Can You Record Your Own Conversations?

There is an ongoing confusion about whether or not you are “allowed” to audio record or video record your own conversations with other people.

Fundamentally you should be able to do it without breaking any laws. Some jurisdictions have laws claiming to prohibit such acts. I believe there is no question that yes you can, if you are a party to the interaction being recorded.. The real questions become what do you do with it and who are the other parties.

Here is a case from B.C. which deals with a true eavesdropping scenario:

http://www.canlii.org/en/bc/bcsc/doc/2007/2007bcsc662/2007bcsc662.html

If you make such recordings publicly available you have now breached the other parties’ expectation of privacy. However, if the other party is a public official, acting in their public capacity ,the intereation you record is considered public and can be released, I believe.

Public is public and private is private. You must learn to distinguish between the two and make sure that if you record a private converstaion you maintain the privacy of your recoring unless you have explicit consent of all the private parties who are on the recording.

One exception to this is in news reporting, no permission is required for broadcast of people in the recording if reporting news and they are somehow included in the image or audio.

Is the above the law? I think so, in principle, HOWEVER principle and application are two different things. Check your local laws.

Many laws are written, enforced and prosecuted that are in violation of your rights. The only reason they exist is that no one has successfully challenged the offending law.

The biggest confusion around this recording question is public versus private. The context of the parties (are they private or public officials on duty)and the actual use of the resulting recording.

The second issue that is rarely discussed is provincial/state jurisdiction versus federal jurisdiction. There are different laws for each, often.

Here’s a recent example of the ridiculousness and bias in our law enforcement environment. A fellow in Chicago was arrested while breaking a by-law against art venders needing a license to sell their art on the street. He thinks the vender law is an bad law and he wanted to challenge it. Break it, get charged and have the court decide if the law is good or bad. Fine.

For a twist to the story he recorded his arrest and was charged with a 1st class felony (facing 4-15 years in State prison)!

Now he gets to “test” two laws!

Here’s brief overview of all the states “eavesdropping laws” and his story below.

http://www.rcfp.org/taping/states.html

and the Illinois law:

http://www.rcfp.org/taping/states/illinois.html

Illinois

In Illinois, an eavesdropping device cannot be used to record or overhear a conversation without the consent of all parties to the conversation. 720 Ill. Compiled Stat. Ann. 5/14-1, -2. An eavesdropping device is defined as anything used to hear or record a conversation, even if the conversation is conducted in person.

In addition, it is illegal to disclose information one knows or should have known was obtained with an eavesdropping device. Violations of the eavesdropping law are punishable as felonies, with first offenses categorized as lesser felonies than subsequent offenses. 720 Ill. Compiled Stat. Ann. 5/14-4. Civil liability for actual and punitive damages is authorized as well. 720 Ill. Compiled Stat. Ann. 5/14-6. However, not disclosing the contents of the illegally obtained communication is an affirmative defense to the charge.

Standard radio scanners are not eavesdropping devices, according to a 1990 decision from an intermediate appellate court. Illinois v. Wilson, 554 N.E.2d 545 (Ill. App. Ct. 1990). A camera is not an eavesdropping device. Cassidy v. ABC, 377 N.E. 2d 126 (Ill. App. Ct. 1978).

It is also illegal for any person to “videotape, photograph, or film another person without that person’s consent in a restroom, tanning bed or tanning salon, locker room, changing room or hotel bedroom,” or in their residence without their consent. 720 Ill. Compiled Stat. Ann. 5/26-4(a).

The eavesdropping provisions do not prohibit private citizens from electronically recording the proceedings of any meeting subject to the Open Meetings Act.

Under Illinois law, when communications with individuals acting as agents or representatives of a company are taped in violation of the Illinois eavesdropping statute, claims under the eavesdropping statute belong to the company. International Profit Associates, Inc. v. Paisola, 461 F.Supp.2d 672 (N.D. Ill. 2006).

http://www.c-drew.com/blog/2010/03/23/cell-phone-felony/

http://www.c-drew.com/blog/

His overview of the three theories of free speech:

“In the first chapter of “Free Speech in an Open Society” entitled “The Case for an Open Culture” the three theories calling for speech are explained. The three are, the Market Place Theory, the Free Expression and Human Dignity Theory and the Democratic Self Government Theory. All First Amendment case law is built on a foundation of one or more of these theories. Once the foundational theories of free speech are understood then the multitude of unique First Amendment complexities are better able to be appreciated. First Amendment case law is enormous covering every aspect of speech to ever create a controversy that reached a federal court.

“The Market Place Theory says “truth” is best advanced by a free trade of ideas in an open market place. The market place of ideas appeals to our optimism that good will finally conquer evil. It believes truth has a stubborn persistence. Because “truth” must often battle forces of money, power and dogma we should be more protective of free speech, not less, out of concern for its vulnerability. It is better error on the side of more free speech than on the side of less speech. It justifies free speech as a means to an end – truth.

“The Free Expression and Human Dignity Theory justifies free speech as an end in itself – as a psychological need for a healthy self-esteem and thus a healthy society. Speech results from the human ability to think, imagine and create. Once the freedom to think is accepted – the freedom to speak follows. It is a social need of all humans. Mr. White’s claim that the First Amendment protects self-expression falls under this theory of free speech.”

What are the recording laws in your jurisdiction and do you think they are open to be challenged?