What Dealers Need To Know: Why can I record audio on my iPhone but not on a hidden camera?

In October, we talked about the Wiretap Act and the due diligence that is required as a dealer in the sale of personal security products.

This month, we are going to address a question we hear all the time. And as dealers, we suspect you too, are asked to address this with your customers.

There are various forms of the question: Why doesn’t my hidden camera record audio? Can’t I simply record a conversation from my iPhone? Why can I record audio on my iPhone but not my hidden camera?

The answer varies when you consider Federal versus state laws, and when you take into consideration the design and purpose of the device. As long as one party consents to the recording of a conversation, you are not breaking any Federal laws. It gets stickier when you talk about state-by-state laws.

If you live in a one-party consent state, then the state law mirrors the Federal law. Though the person not giving consent must also live in a one-party state. And even so, your recording may not be admissible in a court of law. Two party consent states require both individuals to be aware that they are being recorded.

Thirty-eight states and the District of Columbia are one party consent states. In the other 12 states, you must have consent of all parties to a conversation in order to make a recording.

The Intent of Design Is What Matters

You may record with an iPhone because it is not designed to be hidden. A phone is just that – it’s used for audio purposes and also has recording capabilities.

A hidden camera is designed to be hidden and therefore falls under laws governing surreptitious recording. Let’s say there was a voice recorder sitting on the table between two people. It’s not disguised; it looks like a tape recorder. You wouldn't have to be told that it could record something - that's what it's designed to do.

Now what if there was a plant sitting between the same two people. Anyone can see it’s a plant. What do you think might be happening? Well, nothing. Because it’s a plant. The intent of its design is not to record anything. But what if the customer slipped the tape recorder inside the plant? Now it's a hidden recorder! Simply by putting the recorder inside, out of sight, the intent has changed. That intent is what makes that recorder suddenly fall under the jurisdiction of privacy and wiretap laws. What if it were a video recorder that just happened to also record audio? It doesn't matter. If it records audio and is hidden in any way it falls under the jurisdiction of privacy and wiretap laws.

Dealers can sell tape recorders all day long and encourage people to record conversations with them. They cannot encourage customers to put audio recorders in plants and record conversations. Customers can buy tape recorders and record conversations with them. But when customers put recorders in plants their intent of use has changed. At that point they are intending to make a hidden recording. By selling any recorder already hidden in a plant, dealers are acknowledging that the use of the device is to record something without another person’s knowledge. In the US it is never legal for a civilian to make a surreptitious audio recording, even if the audio is just being picked up on video.

So, as law-abiding dealers, you certainly don’t want to sell hidden devices that could record audio. Customers should be aware of the implications should they choose to purchase one. If you do sell audio recoding devices, the products must be designed and clearly marketed as an audio recorder.

At KJB Security Products, we do not sell hidden audio recording equipment domestically, except to law enforcement. Only law enforcement can use audio/camera recording. Additionally, we include the following disclaimer on all marketing materials:

Some of the Product(s) purchased/sold by KJB are subject to the jurisdiction of the U.S. Wire and Communications Act (18 United States Code §§ 2510-2522) (Act). The products include those with surreptitious listening devices, which are regulated by the Act. Additionally, the laws of some states, counties, cities or localities may prohibit the possession and/or use of some of the these products. It is the responsibility of the buyer to ascertain, understand, and obey any and all applicable local, state, and federal laws regarding possession and/or use of any KJB product. Diversion or re-export contrary to U.S. law is prohibited. ALL OFFERS VOID WHERE PROHIBITED BY LAW

This article is in no way to be considered legal advice. Please review the laws in your own state and seek professional legal consultation as needed.