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Don't Be Stupid With Your Smartphone Video & Audio Recording

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With cell phones increasingly used to record high quality video and audio of people in public, it's important to know the extent of the right to record them. While it's generally OK to record others, there's point where the right of privacy puts up a "stop sign."

New Jersey is a "one-party consent" state, meaning that under the New Jersey Wiretapping and Electronic Surveillance Act, it's illegal to record a private, in-person or telephone conversation unless one party consents. This means that if you are a party to the conversation yourself, you can record it without telling the other person or people involved. But without the consent of at least one of the people involved, it's illegal to record it and to distribute or use the audio recording. Anyone who violates these parts of the Wiretapping Act is guilty of a third degree felony and may also find themselves sued for money damages and legal fees.

Our courts, though, have held that where the parties to the conversation did not have a "reasonable expectation of privacy," it may be recorded without breaking the law. So one court decision found that a conversation between two police officers during a traffic stop alongside a highway could be recorded without their permission, because they were talking in a place "more akin to an open, accessible place than an enclosed, indoor room." Another example is making an audio and video recording of a public meeting.

You should know that the Wiretapping Act does not apply to videos or photos. Generally, it's legal to videotape or photograph people while they appear in public areas. But both New Jersey and federal law make it a crime to videotape or photograph a third party who is nude or engaging in sexual activity, without their consent, in a place in which he or she enjoys a reasonable expectation of privacy, such as a home, a bathroom stall, or a gym locker-room. A violation of this federal law, the Video Voyeurism Prevention Act of 2004, is punishable by fine and imprisonment. Under the New Jersey version of the law, a person whose privacy was invaded can sue for money damages.

The videotaping or photographing of a person can result in civil liability for a wanton photographer. For example, someone who believes that their privacy has been infringed because of another's photograph or taping, may sue the photographer for "intrusion or public disclosure of private facts." Both types of claims involve analysis of whether the person being recorded had a "reasonable expectation of privacy." Intrusion happens when someone physically invades the privacy of another in a way that would be offensive to a reasonable person, such as using a telegraphic lens to photograph someone in their bedroom. Public disclosure of private facts happens when the "intruder" learns of facts that are both private and offensive and circulates them to the public.

You should only use your cellphone or other device when the person you're recording is in a public place and have no expectation of privacy. Likewise, when recording the audio of a conversation, you should make sure that at least one party to the conversation consents. Moving forward, people should be aware of a bill currently before the New Jersey Assembly Judiciary Committee that, if passed, would change the Wiretapping Act to require all parties in a conversation to consent to its recording, effectively changing New Jersey from a "one-party consent state" to an "all-party consent state." With the collaboration of Connor Turpan, Rutgers School of Law Newark candidate for a JD degree in May 2016 and Associate Editor on the Rutgers Computer and Technology Law Journal

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