Article · Technology

Cameras, Consent, and the Law of Recording People

Type
Article
Jurisdiction
National
Date
2024-12-07
Topic
Technology

A smartphone holds two legally distinct instruments--a camera and a microphone--and the law governs each on separate tracks, then adds a third body of rules for what you publish afterward. This UpLaw research article maps the whole field, anchored in the reasonable-expectation-of-privacy test from Katz v. United States and the four common-law privacy torts. It untangles the one-party versus all-party wiretap-consent split under the Electronic Communications Privacy Act and its state analogs, the federal video-voyeurism crime at 18 U.S.C. 1801, the First Amendment right to record police after Glik v. Cunniffe, and the special regimes for landlords, employers, biometrics, drones, and nonconsensual intimate imagery. It explains how a lawful recording becomes admissible evidence and how an unlawful one becomes worthless. Because audio-consent rules vary sharply from state to state and change often, the article repeatedly flags where local law controls. Worked hypotheticals throughout show how the same swipe of the same camera can be lawful, tortious, or a felony depending on place, expectation, sound, and publication.

Cameras, Consent, and the Law of Recording People

Technology > Privacy | Published 7 December 2024 - Updated 26 January 2025 | UpLaw - uplaw.us

A phone is two legal instruments in one shell--a camera the law treats generously and a microphone it treats with suspicion--and what you do with the file afterward is a third question again. This article maps how the reasonable expectation of privacy, the wiretap statutes, the voyeurism crimes, the First Amendment, and the biometric and publicity regimes all bear on the ordinary act of pointing a lens at another human being.

Keywords: recording consent laws, reasonable expectation of privacy, Wiretap Act, ECPA, one-party consent, all-party consent, video voyeurism, right to record police, Glik v. Cunniffe, nonconsensual intimate images, TAKE IT DOWN Act, BIPA, right of publicity, drone surveillance, intrusion upon seclusion, recording as evidence

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