Fall 2008 a JournalisT’s Guide To TapinG ConversaTions 15
452 N.W.2d 785 (S.D. 1990); Midwest Motor Sports, Inc. v. Arctic Cat
Sales, Inc., 144 F.Supp.2d 1147 (D.S.D. 2001).
Using a hidden camera in a “private place” without consent is a
misdemeanor. s.d. CodiFied laWs § 22-21-1. A “private place” is
a place where one may reasonably expect to be safe from intrusion
or surveillance, but not a place to which the public has access. s.d.
CodiFied laWs § 22-1-2. Using a hidden camera in a hidden place is
punishable by one-year imprisonment in county jail, a $2,000 fine, or
both. s.d. CodiFied laWs § 22-6-2.
Tennessee
A person who is a party to a wire, oral, or electronic communica-
tion, or who has obtained the consent of at least one party, can lawfully
record a communication and divulge the contents of the recorded
conversation unless he has a criminal or tortious purpose. Tenn.
Code ann. § 39-13-601. Violations are punishable as felonies with
jail sentences of between two and 12 years and fines not to exceed
$5,000. Tenn. Code ann. §§ 39-13-602, 40-35-111.
Under the statute, consent is not required for the taping of a non-
electronic communication uttered by a person who does not have a
reasonable expectation of privacy in that communication. See definition
of “oral communication,” Tenn. Code ann. § 40-6-303.
Anyone whose communications have been unlawfully intercepted
can file a civil suit to recover the greater of actual damages or liqui-
dated damages of $100 per day of violation or $10,000, whichever is
greater. A plaintiff can also claim punitive damages, attorney fees, and
litigation costs. The statute of limitations for such a lawsuit is two
years. Tenn. Code ann. § 39-13-603.
Recording or disseminating a communication carried out through
a cellular or cordless phone, or disseminating the contents with
knowledge of their illegal origin, without the consent of at least one
party, can be punished as a felony with a potential prison sentence
of between one and six years and a fine not to exceed $3,000. Tenn.
Code ann. §§ 39-13-604, 40-35-111.
It is a misdemeanor to photograph, film, or observe a person with-
out consent where there is a reasonable expectation of privacy; when
the photographing, filming or viewing “would offend or embarrass an
ordinary person,” and when the filming is done for sexual purposes.
Tenn. Code ann. §§ 39-13-605, 39-13-607. Dissemination of a
photograph or videotape taken in violation of these provisions is a
felony. Tenn. Code ann. §39-13-605(2).
Texas
So long as a wire, oral, or electronic communication—including
the radio portion of any cordless telephone call—is not recorded for a
criminal or tortious purpose, anyone who is a party to the communica-
tion, or who has the consent of a party, can lawfully record the com-
munication and disclose its contents. Texas penal Code § 16.02.
Under the statute, consent is not required for the taping of a non-
electronic communication uttered by a person who does not have a
reasonable expectation of privacy in that communication. See definition
of “oral communication,” Texas Code Crim. pro. arT. 18.20.
A person whose wire, oral, or electronic communication is inter-
cepted or disclosed has a civil cause of action against the interceptor
or discloser. Texas Civ. praC. & rem. Code § 123.002. Such a person
is entitled to recover $10,000 for each occurrence, actual damages in
excess of $10,000, as well as punitive damages and attorney fees and
costs. Texas Civ. praC. & rem. Code § 123.004.
In addition, unlawful recording of a conversation or disclosure of
its contents with reason to know of the illegal interception is a felony
punishable by two to 20 years in prison and a fine not to exceed
$10,000. Texas penal Code § 12.33.
The U.S. Court of Appeals in New Orleans (5th Cir.) held in 2000
that a television station and reporter who obtained illegally recorded
tapes of telephone conversations, but who had not participated in the
illegal recording, could nonetheless be held civilly liable under the
federal and Texas wiretapping statutes. Peavy v. WFAA-TV, Inc., 221
F.3d 158 (5
th
Cir. 2000). The case was appealed to the U.S. Supreme
Court, along with two other cases raising similar issues. The Supreme
Court refused to hear the Texas case but decided in one of the other
cases, Bartnicki v. Vopper, 532 U.S. 514 (2001), that media defendants
could not be held liable for publishing information of public concern
that was obtained unlawfully by a source where the media were blame-
less in the illegal interception. Following the Bartnicki decision, the
parties in the Peavy case settled out of court.
Utah
An individual legally can record or disclose the contents of any
wire, oral or electronic communication to which he is a party, or
when at least one participant has consented to the recording, unless
the person has a criminal or tortious purpose in making the recording.
uTaH Code ann. § 77-23a-4.
Under the statute, consent is not required for the taping of a non-
electronic communication uttered by a person who does not have a
reasonable expectation of privacy in that communication. See definition
of “oral communication,” uTaH Code ann. § 77-23a-3.
Unlawful interception of communication, including disclosure of
the contents of a communication with reason to know of the illegal
origin, is a felony—except that when the communication consists of
the radio portion of a cellular telephone call, it is a misdemeanor. Civil
liability for unlawful interception can include the greater of actual
damages, mandatory damages ranging from $50 to $1,000, depending
on whether it is a first or subsequent offense, $100 per day of violation,
or $10,000. Equitable or declarative relief is also available under the
statute. Civil actions are governed by a two-year statute of limitations.
uTaH Code ann. § 77-23a-11.
Installing a hidden camera or audio recorder to tape a person in a
“private place” without consent is a misdemeanor. uTaH Code ann.
§ 76-9-402. a “private place” is a place where one may reasonably
expect to be safe from intrusion or surveillance. uTaH Code ann.
§76-9-401.
Vermont
There are no specific statutes in Vermont addressing interception
of communications, but the state’s highest court has held that surrepti-
tious electronic monitoring of communications in a person’s home is
an unlawful invasion of privacy. Vermont v. Geraw, 795 A.2d 1219 (Vt.
2002). The court decided that the overhearing of a conversation in a
parking lot is not unlawful because the conversation was “subject to the
eyes and ears of passersby.” Vermont v. Brooks, 601 A.2d (Vt. 1991).
Virginia
An individual can record or disclose wire, oral, or electronic com-
munications to which he is a party, or if one party to the communica-
tion consents. Otherwise, it is a felony. va. Code ann. § 19.2-62.
A lawyer’s recording of a telephone conversation with the consent
of one, but not all, parties to the conversation was found to be legal,
though unethical, under Virginia law. U.S. v. Smallwood, 365 F.Supp.2d
689 (2005).
Under the statute, consent is not required for the taping of a non-
electronic communication uttered by a person who does not have a
reasonable expectation of privacy in that communication. See defini-
tion of “oral communication,” va. Code ann. § 19.2-61; Belmer v.
Commonwealth, 553 S.E.2d 123 (Va. App. 2001).
Criminal penalties for violating the law include imprisonment for
one to five years or, at the discretion of a jury or judge, confinement
in jail for up to 12 months and a fine of not more than $2,500, either
or both. va. leGis. 579. A civil cause of action is authorized by stat-
ute for $100 per day of violation or $1,000, whichever is greater. va.
Code ann. § 19.2-69. Punitive damages, attorney fees, and litigation
costs can be recovered under the statute as well. va. Code ann. §
19.2-69.
Washington
All parties generally must consent to the interception or record-
ing of any private communication, whether conducted by telephone,
telegraph, radio or face-to-face, to comply with state law. WasH. rev.
Code § 9.73.030. The all-party consent requirement can be satis-
fied if “one party has announced to all other parties engaged in the
communication or conversation, in any reasonably effective manner,