Legalities of Recording Incidents

M

Matt VDW

New member
Years of reading about situations that end up being decided on the basis of one party's word against another have made me curious about the legalities of audio and video taping. I'm not asking for a legal opinion, but I'd like to hear some thoughts on the following scenarios:

#1 - Someone walks up to me on the street and begins a conversation. I have a voice-activated tape recorder in my pocket. Do I have to inform the other person that he is being taped?

#2 - I'm involved in a traffic accident. As the other driver walks towards my car, I snap his picture with a small camera. Any problems?

#3 - I'm pulled over for a traffic stop. I switch on my pocket tape recorder. Now do I have to say anything?

#3a - Same as #3, but I inform the police officer that he's being taped and he tells me to turn it off and/or hand it over. Is he acting within the law?

#3b - Same as #3, but the device is a small video camera on the dashboard rather than a tape recorder.

My interest is prompted by a conversation I had with one of the engineers who works for my (my in the sense of "works there", not "owns" :)) company. This fellow's job requires loading data communications hardware into a rental truck, driving out to a data center or comm site, and installing the hardware. Anyway, he starting telling me about some of his encounters with the police, and I was shocked. If his stories are credible, and I think they are, this fellow has gotten pulled over for such BS reasons as "weaving" and a "routine check". And then he's been subjected to questions and searches that sound like they weren't based upon any sort of probable cause. I suggested to him that he record one of these incidents to back up a complaint, and he said that one of his fellow engineers attempted to videotape a similar stop and was arrested for "disorderly conduct".

I don't want to spark another round of cop-bashing. I just think that it's unreasonable for law enforcement officers who aren't doing anything wrong to object to being taped (in an unobtrusive way, without lights or microphones in their faces) by someone who doesn't want to be the victim of a fishing expedition.

Your thoughts?
 
I believe that you'll have to consult state law in order to determine whether secretly recording a conversation with another party is legal. Note the case against Linda Tripp. Perfectly legal to record your own telephone conversation in Virginia, not in Maryland.

As far as notifying a police officer that he is being taped, I believe that is legal. I know someone, not a close friend, who told me he does this. I don't see how the police officer could ask you to turn off the tape. Perhaps declare that it is a case involving national security, or putting hostages at risk?!

Having a tape of a police officer might be good to have if you are always being hassled by cops to allow them to search your car. It would be difficult for them to claim permission in court if you have a tape with you clearly denying permission.

Some cops will really push you to have permission to search. I believe it is my duty to cut short these fishing expeditions. As I've written before, I've gotten fairly smart with cops demanding searches. One seemed very close to punching me out. It would have been better for me to be more curt and just record the conversation.
 
Legally, I believe the answers are no, no, no, no, and no.

There is an FCC requirement for PHONE LINES which requires that at least ONE of the parties knows about a recording being made of the conversation (not two or more), and this doesn't apply to non-FCC regulated forums (i.e. "on the street", in one's home, etc.). There may be some variations on this from state to state (e.g. Linda Tripp is being prosecuted under MD or VA law, which apparently requires BOTH parties to know of a taping).

I believe an LEO would be violating your rights if s/he forced you to stop audio or video recording of an indident, stop, etc., though I cannot pointpoint from my head right now exactly why - probably depends on which state. I've never seen anything which would require disclosure of the recording to the officer. I personally carry a small tape recorder between the seats of my pickup for just this reason, though I haven't yet had occasion to use it (need to check the batteries!).

If you're recording in a nob-public setting, without the knowledge of the "recordee", you may be civilly liable for invasion of privacy, but unlikely, and this is not implicated by any of your scenarios.

[This message has been edited by Futo Inu (edited December 29, 1999).]
 
When I was in high school, one of the local LEO's rolled a squad car while cutting though the high school grounds, which was between two main roads (and had a twisty drive on one side). This was on a weekend, so there weren't many people around. A classmate who was a photographer showed up and started taking pictures. Another LEO at the scene shows up and takes the guy's camera (!!). No real reason given, camera later returned sans film.

The point? Just because you're legally in the right doesn't mean your rights will automatically be respected.
 
Whether you can record any communication is certainly a matter of state law. In my state (Idaho), the answers are as follows:

#1 - no duty to inform him of the taping. We are a one-party consent state; if one party to a conversation consents (inevitably the one with the recorder) you can record it and use it for whatever purpose you desire - unless you are a doctor, lawyer, or other person with whom the other party has a confidential relationship and can claim a privilege against your disclosure of the conversation.

#2 - legal everywhere. Only certain communications can be privileged - actions and objects, especially in public where there is no expectation of privacy, are not. (Unless it's some celebrity and you intend to make gazillions off selling their likeness; they'll spend big $ suing to stop you)

#3 - same as #1. Here, every LEO carries a pocket recorder to record contacts during traffic stops and interviews with subjects. Very handy to refute the driver's claim that he didn't admit to criminal behavior, slur his words or lose his cool.

#3a - Leave it on. What expectation of privacy does an LEO have as a public servant while performing his job? Don't even bother telling the LEO; it may make him angry, and you'll probably lose your chance of getting off with a warning, if you weren't stopped for something serious. I can think of no way he would be acting within the law (unless, perhaps, your state is a two-party consent state) or pursuant to the discharge of his duties to order you to turn it off.

#3b - same as 3a. Recall that many LEO's also have dash mounted video cameras to record traffic stops (and chases for TV shows) and contacts with subjects. Many were provided by insurance companies to help DUI enforcement. Same theory applies - actions in public, where God and everyone can see, don't carry any expectation of privacy.

I find it strange that some states require two-party consent; unless the conversation is specifically privileged - like attorney/client - there is no confidentiality. The reasoning is, if you're willing to tell someone with whom you don't have a confidential relationship, it's the same as standing in the public square with a bullhorn and announcing it, since nothing prohibits your listener from going and telling everyone. Without one-party consent, we'd never have drug busts based on an informer who was wearing a wire - the BG clearly wouldn't consent to that, would he?

- - - Don
 
If you live in one of the few states that does not allow you to tape your own conversations or have had cops steal recording devices, I suggest you contact your legislator and work to have it changed.

Those video cameras on cop cars, do they ever get permission?

Rick
 
I just thought of something...

If bad luck did have me cross paths with a police officer determined to do some searching, with or without probable cause, then he might very well find the tape recorder. Then when he tears it apart to see if any drugs or semtex or whatnot are inside and oops, the tape gets damaged. There goes any hard evidence of police misconduct.

Actually, my own contacts with police haven't been bad at all. I've been pulled over twice for speeding and both times the officers were very courteous and simply wrote me a ticket without playing twenty questions or rummaging through my truck. And oddly enough, I had multiple handguns and hundreds of rounds of ammo with me both times: once I was coming back from a practice session at the range and once I was on my way to a match. Everything was legal, of course, but I did worry a bit about getting hit with the "Do you have any guns or drugs?" question. My instinct to be nice and cooperate would have clashed with an urge to play wise-guy and say something like "If I were going to shoot you, would I tell you about my gun?" or "Unless the Bill of Rights was repealed this morning, that's none of your business".

Anyway, it will interesting to see if the evolution of cheaper and smaller recording devices makes people more honest by increasing the risk that lies will be exposed. I think that a sub-$20, pen-sized voice recorder could come in handy for a CCW holder who might be accused of threatening someone.
 
Yeah, Futo, I guess they say great minds think alike, yeah that must be it. But where are the retelling of your run-ins?

I think its been said that most cops aren't rogue cops. If you run into a true rogue cop you're likely to be screwed. This is a good reason not to unduly anger cops as I've done in the past.

But many cops will fudge the law, "wink, wink" because they know most judges will let them get away with it. Still I think the principled thing to do is refuse searches and behave politely. Some places will threaten to call in the drug-sniffing dog, though I think the court has put limits on how long they can hold you up waiting for the dog.

One of the dirty tricks cops will play is to run a hand dipped in drug residue along the trunk of your car in order to assure that the dog will signal. I know someone who swears this happened. Of course no drugs were found but his possessions were damaged in the search.
 
O.K. I was in the surveillance biz in N.Y. and the statement that it varies from state to state is absolutely true...

However in NY it is illegal to COVERTLY record both audio and visual images without a posted notice in an indoor environment. However covert indoor recordings of Audio OR Visual images can be made without said notice.

Outdoors, is considered public domain and all of it is fair game. So...

Scenario 1 - You do not have to inform the person AT ALL. This is the same principle that unables undercover officers to be "wired" without a warrant or court order. And because the recording is audio only can extend to the indoor environment as well.

#2 - Perfectly legal regardless of who it is. It is an event in the public domain and regardless of the celibre' of the parties involved there is nothing anyone can say about it. Not even Sean Penn.

#3 - You do not have to say a word at all. And in fact if you do record an encounter with an officer, I recommend keeping it to yourself or you destroy the integrity of the encounter. The Police officer knowing he is being recorded may modify his behavior accordingly.

#3a - He may tell you to turn it off, he may tell you anything at all for that matter. However, he cannot force you to turn it off, and if he takes it from you and turns it off, guess what? Your civil rights have just been violated.

#3b - A slightly touchier situation, because now you have both an Audio and a Video record running. BUT, If you have informed him of this and are not recording in both mediums covertly, legally, you are covered. The Officer on the other hand may claim that you were obstructing his ability to perform his duties, i.e. by pointing a video camera at him, he was unable to observe you sufficiently to determine whether or not you were impaired. Or he could not see your eye color to assess whether you are the person on the drivers license, or any one of a host of excuses. The result? You are arrested for "Obstructing governmental administration."

Also consider, If the Officer is sufficiently antagonized he may decide to arrest you and confiscate the tape and equipment as "evidence". Then at his liesure, he can review the evidence you gathered for him to look for any infraction no matter how small.
If I were to record an interaction with an officer, not as a bystander or witness but as a participant it would be audio only, and covert.
 
In either Rhode Island or Massachusetts, (I live near the line) a guy taped a cop during a traffic stop. He was charged under the wiretapping laws. He taped the officer without his permission and the defense that the police tape "civilians" without their permission was no defense.

If you're interested you might search for the story in the archives at http://www.projo.com (Providence Journal-Bulletin)
http://www.boston.com/globe/
(Boston Globe)

There may be a fee to download the entire story.


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Gun Control: The proposition that a woman found dead in an alley, raped and strangled with her own panty hose, is more acceptable than allowing that same woman to defend herself with a firearm.


[This message has been edited by jimpeel (edited December 30, 1999).]
 
Federal law speaks only to taping of telephone conversations.

While I had not heard of the Massachusetts law equating tape-recording of an outdoor conversation with tape-recording a telephone conversation, I think the Rodney King tape speaks to California's legal view.

A voice-activated small tape-recorder is a Good Thing, in today's world. The wide-angle lenses and voice-recording capabilities of the small video-cams makes them useful as well, as they can be set on a dashboard and aimed out a car window or door--and they're not obviously "at work".

:), Art
 
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