Recording Laws: Uploading Your Audio or Video to The Internet

Before you start making plans to post your recordings, you’ll want to make sure that you won’t be creating a legal headache for yourself.

YouTube, Facebook and MySpace have all made individual uploading of video (and audio) to the internet very simple and very, very popular. You’ve captured some video and audio with ;-) SMIRKLIVE monitoring service and you’re ready to share it. But before you start making plans to post your recordings, you’ll want to make sure that you won’t be creating a legal headache for yourself.

Your first consideration should be whether or not the recording itself was done legally, regardless of whether the recording was made by you or someone else. The federal 1986 Electronic Communications Privacy Act makes it illegal to possess or divulge the contents of any illegally intercepted communication. (There may be an exception to this law in situations dealing with matters of public concern and proposed criminal acts – such as video of government officials conspiring to commit fraud – but this is still a gray area of the law.)

Video cameras are generally not illegal if they are visible and in a non-private place like the kitchen or living areas of your home. Covert cameras (like “nanny & granny cams”) are usually acceptable from a legal point of view, unless the person being recorded has a reasonable expectation of privacy. Federal law makes it a crime to secretly capture photo or video images of people in places and situations in which they have an expectation of privacy, such as bathrooms, dressing rooms, locker rooms, hotel rooms and tanning salons. Most states now have similar laws.

If the camera records sound as well as video, you must comply with federal and state wiretapping and eavesdropping laws. You will need consent of one or all parties to any recorded conversation, depending on your jurisdiction. Consent can be implied if a conversation is in an open, public area.

Even if the recording was made legally, you must still continue your analysis. A second consideration to be made is whether anyone who appears in the recording has a right to publicity claim. The right of publicity is the legal right to limit the public use of one’s name, likeness and/or identity, particularly for commercial purposes. Publicity rights have been recognized in at least 28 states.

As one might expect, New York and California are two states that regularly deal with right to publicity issues. California Civil Code authorizes a cause of action by any living person whose name, photograph, or likeness (which would include video) has been used for commercial purposes without his or her consent. Heirs of deceased people can also enforce the right of publicity.

New York and other states have very similar statutes. Assuming then that you’ve got a legally recorded video and you hope to share it on the internet for personal, and not business, reasons, you should check the Terms of Use of the website you choose to use. Any website may have more stringent requirements for the use of its servers to upload your recording. If you have any specific questions about the legality of uploading any of your video or audio recordings to the internet, it is always advisable to consult with a local attorney who is familiar with the laws in your jurisdiction.


Are you breaking the law, risking criminal charges or a civil lawsuit by taping your babysitter with a nanny cam or camera?

Like many parents, you may be considering a hidden or covert camera to record the interaction and behavior of your babysitter and your children while you’re away.  As you can see on our site, these so-called nanny cams or nanny cameras can be hidden in a variety of household objects and record activity without even a glimmer of suspicion on the part of your child care provider.

But, are you breaking the law, risking criminal charges or a civil lawsuit by taping your babysitter with a nanny cam or camera? Is it legal? The answer is yes, your nanny cam in most instances is perfectly legal.  There are a few details which should be brought to your attention and discussed with an attorney licensed in your state if you have additional questions.

Visible video cameras (not hidden in any way) are generally not illegal if they are in a non-private place like the kitchen or living areas of your home.  If the camera or Nanny Cam records Audio as well as Video, you must comply with federal and state wiretapping and eavesdropping Laws.  You will need consent of one or all parties to any recorded conversation, depending on your jurisdiction.  Most states will allow you, the parent, to consent to the recording on behalf of your minor child.  See the Audio Recording Laws article on this site for more information about the necessary consent to an audio recording.


Wanting to record audio outside the private resdience?

With so much great technology on the market these days, it is easier to record conversations than ever before – either over a land line, on a mobile phone or even in-person with a hidden recording device. Recorded conversations (either tape or digital) are often very helpful in a variety of scenarios.

These Audio Recordings may assist in an investigation of employee misconduct or in business or personal lawsuits, even in potential criminal investigations.  It is very important, however, to make sure that any Recording, either of a Phone Conversation or an in-person conversation, complies with Federal and State laws.  Otherwise, you may very well open yourself up to criminal charges or civil suits.  And it is unlikely that you will be legally able to use the recording for your original purpose.

So, if you’re thinking about Recording some Phone Calls or placing a voice-activated Recorder in a room to Record Conversations, you’ll need to take a look at the applicable Laws.

The first place to look is at the federal wiretapping statute – also known as the Electronic Communications Privacy Act.  Federal Law allows Phone calls (traditional, cellular and cordless) and other electronic communication to be Recorded with the consent of at least one party to the Conversation.  This means that if you are one of the people taking part in the conversation, it can be recorded (because one person – you – has consented to the recording).

If you are not taking part in the conversation, at least one of the people in the conversation must know about and consent to the recording.You can’t stop, however, after considering federal Law and assume that your Audio Recording passes muster.  Each state and territory has its own statutes regarding the recording of conversations.  Most state wiretapping and eavesdropping Laws are based upon the federal Law and allow Recording with the consent of one party to the Conversation. 

The 37 states which allow “one party consent” recording of oral communications are: Alaska, Arkansas, Colorado, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin and Wyoming.

The District of Columbia also allows people to Record Conversations with the consent of only one party.  Nevada has a one party consent statute but there is some question as to how the Law should be interpreted by the courts – it could be considered an “all party consent” state.

The 12 states which definitely require all parties to a conversation to consent before it can be recorded are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington.  (In California Law, there is an exception – you can Record an Audio Conversation with the consent of only one party if certain criminal activity (kidnapping, extortion, bribery or a violent felony) is involved.

Hidden cameras (often referred to in the media as “nanny cams” or “nanny cameras”) are still usually okay from a legal point of view, unless the babysitter has a reasonable expectation of privacy. There is a federal law which makes it a crime to secretly capture photo or video images of people in places and situations in which they have an expectation of privacy, such as bathrooms, dressing rooms, locker rooms, hotel rooms and tanning salons.  Most states now have similar laws.

So, you definitely can’t record the nanny in the bathroom and probably not in her bedroom if she lives in with your family.  Most experts agree that you shouldn’t wait until you suspect some sort of abuse or neglect of your child before getting a nanny cam.  If you install one before the nanny is hired and inform her that she may be monitored, your nanny cam may act as a deterrent to misconduct or abuse – instead of an investigative tool.

In fact, many nannies have no problem with nanny cam monitoring – as long as they know about it or at least about the possibility that it is there.  They often are offended however by secret, hidden cameras.So, at the end of the day, you will need to balance the legal and ethical issues related to nanny cam recording.  Reasonable video surveillance, especially if done without sound, is legal in every state as long as you stay out of the bathroom and the bedroom.  Now you’ve just got to decide whether or not to disclose the existence and/or location of the camera to the babysitter before you switch it on…


Video and Surveillance Laws in the Workplace

This article is an overview of the laws applicable to audio and video surveillance in the workplace

Many employers consider video and other surveillance key to keeping an honest and productive workplace.  It keeps employees on the straight and narrow – no fingers in the till, no time clock funny business, no drinking or drugging on breaks.  Many business owners and managers also record or review phone calls and emails from the office.  But employers must be careful not to go too far in their surveillance or they will risk being sued by an employee for an invasion of privacy under federal or state law.

This article is an overview of the laws applicable to workplace surveillance – you should always talk to your own attorney to determine exactly what the law is in your state

Video Surveillance

There are several variables when considering video surveillance in your place of business.  Your choices include visible traditional and dome surveillance cameras or hidden cameras, with or without audio.  Each of the variables has potential legal implications.

Visible surveillance cameras (not hidden in any way) are generally not illegal if they are in a non-private place.  If the camera records sound as well as video, you must comply with federal and state wiretapping and eavesdropping laws.  You will need consent of one or all parties to any recorded conversation, depending on your jurisdiction.  See the Audio Recording Laws article on this site for more information about the necessary consent to an audio recording.

Hidden cameras (often called spy cams) are a slightly different story.  Video recording (without sound) is usually okay – even if the camera is hidden – unless the person(s) being recorded has a reasonable expectation of privacy, the taping is done for some illegal purpose or there was trespass to record the video. Courts across the country are finding with more and more frequency that no reasonable expectation of privacy exists with non-covert video surveillance or even with hidden surveillance if the physical space examined is a public space.

Note that, if an employer uses union employees, the employer may be required to notify the union of its intention to use hidden cameras, but probably doesn't have to disclose where the cameras will be installed. There is a federal law which makes it a crime to secretly capture photo or video images of people in places and situations in which they have an expectation of privacy.  Most states have followed suit.  These laws are often referred to as “video voyeurism” statutes.

Video Voyeurism Law
As you can see surveillance technology has advanced so much over recent years that excellent cameras can be completely hidden from view in a number of different ways.  These Spy Cams are a great tool for many employers but can also be used inappropriately.  The federal government and most states have recently passed “video voyeurism” laws.

These laws make it a crime to secretly record or distribute images of people in places where they have a reasonable expectation of privacy, such as bathrooms, dressing rooms, locker rooms, hotel rooms and tanning salons. The federal law prohibits anyone from recording images of an individual’s “private areas” without consent when that individual has a reasonable expectation of privacy.  Every state in the U.S. now has some legal prohibition of video voyeurism or invasion of privacy, except Iowa and Washington D.C.

About half of these statutes actually make this kind of video recording a felony.  Many have an even harsher punishment for distributing such videos. You will need to check your home state’s particular laws as the courts from state to state may have differing opinions as to what types of places are expected to be private – bathroom and changing rooms may be “no-brainers” but some states’ courts have even decided that employee break rooms or lunch rooms are “private” for purposes of video surveillance.

The monitoring of electronic communications such as telephone calls, voicemail, email and IMs is covered by the federal wiretapping and eavesdropping statute – the Electronic Communications Privacy Act. The ECPA does include several business use exceptions to allow employers to perform necessary investigations, protect trade secrets and keep an eye on inventory and receipts.

Other Surveillance in the Workplace

Under the federal law, the monitoring of things such as email and phone calls is allowed if either the sender or recipient consents or if it is done in the regular course of business.  Employers can monitor only equipment which they own and do not have the right to monitor email hosted by a third party (like web-based email programs).

Best Practices
Whether they have a right to privacy at work or not, many employees find surveillance of any sort offensive.  It is good practice for employees to be provided with written notification of the existence or possibility of any monitoring in the workplace – video, audio or otherwise.  Notices can be made a part of a written, distributed policy or a section in the employee handbook. Employees can even be asked to sign a consent to or acknowledgment of the monitoring.

If you are cautious, ethical and respectful of your employees and of the law, video and other surveillance in the workplace can be a wonderful tool to keep your business running smoothly and profitably.


SMIRKLIVE Video Surveillance Solution uses IP networks to deliver video surveillance services, to reduce costs, improve monitoring, and produce additional value from network and physical security investments.

Features and Benefits

Category  Benefits
Reduced
Costs

1. Reduced capital and operational costs through integration of multiple services into a single device and network link at the remote site

2. Gradual migration to protect existing investments in video surveillance and physical security

3. Flexibility to choose the best components, from multiple vendors, for a specific site or business need

Improved
Operational
Efficiency

1. Faster incident response, investigation, and resolution through more flexible access to physical security information

2. Improved security posture through access to live and recorded video-anywhere, any time-with a broad range of devices

3. New ways to use video to improve all business operations through application integration and collaboration among physical security, IT, and other business groups

Increased
Investment
Value

1. Broadcast-quality, low-latency, and secure video to enhance surveillance monitoring and decision making

2. Support for other physical security systems and devices to enhance the value of those investments

3. Scalability to serve new requirements and business growth

Multiple
Services,
Single Device

1. Compatibility with other network services used at each site through integration of video surveillance components within the router

2. Simplified deployment and control of new applications and security capabilities

3. Minimal training required for physical security staff because the solution can be supported by the enterprise network and IT staff

4. High reliability and availability from a proven device that is engineered to deliver a site's vital communications

FAQ - Special Interest