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EspañolHow can an abuser misuse recording technology?
In a relationship where there is domestic violence or stalking, an abuser may record you. This could mean recording your conversations or taking video of you. S/he can use the recordings to get more information about your personal life or even as a way to blackmail you by threatening to share intimate or embarrassing information, photos, or videos. Keeping you from having any privacy can also be a way to keep power and control over you. You can learn more about misusing recording technology on our Electronic Surveillance page.
Is recording a conversation with another person illegal?
Whether recording a conversation is illegal depends on your state’s laws. Some states allow recording of calls and in-person conversations without consent of the other person involved. These laws may allow you to record a conversation between you and someone else without that person knowing. On the other hand, this means that the abuser may also be legally allowed to record a conversation with you without your knowledge or consent. These types of law are often called “one-party consent” recording laws.
Other states require consent to record from everyone who is a part of the conversation. Without that consent, recording a conversation might be considered illegal, at worst, or just not admissible in court, at best. The “two-party consent” laws make it much more difficult for victims to gather evidence of threats or abuse.
Although some state’s recording laws may refer specifically to “telephone calls,” there are other types of voice calls these days besides phone calls. Many apps, like Discord and WhatsApp, can be used for voice calls. There are also video calls using apps like Zoom and FaceTime. You may want to find out how your state’s recording laws apply to these types of technology if you are hoping to record such a call. A lawyer who is knowledgeable about privacy laws should be able to provide legal advice.
Most states have specific recording, eavesdropping, or wiretap laws that deal with the issue of whether consent is needed for a recording to be legal. You can check your state’s Crimes page to look for any laws related to recordings or you can check the Reporters Committee for Freedom of the Press website. It has a lot of state-by-state information on recording laws.
Is taking a video or photograph of another person illegal?
The key to figuring out whether it is legal to take a photo or video of someone without their consent is whether the person would have a “reasonable expectation of privacy.” A “reasonable expectation of privacy” generally exists if someone is in a place where an “average person” would expect to not be seen or spied on.1 If there is a reasonable expectation of privacy, then taking the photo or video without consent may likely be illegal. For example, if you are in a public place, such as a beach or a park, you may not have a reasonable expectation of privacy. If you are in your bedroom or a public restroom stall, you generally would reasonably expect privacy.
Many states have specific voyeurism or surveillance laws that could apply to taking a video or photo of someone without his/her permission. You can check your state’s Crimes page to look for any laws related to photos or videos.
1 See Katz v. United States, 389 U.S. 347 (1967)
Can recordings be used in court?
Whether or not a recording can be used in court may likely depend on whether the recording was made in line with your state’s laws regarding consent for recordings. Generally, evidence gathered illegally cannot be entered “into the record” in court. But, even if you have recordings that were legally created, whether you can use them in court will still depend on your state’s rules of evidence. So, for example, you may have to prove the truthfulness (authenticity) of the recording to the judge and convince the judge whose voice or image is in the recording.
Another possible challenge with getting a recording admitted into evidence is that the recording may be considered hearsay. Hearsay is basically an inadmissible out-of-court statement. There are several exceptions to the hearsay rule, one of which could be used to allow a recording to come into evidence. You can read more about hearsay and the exceptions to hearsay in our Preparing for Court – By Yourself section.
After considered these factors and others, the judge will decide whether it is appropriate under your state’s rules of evidence to allow the recording to be accepted (“admitted”) as evidence. It may be helpful to speak with a lawyer in your state. A lawyer can give you advice about whether recordings that you think are important to your case might be allowed into the court hearing. The lawyer can also advise on how to object to recordings that the abuser may try to enter into evidence in court.
