Is it illegal in NY to record a conversation in which you are not a part of, but takes place on your property?

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My bro-in-law has a lot of problems with his older brother. To make a long story short, a few times the brother threatened the life of my bro-in-law, and when we informed the police, the cops said "get it on tape". Fast forward a few weeks, the brother came with the grandmother to my bro-in-law’s house to store some things in the garage, and my bro-in-law left a recording device in the garage. It recorded the brother saying several times he was going to kill my bro-in-law by slitting his throat, etc. Now the same cop says the recording may be illegal. How is this possible if the conversation was on my bro-in-law’s property in his garage? Will the tape hold up in court? My bro-in-law is trying to get a restraining order against his older brother, and now that we have absolute proof this scumbag is a psycho, it’s horrible to think that we won’t even be able to use it as evidence.

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7 Responses to Is it illegal in NY to record a conversation in which you are not a part of, but takes place on your property?

  1. Emily says:

    You cannot record anyone without their prior knowledge. If it is on your property you might be able to post signs that say there are recording devices on the property.

  2. George C says:

    Because the cops told him to get it on tape it is not admissible in court, how ever you can obtain evidence on ur own, as long as a officer never said anything to you about it.

  3. Gentle Giant says:

    It is only illegal; if he recorded it on the phone or such while his brother did not know it was being recorded..
    He is free to record anything he wants on his own property where no one has any right to an expectation of privacy.

  4. sensible_man says:

    Unless all parties are advised of the recording, it is inadmissable in court. The cop was wrong.

  5. next? says:

    You need to hire an attorney ASAP and leave the tape to him. It can be used as evidence and the cop you spoke with may just be misinformed. When someone threatens another person’s life and you have it on tape, that is all you need.

  6. danny14551 says:

    In NY it would not be allowed in to court or any legal proceedings since you can not record someone (your property or not) without them knowing about it.

  7. Quad Kings says:

    Below is the law regarding recording conversations for NY. Hope it helps. Also, I have provided some general info that may be helpful. good luck.

    N.Y. Penal Law §§ 250.00, 250.05: It is a Class E felony to overhear or record a telephonic or telegraphic communication if one is not the sender or receiver, or does not have the consent of either the sender or receiver. It also is a crime for someone not present to overhear or record any conversation or discussion without the consent of at least one party to that conversation.

    Cordless telephone conversations that are partially broadcast over ordinary radio waves are protected by the wiretapping and eavesdropping laws and require the same consent for recording as any other communication. New York v. Fata, 559 N.Y.S.2d 348 (N.Y. App. Div. 1990).

    State courts have held that newspapers that published transcripts of an illegally recorded telephone conversation were subject to civil liability when "the newspapers knew they were dealing with recorded conversations between unconsenting parties." Natoli v. Sullivan, 606 N.Y.S.2d 504 (N.Y. Sup. Ct. Oswego County 1993), aff’d, 616 N.Y.S.2d 318 (N.Y. App. Div.
    1994).

    ___
    Generally, you may record, film, broadcast or amplify any conversation where all the parties to it consent. It is always legal to tape or film a face-to-face interview when your recorder or camera is in plain view. The consent of all parties is presumed in these instances.

    The use of hidden cameras is covered only by the wiretap and eavesdropping laws if the camera also records an audio track. However, a number of states have adopted laws specifically banning the use of video and still cameras where the subject has an expectation of privacy, although some of the laws are much more specific. Maryland s law, for example, bans the use of hidden cameras in bathrooms and dressing rooms.

    Whether using an audiotape recorder or a hidden camera, journalists need to know about the limits to their use.

    Criminal purpose. Federal law requires only one-party consent to the recording and disclosure of a telephone conversation, but explicitly does not protect the taping if it is done for a criminal or tortious purpose. Many states have similar exceptions. Employees of a "psychic hotline" who were secretly recorded by an undercover reporter working for "Primetime Live" sued ABC for violation of the federal wiretapping statute, arguing that the taping was done for the illegal purposes of invading the employees privacy. The federal appellate court in Pasadena (9th Cir.) affirmed the dismissal of the employees claim in September 1999. According to the court, an otherwise legal taping that is done to achieve a "further impropriety, such as blackmail," becomes a violation of the law. But even if ABC s means of taping were illegal because the act violated the employees privacy, that does not make the taping illegal under the wiretap act, the court held. Because the employees "produced no probative evidence that ABC had an illegal or tortious purpose" when it made the tape, the reporter did not violate the federal statute. (Sussman v. American Broadcasting Co.)

    In another case, an ophthalmologist who agreed to be interviewed for "Primetime Live" sued ABC under the federal wiretapping statute for videotaping consultations between the doctor and individuals posing as patients who were equipped with hidden cameras. The U.S. Court of Appeals in Chicago (7th Cir.) rejected the doctor s wiretapping claim because the federal statute requires only one-party consent, and the undercover patients had consented to the taping. The court further held that the network did not send the testers to the doctor for the purpose of defaming the doctor, and that therefore ABC did not engage in the taping for a criminal or tortious purpose. (Desnick v. ABC)

    These cases make two points journalists should remember when they think about taping a conversation: consent requirements under state and federal laws must always be met, and even then taping can be illegal if it is done in furtherance of a crime.

    Trespass. A party whose conversation is surreptitiously recorded, whether with a tape recorder or a hidden camera, may also raise such newsgathering claims as trespass and intrusion, examining the issue of the scope of a party s consent. For example, in Desnick, the doctor sued the network for trespass because he did not know of the taping. But the court stated that consent to an entry is "often given legal effect" even though the entrant "has intentions that if known to the owner of the property would cause him . . . to revoke his consent."

    On the other hand, the U.S. Court of Appeals in Richmond (4th Cir.) ruled in October 1999 that ABC reporters — again with "Primetime Live" — who obtained jobs with a Food Lion grocery store and therefore had legal permission to be in nonpublic areas of the store nonetheless exceeded the scope of that permission by using hidden cameras on the job. Food Lion had not consented to their presence for the purpose of recording footage that would be televised, the court held, and therefore the reporters presence in the nonpublic areas constituted trespass.

    However, Food Lion could not prove it was damaged by the trespass, the court found. Damage to its reputation caused by the resulting story was due to the facts reported in the story that alarmed consumers, not due to the trespass, the court held. As a result, Food Lion was only able to recover nominal damages of one dollar for the trespass claim. (Food Lion Inc. v. Capital Cities/ABC Inc.)

    Expectations of privacy. The other issue that courts address in evaluating these cases is whether or not the plaintiffs had a reasonable expectation of privacy in the area where the filming took place. In Desnick, the court held that the doctor did not have such an expectation of privacy in an area where he brought his patients.

    A medical testing lab in Arizona sued ABC over another "Primetime Live" segment, which focused on error rates among laboratories that analyze women s Pap smears for cancer. Producers from ABC posed as lab technicians and filmed the inside of the lab with a hidden camera. The U.S. Court of Appeals in San Francisco (9th Cir.) dismissed the lab s privacy claims of trespass and intrusion because the public importance of the story outweighed any privacy interests the lab could claim. The undercover journalists filmed portions of the lab that were open to the public and were escorted by the lab s owners into a conference room. The court said the lab and its workers did not have a reasonable expectation of privacy, because the areas filmed were open to the journalists, and none of the discussions caught on tape were of a personal nature. (Medical Laboratory Management Consultants v. ABC, Inc.)

    In yet another case against ABC, a court ruled that police officers who were secretly videotaped while they were searching a car did not have a claim under New Jersey s wiretapping law. The officers had no reasonable expectation of privacy in a conversation that occurred in a car on the shoulder of a busy highway, the New Jersey appeals court ruled. Moreover, police officers have a diminished expectation of privacy because they hold a position of trust. Thus, the taping, done for a show on racial profiling, was legal. (Hornberger v. ABC, Inc.)

    A Las Vegas animal trainer was secretly videotaped while physically abusing orangutans backstage at a show. The footage was later broadcast on "Entertainment Tonight," and the trainer sued for defamation, invasion of privacy and intrusion. The Nevada Supreme Court reversed a $3.1 million judgment awarded by the state district court, in part because the trainer did not have a reasonable expectation of privacy in the curtained-off area next to the stage. Furthermore, the court held that even if the trainer did have such an expectation, the invasionof his privacy was not "highly offensive." (PETA v. Bobby Berosini, Ltd.)

    Filming individuals in their home is always a more risky venture. In a Minnesota case, a veterinarian making a house call obtained permission to bring a student with him, but failed to inform the homeowners that the student was an employee of a television station. The student surreptitiously videotaped the doctor s treatment of the family cat in their home. The state Court of Appeals upheld the trespass claim because, unlike cases where the taping took place in an office, the family had a reasonable expectation of privacy in their home. (Copeland v. Hubbard Broadcasting, Inc.)

    Other consent issues. The question of whether a recording device is in plain view is not always straightforward. Five minutes into an in-person interview between a reporter and a deputy sheriff in Oregon, the deputy asked whether the object protruding from the reporter s pocket was a tape recorder. The reporter stated that it was and that it was on, and the interview continued for another 10 to 15 minutes. The reporter was later convicted under a state statute making it a crime to record a face-to-face conversation without informing all of the parties.

    On appeal, the Oregon Supreme Court held that a judge could have reasonably found that the recorder was concealed, despite the fact that the sheriff continued to participate in the interview after the reporter told him that he possessed a tape recorder and that it was on. On retrial, the reporter was acquitted on the illegal recording charge. (Oregon v. Knobel)

    The validity of consent has also been upheld where the party was mistaken about the terms. In a California case, a woman sued CBS for trespass and intrusion when a camera crew accompanied a crisis intervention team into her home in response to a domestic violence call. The woman conceded that she had consented to

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