Is it Illegal to Video Record Someone Without Their Consent?

You have a First Amendment right to be able to videotape police officers working in an official capacity. This means that the officer does not have the right to delete your pictures or videos. One thing to keep in mind is that you are not able to break any laws while filming, this includes trespass on private property, obstructing law enforcement officers, or any other laws that may be applicable. It is best practices to film law enforcement officials with your recording device openly displayed (not in secret) as the law may get murkier in some states if you are privately recording audio where there may be an expectation of privacy.

There are many places where you can expect to have privacy. The most common being when you’re on the phone or in your own home. Places where you would have a reasonable expectation of privacy: In your own home, on the phone, in your vehicle, or in your business office. The law on what constitutes a reasonable expectation of privacy is based on 2 factors that must both be met to qualify as reasonable. The first is whether the subject believed they had privacy, and the second is whether society believes that expectation to be reasonable. An example would be in a Starbucks there is no reasonable expectation of privacy because most patrons can overhear each other. Examples of areas where there is no expectation of privacy: Sidewalks, streets, public buildings, or sporting events.

Due to video being used nation wide for surveillance there are very few restrictions on recording video other then in private areas such as bathrooms. This means that most restrictions for recording video come from the audio recording section. Federal Law for recording audio is derived from the U.S. Code § 2511 which protects wire, oral, and electronic communications. It applies to data stored electronically. Federal Law as it pertains to recording conversations is considered one-party consent where you need the consent of only one party to legally record private conversations.

Secret recordings are more of a murky area legally. If you are taking part in the conversation going on they are legal in all one-party consent states. If you are making the recording in all-party consent states the recording may not be admissible.

You can legally record on private property where recordings are allowed if you are respecting the rights of the owner of that private business or property. If there is signage saying ‘no video recording allowed’ or similar then you are not allowed to record. Additionally, if security asks you to stop filming you must stop or you’re at risk of being charged with trespassing.