Is it legal to video record someone without their knowledge

As a Houston family law attorney who also practices some criminal defense case, one of the common questions I get is “can I record a conversation with someone if I don’t have their consent?” or “Can I videotape someone without their consent?” The quick answer is yes, in Texas you can, but here are more details you need to know:

One of the common misconceptions people have is because they do not have someone’s consent to record a conversation, that they cannot record them or that it would be illegal to record them. Some people think that while it may not be illegal, they wouldn’t be able to use the recording in court as evidence against the other person. This is not true, at least in Texas it is not.

You must be a party to the conversation to be able to record someone legally without their consent.

While some in some states it is illegal to record someone without their consent, in Texas you are allowed to record AND use the recording as evidence in court or criminal investigation, as long as you are a party to the conversation. This basically means that you CANNOT record (either by voice or video) other people’s conversations if you are not in that conversation. But if you are involved or part of the conversation or discussion, you are allowed to record the conversation without even having to notify the other person (or people if more than one person.)

Not only do you not need to get someone’s consent to record them, you don’t even have to notify them, as long as you are a party to the conversation.

So does this mean I can record someone without even telling them and still be able to use it as evidence against them in a potential lawsuit or investigation?

Yes, as stated above, you may record someone without their consent or knowledge AND be able to use it against them in court. In fact, this is one of the more useful ways to gain advantage in your case over the other party. For example, if the other person is talking to you in an aggressive or harsh tone, if they are hitting you, or saying something that is self-discriminating, recording them without notifying them can help bring justice, show the truth, and give you an advantage in court depending on the type of case you have. In family law cases, it can help you get a disproportionate share of assets (more on this to be discussed in other blogs), or help you get spousal support. In custody cases, it can help you in your battle to gain primary or sole custody and limit the other parent’s parental rights and visitations. In criminal cases, it can help exonerate criminal allegations against you, or if you are the victim, help arrest and convict the perpetrator.

Can camera footage be used in a divorce case?

Yes. If you are going through a divorce, or are in a shaky relationship in which you think a divorce may come soon, having security cameras in the house is a smart idea. I am in no way advocating purposely putting someone in a situation to hit the record button, but to assure you always stay alert and safe.

Contact Us

If you are looking for a family, personal injury, or criminal defense attorney or are simply interested in knowing more about recording laws, or any other legal questions, call or email me, Amir Tavakkoli, Houston attorney from the A.T. Law Office. My office phone number is 832-800-5590 and the email is . While we primarily practice in Harris and Montgomery County, we also travel to other counties such as Liberty County, Chambers County, Galveston County, Ford-Bend County, Waller County, Brazoria County, etc. Contact the A.T. Law Office by calling (832) 800-5590 for a free consultation.

Tempted to secretly record that harassing boss or your vindictive ex the next time they launch into a verbal tirade against you? Incontrovertible evidence is worth a lot but what is the cost? That depends on where you’re standing, literally, when you make

Tempted to secretly record that harassing boss or your vindictive ex the next time they launch into a verbal tirade against you? Incontrovertible evidence is worth a lot but what is the cost? That depends on where you're standing, literally, when you make that recording.

Federal and State Recording Laws

The U.S. and the states have their own laws governing the legality of surreptitious recording of oral, telephonic, and other communications. A person's secret taping of a conversation is governed by the laws of the state in which she is making the recording unless the federal law is more protective of privacy.

The Federal Wiretap Act

In response to the public outcry about the government's covert recording of the activities of political activist groups in the 1960s, Congress enacted the Wiretap Act as part of the Omnibus Crime Control and Safe Streets Act of 1968. (18 U.S.C. § 2510.)

Illegal Recording Under the Wiretap Act

Under the federal Wiretap Act, it is illegal for any person to secretly record an oral, telephonic, or electronic communication that other parties to the communication reasonably expect to be private. (18 U.S.C. § 2511.)

Exceptions

There are two huge exceptions built into this law that have the capacity to gut it of effect. A recording otherwise in violation of the Wiretap Act is legal if:

• one person to the conversation consents to the recording, or
• the person making the secret recording is authorized by law to do.

(18 U.S.C. § 2511.) In practice, this means that recording a conversation is legal if the person making the recording is a party to the conversation (and, therefore, consents to the recording). This creates a rather large loop-hole.

Reasonable Expectation of Privacy

The Wiretap Act (as well as each state law governing secret recording of conversations) protects only those communications that the individuals being secretly recorded reasonably expect to be private. Whether one has a reasonable expectation of privacy in a given situation depends upon the context: Was the conversation in a public or private location? Did the individual being recorded treat the subject matter as private? A person who is bragging at a party about cheating a friend in a business deal cannot later object to the introduction of a recording of this admission as evidence in a lawsuit filed by his ex-friend.

Consent to Recording

The federal Wiretap Act and most state laws governing secret recordings (see below) allow covert taping where one party (or more, in some states) consents. As noted above, the consent can be made implicitly when one party to the communication is recording another; it can also be made when a consumer stays on a "help" line after receiving the obligatory "this conversation may be recorded for quality assurance purposes." Or, consent can be explicit, as when a reporter's source agrees to speak "on the record" for a news story.

Preemption of Less Protective State Laws

The federal Wiretap Act preempts all state laws that are less protective of privacy than it is. Thus, any state law that would allow secret recording of any communication by anyone and without the consent of any party would be void and preempted by the federal law.

More Protective State Laws Not Preempted

But, state laws that afford greater privacy protection to citizens than the Wiretap Act are not preempted by the federal law and their provisions will be enforced.

In twelve states, no person may record a private communication without the consent of every party to that communication. Thus, no surreptitious recording is allowed (with exceptions for law enforcement officials who have obtained warrants to make such recordings). The states with these laws are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.

Penalties

Anyone who violates federal or state recording laws may face jail time, a fine, or even an order to pay damages in a civil lawsuit.

Criminal Penalties

A person who violates the federal Wiretap Act faces a possible sentence of up to five years in prison, a fine of $500, or both. (18 U.S.C. § 2511.)

A person who violates a state law prohibiting secret recording of conversations will face the penalty prescribed by that law. Virtually every state imposes some criminal penalty for violations of its secret recording law. For example, a person violating California's law faces a possible misdemeanor conviction, a one-year prison sentence, and a $2,500 fine. (Cal. Penal Code § 631.)

Civil Penalties

In most states where taping someone who hasn't consented to the recording is illegal, the recorded person can sue the individual doing the recording. Damages are available to a person who wins such a civil lawsuit.

See a Lawyer

Secret recordings carry real risks, and the repercussions vary from state to state. Consult a criminal defense lawyer in your state to find out what the law is and what the possible penalties are for violations before you consider secretly recording any conversations.