws on recording has serious ramifications. An individual could be ordered to pay damages in a civil lawsuit against them or might even face jail time or a hefty fine.
So, if someone recorded you without your consent, it is considered a gross infringement on your privacy, and you can initiate a lawsuit against them. If you win the suit, expect to receive a handsome amount in damages.
On a higher level, each state imposes some criminal liability on a person who violates the secret recording law. Criminal penalties could range from a misdemeanor conviction to a short-term prison sentence. That would be their cue to get a criminal defense lawyer involved.
On the federal front, the consequences are more punitive. Violating the Wiretap Act carries a possible five-year sentence, a $500 fine or both.
To sum up, someone can use their smartphone to record you in public only if you have no “reasonable expectation of privacy.” You can sue someone for recording you in a conversation that you perceived to be private and did not consent to the recording.
You can also report them to law enforcement authorities for infringing on your right to privacy in which case they’ll assume criminal liability.
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