An abuser may use technology to record your conversations and actions to maintain power and control over you. Recording laws deal with whether you or the abuser can legally record conversations or actions and whether those recordings can later be used in court.
How can an abuser misuse recording technology?
In a relationship where there is domestic violence or stalking, an abuser may record your conversations or take video of your actions to get more information about your personal life and to keep you from having any privacy in order to keep power and control over you, learn about your schedule, and possibly use the information against you later to blackmail you depending on what is recorded. You can learn more about how an abuser could misuse recording technology and recorded information again you in our Electronic Surveillance page. (Note: The content below will specifically cover recording your conversation or your image).
Is recording a conversation with another person illegal?
It depends. Generally, whether recording a conversation is illegal will depend on your state’s laws. Some states allow recording of telephone calls and in-person conversations with the consent of at least one of the parties. Therefore, the law may allow you (as a part of the conversation) to solely give consent to the recording. Similarly, if the abuser records a conversation that s/he is a part of, then his/her consent may be sufficient to allow him/her to legally record the conversation. State laws that only require one party to consent to the recording are often called “one-party consent” recording laws.
Other states require that all parties who are a part of the conversation give consent to a recording before recording a conversation is considered legal. These recording laws would apply regardless of which party is recording the conversation. In other words, if you are recording a conversation to gather evidence of threats or abuse, but your state requires that all parties in the conversation consent and the abuser has not consented to the recording, your actions could be illegal.
It can be helpful to know your state’s recording laws to figure out if the abuser did something illegal by recording a conversation. It may also be helpful for you to know whether the law allows you to record a conversation where the abuser threatens or abuses you (if you are trying to keep a record of the abuse). You can check your state’s Crimes page or Statutes page to look for the laws in your state and our Finding a Lawyer page to look for a lawyer who can give you legal advice. You can also consult the Reporter’s Committee for Freedom of the Press Recording Guide for state-by-state information on recording laws.
Is taking a video or photograph of another person illegal?
It depends. Generally, whether taking video or a photograph of another person without his/her consent or knowledge is legal or illegal may depend on whether the subject of the video or photograph had a reasonable expectation of privacy in the place where video or photograph was taken. A “reasonable expectation of privacy” generally exists if you are in a place where an average person would expect to not be seen or spied on.1 For example, if you are in a public place, you may not have a reasonable expectation of privacy, but if you are in your bedroom or a public restroom stall you 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.”)
Can recordings be used in court?
Generally, any evidence gathered in an illegal way cannot be entered into the record in a court proceeding. If you have recordings that were legally obtained, then whether you can use that evidence in court will depend on your state’s rules of evidence. Generally, you may have to prove the authenticity (validity/truthfulness) of a recording to the judge and prove whose voices or images are on the recording. Then the judge will also have to decide whether it is appropriate under the state’s rules of evidence to admit those specific pieces of recorded evidence.
Another possible challenge with getting a recording admitted into evidence during a court hearing is that the judge may decide that your recording is considered hearsay (an inadmissible out-of-court statement). There are several exceptions to the hearsay rule, which again will depend on your situation, your state’s laws, and the rules of evidence that control court proceedings in your state. It may be helpful to speak with a lawyer in your state to get legal advice about how to deal with any recorded evidence that you think is important to your case (or how to object to recorded evidence that the abuser tries to admit into evidence). It may also be helpful to consider other ways to document incidents of abuse to prepare for a court hearing or testimony, such as using a “stalking log.”
What laws address recorded conversations or videos?
Your state should have a specific recording, eavesdropping, or wiretap law that addresses whether all parties must consent to a recording or if only one party’s consent is sufficient for you (or the abuser) to legally record a conversation. For videos, states may have specific voyeurism or surveillance laws that apply to recording a video or taking a photograph of someone without his/her permission.
Although each state’s law may not have the same name, you can check your state’s Statutes page and your state’s Crimes page to see if we list a statute that is relevant to your situation. You can also check with a lawyer in your state and use the information and resources we include on our Electronic Surveillance page to learn more about your state’s laws.