Can I press charges/sue someone for recording me without my consent?

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Can I press charges/sue someone for recording me without my consent?

I know mine is a 2-party consent state. I was talking to my neighbors last week and one of them secretly recorded our conversation. I know this information because a different neighbor told me that the first mentioned neighbors played the audio recording for her. They did not ask for my consent, nor did I have any knowledge of this recording prior to today. What are my legal rights in this situation? How can I make them delete the recording and any copies? Can I press charges or take them to court?

Asked on June 21, 2016 under Personal Injury, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Assuming that the issue of proof can be met, you can potentially bring both criminal charges and a civil lawsuit in this case. Of course, you may want to double check that your state is an all-party consent state. Even if it's a private conversation, you have to consider a reasonable expectation of privacy. How many people were in that area with you?

To illegally record someone without their consent is a crime in California, as well as a personal injury for which you can sue for money damages. But if you were recorded in a public or semi-public place like a street or restaurant, then you would be probably be deemed to not have had a "reasonable expectation of privacy" (i.e. that no one was listening in or overheard the conversation).

What Are the Penalties for Illegal Recording?

The exact penalties vary by state. In a 2-party consent state, offenders could face five years in jail or around $500 in fines. This is true whether it involves video recordings or phone conversations. It's seen as an invasion of privacy.

If it's a private party recording your conversation, it's also treated differently than if the recorder is a government agent. A police agent may need to follow wiretapping law and get a warrant. The fines could also be larger. If you're in a state where only one party has to consent, this doesn't apply unless there was some other measurable harm.

Keep in mind that a 2-party consent state isn't referring to the numbers. If you have 3 or 4 people in the recording, all parties have to consent. In Oregon, while in-person recordings require everyone's consent, Oregon is among one-party consent states for telephone conversations.

Should You Sue for Illegal Recording of Oral Communications?

A lot of how you move forward will depend on the case. What was the recorder's intent in recording your conversation? Was measurable harm done? Were you in a public place or a private area where you could expect some privacy? If you're talking to law enforcement officials, did they have authority to record you? 

If you take a telemarketing call or participate in certain events, they will tell you you're being recorded. If you stay in the conversation, you are giving your implicit consent. 

At this point, you should consult directly with an attorney in your area. It sounds like you were caught up in secret recordings you did not authorize when you may have had a reasonable expectation of privacy. You can discuss actual damages and how private laws apply to your case. After you go over all of the details of your case, they can best advise you further. An experienced attorney can assess criminal penalties and consent requirements to offer legal advice.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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