This post is co-authored with SOG faculty member Kristina Wilson and is cross-posted to the Coates' Canons blog. When and how can state and local government officials and employees record government meetings or their interactions with citizens? Does it matter if the recording is done openly or secretly? Recording may be tempting, particularly where there is a controversial matter at issue. The ability to record can be a useful tool, but there are several laws that government actors need to know if they want to use this tool legally and effectively. This post focuses on the issues surrounding government officials and employees recording oral communications outside of the law enforcement context. A later post will examine the issues surrounding video recording. Secret Recordings and Criminal Law. State law permits a person to record conversations to which they are a party. G.S. 15A-287(a); see also 18 U.S.C. 2511(2)(d). This “one-party” consent rule means that secret recordings only become problematic when the person recording is not party to the communication being recorded. The law also prohibits the knowing disclosure of communications obtained in violation of these rules. There are a host of exceptions, including for legally authorized wiretaps, operators of electronic communications services and radio, and other transmissions available to the public (among others). Apart from those exclusions, it is a class H felony to record the communications of others without the knowledge and consent of at least one party to the communication. This rule applies even to spouses within the marital home. [...]
Faculty Coordinators
