Can I Sue Someone for Recording Me?
You can probably sue someone who records you without permission on private property, or when you were expecting privacy. But suing someone for recording you on public property, or when they were a party to the conversation, is more difficult.
Whether you are successful with the case depends on where you are, what the recorder does, how the recording is used, and other factors.
Common Communication Recording Situations
Being recorded might sound like something out of a spy movie, but it happens more than you think.
Video recording or audio recording might occur when:
- Someone films in a public space, like the gym
- Someone records a business meeting over the phone
- You call a help desk or customer service line (they need to warn you by saying something like, "this call may be monitored for quality assurance and training purposes")
- You want proof of a crime
- A reporter interviews you "on the record"
- You walk in and out of businesses that have security footage
- You use a phone app or social media
- Someone has a video doorbell or security system
- There are hidden cameras or "nanny cams"
- Courts order a mobile phone service to monitor or listen to your phone calls
- You are at a concert or play and want to capture the performance
Not all these situations are legal. The law involved with recording is commonly called "wiretapping law," which covers all forms of electronic communication, including cellphones, emails, and cameras.
Intercepting these communications (like recording someone else's phone call) on purpose is a crime except for very specific exceptions, and you cannot share or use the content of these communications.
Federal Recording Laws and Your Right to Privacy
Everyone has rights to privacy and security in their homes under the Fourth Amendment and the Federal Wiretap Act. Electronic surveillance and the laws surrounding it have evolved over time and will continue to evolve.
Under federal law, you have a "reasonable expectation of privacy" in your home. However, this law allows for one-party consent. This means one of the people involved in a conversation can give permission for everyone else to be recorded, even in your own home.
You don't have to warn visitors to your house that you have a "nanny cam" in the living room, and they can record your conversations around the dinner table in your home. As long as one person consents to the recording (like the person doing the recording), it is legal in some states.
Video vs. Audio Recording Laws
Video and photos do not always fall under the Wiretap Act, but you often still have rights under privacy laws. Recording someone's video Skype session is considered electronic communication and is illegal without consent, but filming someone running on the beach is legal.
Video recordings will also depend on your intention. If you intend to record someone's conversation or activity when they should reasonably expect privacy, then you could be in trouble.
You can learn more about online privacy and technology laws to see how your information can legally be recorded and shared.
State-Specific Recording Laws
The state you live in may have separate secret recording or communication interception laws. Your state laws will govern the situation (unless federal law protects you more substantially).
For example, suppose your state does not have strong laws regarding recording conversations. In that case, you likely have stronger protection under the Federal Wiretap Act. You can learn what exactly defines electronic communication and recording in 18 U.S.C. section 2510.
When Can I Sue Someone for Recording Me?
You should discuss the situation with an attorney first. Your case may not be a wiretapping violation, but it could violate privacy laws or a criminal statute.
You may have a strong lawsuit on your hands if:
- You are suing law enforcement and they did not have a warrant or probable cause for search and seizure
- Someone recorded you while you were on your private property
- Someone is stalking or spying on you (which might call for a restraining order or order for protection)
- The recording occurred in a private space, such as a locker room or doctor's office
- Someone conducts illegal eavesdropping with a recording device or by using tools to listen under doorways and walls
- You reasonably expected your conversation to be private (such as calling someone on the phone from your kitchen table)
When Can't I Sue Someone for Recording Me?
You waive your rights to privacy in many situations — sometimes without even knowing it. You likely do not have a strong lawsuit if:
- You are in a public space like a city park or parking lot
- A private conversation has the consent of all parties or one-party consent (depending on your state laws)
- You are in private business within a public place like a mall or business (for example: someone films a fight at a grocery store)
- The recorder has a warrant or similar permission to record you
- You are at work or using work devices. Your employer can make their own privacy and recording policies.
Some common examples of waiving your rights include:
- If you are attending a movie premiere and they tell you they are recording the event. You give your consent by attending.
- If one person says recording a meeting is okay, you may be recorded without your knowledge in one-consent states.
- If you brag loudly about cheating on a test, then you give up your expectation of privacy by speaking about it loudly in public.
Penalties for Illegally Recording Someone
The person recording you could face five years in jail or prison or a $500 fine under federal criminal law. Your state may have harsher penalties or classify it as a misdemeanor offense.
While you cannot send someone to jail in a civil lawsuit, you can ask for money (called damages) when you sue them.
Two-Party Consent States
To record conversations in these states, you need permission from every person involved:
- New Hampshire
Note: In Oregon, telephone calls are one-party consent but in-person recordings require the consent of all parties.
Because these states have stronger privacy than federal law, you can expect these state laws to trump federal law.
Need Legal Advice on an Illegal Recording?
If police officers search your emails illegally or someone takes a secret recording of a telephone call, you could sue under the invasion of privacy laws.
These situations are nuanced and depend on many factors, so a law firm that works with civil lawsuits or privacy crimes is the best place to start.
Contact a qualified civil rights attorney to help you protect your rights.