New York Recording Law Summary:
Is New York a One Party Consent State?
New York recording law stipulates that it is a one-party consent state. In New York, it is a criminal offense to use any device to record, obtain, share or use communications, whether they are wire, oral or electronic, without the consent of at least one person taking part in the communication. This means that in New York, you are legally allowed to record a conversation if you are a contributor, or with prior consent from one of the involved parties. N.Y. Penal Law §§ 250.00, 250.05 (McKinney 2012).
You may not record or share conversations that you are not a part of without the consent of at least one party.
However, New York law does make an exception in cases where the person or people communicating are doing so in an environment where they should not be under the expectation of privacy. New York v. Kirsh, 575 N.Y.S.2d 306 (N.Y. App. Div. 1991).
If you are a third-party and require consent from the parties taking part in the conversation, the Federal Communications Commission (FCC) states that you may gain consent to make a recording by:
- Getting verbal or written consent prior to the recording being made.
- A verbal notification being played before the conversation begins. (For example: “This phone call is being recorded for quality control purposes…”).
- An audible beep tone being repeated at steady intervals during the duration of the conversation.
New York Video Recording Laws
New York allows the installation of video surveillance systems for security purposes as long as the owner of the security system posts a conspicuous notice stating that a video surveillance system has been installed for security purposes. Also, the installation of such a system is legal if the system has been installed in a way that makes the visibility of the security system clearly and immediately obvious.
However, according to N.Y. Penal Law § 250.45, it is considered unlawful surveillance in the second degree to install an imaging device (e.g., video camera) in places where people have a reasonable expectation of privacy without the consent or knowledge of the individual being recorded. These are places such as bedrooms, changing room, fitting room, restroom, toilet, bathroom, washroom, or shower. For example, if you are hosting guests in your house, you are not allowed use surveillance systems to record them when they are in areas where they have a right to privacy (e.g., bedroom). It is also illegal to use an imaging device to view, broadcast or record:
- Under the clothing being worn by an individual without the consent or knowledge of such individual.
- Intimate or sexual parts of an individual without the consent or knowledge of such individual.
- The sexual acts of a person in a surreptitious manner.
N.Y. Penal Law § 250.05: The illegal recording of a conversation is considered a felony.
N.Y. Penal Law § 250.45: Unlawful surveillance in the second degree is considered a Class E felony which carries a sentence of 2 to 5 years or probation.
N.Y. Penal Law § 250.50: An offender who commits the crime of unlawful surveillance in the second degree and has prior convictions of the crime of unlawful surveillance in the first or second degree may be found guilty of unlawful surveillance in the first degree which is classed as a Class D felony and carries a sentence of 1 to 7 years or probation.
N.Y. Penal Law § 250.55: A person who spreads images of intimate or sexual parts of an individual that were obtained through unlawful surveillance may be found guilty of dissemination of an unlawful surveillance image in the second degree, which is classed as a Class A misdemeanor and carries a maximum jail term of 1 year or 3 years probation.