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5 Things to Consider Before You Hit Record

Advances in technology have made it very easy to record what people say. Not so long ago, the decision to record a phone call or personal meeting required advance planning. People did not walk around with recording equipment at the ready, so a decision to record usually required a specific purpose and a plan to carry it out. But the same way we now walk around with a camera, we also walk around with a video recorder and a digital audio recorder…and many people don’t think twice about using them. And that can lead to trouble.

Here are five things to consider before recording other people:

  1. General wiretapping law in Texas:

Texas uses the “one-party consent” rule, which makes it illegal to intercept or record any “wire, oral, or electronic communication” unless one of the parties to the conversation consents to the recording. Texas Penal Code § 16.02. That means that, in Texas, you may record a conversation or phone call if you are a party to the conversation or you get permission from one of the parties to the conversation in advance. Failing to do so could subject you to both criminal prosecution and civil liability. Id.; Texas Civ. Prac. & Rem. Code § 123.002.

  1. Recording oral conversations in public places:

The wiretapping law has some grey areas when the recording happens in public places. The one-party consent rule does not apply to the recording of an oral conversations in public places and under circumstances where the speakers have no expectation of privacy. So, in a public restaurant, you can record the conversation of the people at the next table without consent if it is loud enough to be heard without enhanced listening equipment.  But to record people sitting in the corner of that restaurant, speaking softly and looking around to make sure no one can hear them, likely would require consent.

  1. Video with audio counts:

The Texas wiretap statutes do not apply to the capturing of video. But video recordings that also capture sound count as both video and audio recordings. In other words, anything you would not be able to do with an audio recorder you can’t do with a video recorder that captures sound. On its face, this application is straightforward. But newer devices make following it problematic. Many people have security systems that record audio and video on DVRs or the cloud. And they often are set up by security companies that either don’t know or play loose with the legal restrictions. Even more people have video door bells that capture audio and video whenever someone passes by. Many people try to address the problem by posting a sign saying that the “property is monitored” or that “you may be recorded.” But in Texas, notice is not the same thing as consent. At a minimum, users should evaluate how and where their recording devices are capturing audio and adjust the settings accordingly.

In addition, many such devices shift the burden of following the law back to the user. Ring—a major player in the video doorbell market—includes under its terms and conditions the following statement:

Privacy and other laws applicable in your jurisdiction may impose certain responsibilities on you and your use of the Products and Services. You agree that it is your responsibility, and not the responsibility of Ring, to ensure that you comply with any applicable laws when using the Product and Services, including but not limited to:

  • Any laws or regulations relating to the recording or sharing of video or audio content, and/or
  • Any laws or regulations requiring that notice be given to or that consent be obtained from third parties with respect to your use of the Products or Services.

. . . If your use of the Service or any Product is prohibited by applicable laws, then you aren’t authorized to use the Service. We can’t and won’t be responsible for your using the Service or any Product in a way that breaks the law.

 

  1. You can consent for your children—but not for your spouse:

Under Texas law, a parent can consent for his or her child. So parents can legally record their child’s conversation or phone call without the child or any of the other parties knowing about it.  But a spouse cannot consent for the other spouse. The case law is filled with examples of married people getting in big trouble for secretly recording their spouse’s conversations.

  1. For phone calls, make sure no one is out of the state:

You need to make sure you are following all the applicable laws. Each state has its own laws governing wiretapping. Following the Texas law is enough, so long as all the participants being recorded are in Texas. But often phone calls are between people in different states and you need to make sure that you are not running afoul of a state with stricter notice and consent requirements. In those cases you should play it safe and get the consent of all parties.