April 13, 2016

Can I Record Audio In My Business?

Video monitorsI am frequently asked if audio can be recorded in a surveillance system in various situations such as a retail store, church, school classroom, work office, in common areas in a residential building and in a home. Usually the answer is a flat NO, and the reason is that even if one party to the conversation has consented, in public areas there can always be two people talking who haven’t consented.  That conversation cannot be eavesdropped. What is eavesdropping?

Eavesdropping is intercepting, listening or recording conversation through mechanical means.  It’s illegal in all states.  There are essentially two exceptions, unless you’re in law enforcement.

Either you’re in a one party or all party state.  That means that either one party to the conversation or all parties to the conversation must consent to the eavesdropping.  You can check out your state audio law here:

An employer can install a surveillance system anywhere on the premises except in bathrooms and dressing rooms.  No consent is required.  Audio is another issue.  The employer can intercept or listen in to audio if the employee has given consent.  That consent should be in writing, and not buried in a handbook unless employee has signed a “consent” to the handbook, not just an acknowledgment of receipt.  But in public places getting the employee to sign off on audio is not going to be enough if customers are on the premises.  Two customers being overheard or recorded, neither of whom have given consent’ is a violation of law and their privacy.  Signs and beeps don’t help.  You need consent and I suggest it be in writing.

What about signs? Can you put signs that clearly states audio is being recorded? Sure! You can put a sign up but you still can’t record audio. As stated above in a public place, like a store or office, the audio may pick up conversation between two or more quests who haven’t consented.  Signs don’t help.  No law says you can post signs to obtain implied consent. PERIOD!

Any questions? Consult your attorney.