Is electronic surveillance illegal?
It depends on whether the person doing the recording is part of the activity or conversation and, if so, if state law then allows that recording. In most circumstances, what is generally referred to as “spying,” meaning someone who is not a part of your personal/private activities or conversations monitoring or records them without your knowledge, is usually illegal. The differences between these two are explained more below.
If the person is part of the activity or conversation:
Many states allow someone to record a phone call or conversation as long as one person (including the person doing the recording) consents to the recording. Other states require that all parties to the communication consent.
For example, if Jane calls Bob, Jane may legally be able to record the conversation without telling Bob under state X’s law, which allows one-party consent for recordings. However, if state Y requires that each person involved in the conversation know about and consent to the recording, Jane will have to first ask Bob if it is OK with him if she records their conversation in order for the recording to be legal. To learn more about the laws in your state, you can check the state-by-state guide of recording laws from the Reporters Committee for Freedom of the Press.
If the person is not part of the activity or conversation:
There are several criminal laws that address the act of listening in on a private conversation, electronically recording a person’s conversation, or videotaping a person’s activities. The names of these laws vary across the country, but they often include wiretap, voyeurism, interception, and other recording laws. When deciding which law(s) may apply to your situation, this may often depend on the circumstances of the surveillance and whether you had a “reasonable expectation of privacy” while the abuser recorded or observed you. Legally, a reasonable expectation of privacy exists when you are in a situation where an average person would expect to not be seen or spied on.1 For example, a person in certain public places such as in a football stadium or on a main street may not reasonably have an expectation of privacy, but a person in his/her bedroom or in a public restroom stall generally would.
1 See Katz v. United States, 389 U.S. 347 (1967) (noting that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”)