Updated March 24, 2016
Take a look around the internet for a just a minute to see all of the amazing technology in "body-worn" hidden cameras. Watches, pens and neckties can all contain video and/or audio recorders. And the slimmest of digital audio recorders can be slipped into a pocket without detection.
How are these surveillance gadgets and cameras that you wear different from other covert surveillance tools from a legal standpoint?
Video recording (without sound) is usually okay – even if the camera is hidden on your body somewhere – unless the person(s) being recorded has a reasonable expectation of privacy, the taping is done for some illegal purpose or there was trespass to record the video. If the space in which you are recording is a public place, most courts will find that there is no reasonable expectation of privacy by anyone using the space.
There is a federal law which makes it a crime to secretly capture photo or video images of people in places and situations in which they have an expectation of privacy. Most states similar laws. These laws are often referred to as "video voyeurism" statutes.
These laws make it a crime to secretly record or distribute images of people in places where they have a reasonable expectation of privacy, such as bathrooms, dressing rooms, locker rooms, hotel rooms and tanning salons. The federal law prohibits anyone from recording images of an individual's "private areas" without consent when that individual has a reasonable expectation of privacy. So, stay away from the bathroom and someone's private bedroom when you're sporting that Watch Camera!
If the "body-worn" hidden camera records sound as well as video, you must comply with federal and state wiretapping and eavesdropping laws. You will need consent of one or all parties to any recorded conversation, depending on your jurisdiction. The federal wiretapping statute allows phone calls and other electronic communication to be recorded with the consent of at least one party to the conversation.
This means that if you are one of the people taking part in the conversation, the conversation can be recorded (because one person – you – has consented to the recording). If you are not taking part in the conversation or if you choose to leave that Spy Pen sitting on top of desk while you leave the room, at least one of the people in the conversation must know about and consent to the recording.
Just to make things a little more confusing, each state and territory has its own statutes regarding the recording of conversations. Most state wiretapping and eavesdropping laws are based upon the federal law and allow recording with the consent of one party to the conversation (usually you in a "body-worn" hidden camera situation).
The states and territories requiring the consent of at least one party to conversation before an audio recording may legally be made are: Alabama; Alaska; Arizona; Arkansas; Colorado; Delaware; the District of Columbia; Georgia; Hawaii (allows one-party consent for audio recordings, but requires two-party consent if the recording device is located in a "private place"); Idaho; Illinois (allows one-party consent for electronic communications); Indiana; Iowa; Kansas; Kentucky; Louisiana; Maine; Minnesota; Mississippi; Missouri; Nebraska; New Jersey; New Mexico; New York; North Carolina; North Dakota; Ohio; Oklahoma; Rhode Island; South Carolina; South Dakota; Tennessee; Texas; Utah; Virginia; West Virginia; Wisconsin; and Wyoming.
But 14 states require the consent of all parties to the conversation under most circumstances. You will sometimes hear these states referred to inaccurately as “two party consent” states. If there are more than two people involved in the conversation, all must consent to the recording.
These states are: California; Connecticut; Florida; Illinois (for in-person conversations); Maryland; Massachusetts; Michigan; Montana; Nevada (the Nevada supreme Court held that its statute requires two-party consent Lane v. Allstate ins. Co., 969 P.2d 938 (Nev. 1998)); New Hampshire; Oregon (for in person communications); Pennsylvania; Vermont (which has no statute, but the state Supreme Court has ruled that the surreptitious recording of a Defendant in a conversation with police inside his residence violated his reasonable expectation of privacy); and Washington.
In the one-party-consent states, a "body-worn" hidden camera may allow you to be more flexible in your surveillance in that audio can accompany your video – because you will be present for the whole conversation and recording and only your consent is required. For more detail on the legalities of Audio and Video recording Laws, see our previous articles. And for the finer points of your own state's laws and requirements, you should always consult with an attorney.
This article is meant as a general introduction to the state of the law concerning electronic surveillance and its implications. This article is for general informational purposes only and does not constitute legal advice. You are strongly advised to seek legal advice from a lawyer in your state when you are confronted with a legal issue in this area..
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