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.
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,
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
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
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
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
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
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
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
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
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).
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.