Never Worn

“Body-Worn” Surveillance Cameras: Are They Legal?

Take a look around the internet for a just a minute to see all of the amazing new technology in “body-worn” surveillance cameras. Hats, neckties and pens can all contain video and/or audio recorders.  And the slimmest of digital audio recorders can be slipped into a pocket without detection.

How are these “body-worn” surveillance gadgets different from other covert surveillance tools from a legal standpoint?

Video recording (without sound) is usually okay – even if the camera is hidden on your body somewhere – unless the person(s) being recorded has a reasonable expectation of privacy, the taping is done for some illegal purpose or there was trespass to record the video. If the space in which you are recording is a public place, most courts will find that there is no reasonable expectation of privacy by anyone using the space.

There is a federal law which makes it a crime to secretly capture photo or video images of people in places and situations in which they have an expectation of privacy.  Most states similar laws.  These laws are often referred to as “video voyeurism” statutes. 

These laws make it a crime to secretly record or distribute images of people in places where they have a reasonable expectation of privacy, such as bathrooms, dressing rooms, locker rooms, hotel rooms and tanning salons. The federal law prohibits anyone from recording images of an individual’s “private areas” without consent when that individual has a reasonable expectation of privacy.  So, stay away from the bathroom and someone’s private bedroom when you’re sporting that necktie camera!

If the “body-worn” surveillance camera records sound as well as video (like the Pen Camera with audio currently available), you must comply with federal and state wiretapping and eavesdropping laws.  You will need consent of one or all parties to any recorded conversation, depending on your jurisdiction. The federal wiretapping statute allows phone calls and other electronic communication to be recorded with the consent of at least one party to the conversation. 

This means that if you are one of the people taking part in the conversation (and using your new Pen DVR), the conversation can be recorded (because one person – you – has consented to the recording).  If you are not taking part in the conversation or if you choose to leave that Pen DVR sitting on top of desk while you leave the room, at least one of the people in the conversation must know about and consent to the recording.

Just to make things a little more confusing, each state and territory has its own statutes regarding the recording of conversations.  Most state wiretapping and eavesdropping laws are based upon the federal law and allow recording with the consent of one party to the conversation (usually you in a “body-worn” hidden camera situation). 

The states which allow “one party consent” recording of oral communications are: Alaska, Arkansas, Colorado, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin and Wyoming.  The District of Columbia also allows people to record conversations with the consent of only one party.  Nevada has a one party consent statute but there is some question as to how the law should be interpreted by the courts – it could be considered an “all party consent” state.

The states which definitely require all parties to a conversation to consent before it can be recorded are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington.  (In California, there is an exception – you can record a conversation with the consent of only one party if certain criminal activity (kidnapping, extortion, bribery or a violent felony) is involved.) In all-party-consent states, you will need to stick with video surveillance only if you need to stick with the hidden nature of the surveillance.

In the 37 one-party-consent states, a “body-worn” hidden camera may allow you to be more flexible in your surveillance in that audio can accompany your video – because you will be present for the whole conversation and recording and only your consent is required. For the finer points of your own state’s laws and requirements, you should always consult with an attorney.

About the Author

Sharon Macdonald is a high-tech security specialist. She is an expert in body-worn surveillance systems and techniques. See what she recommends to protect your family in her blog

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