New York State law gives people a right to record via audio or video on their own property, at their place of work and in public spaces. However, they must consider the privacy of others when doing so. This right does not extend to dressing rooms, bathrooms or other places that are deemed private.
One-Party Consent in New York
New York is a one-party consent state. This means it is a criminal offense to obtain, record, share or use electronic, wire or oral communications without at least one party's consent during that interchange. In New York, it is legal for the individual making the recording to do so if they are one of the parties or have prior permission from a party involved in the communication, according to New York Penal Law Article 250. Federal law, 38 states and the District of Columbia follow one-party consent laws.
Legality of Video Recording in New York State
New York State allows the use of video surveillance systems when using them to monitor security. The system owner must post a visible notice stating they have a video surveillance system for such a purpose. Also, a video surveillance system is legal if its installation is immediately apparent and visible.
However, the state considers surveillance illegal when installed in an area like a bedroom, dressing room, changing room, bathroom or shower – places where someone would expect privacy and not give consent or know that recording was taking place. A person who hosts guests in their home cannot record them in locations that they would expect to be private. It is also illegal to broadcast, view or record:
- Under clothing without the consent or knowledge of the person.
- Sexual parts of a person without their consent or knowledge.
- A person's sexual acts in a covert manner.
New York Court Hearings and Recording Laws
New York State appellate court allows recording under some circumstances, but a particular court must approve it. Generally, New York allows two television cameras and two still cameras in courtrooms at a time. However, the state does not allow any recording devices in trial courts.
Second Circuit federal appellate courts allow recording of oral arguments under specific circumstances, but only allow it when hearing criminal matters. A person or business that gathers and disseminates news can record civil case oral arguments if they notify the calendar clerk by noon two days before the court hears a case.
Presiding judges have the right to bar the media from the courtroom and limit the number of cameras; federal district courts do not allow any recording devices. New York also allows individuals attending public meetings, such as a city council meeting or a town board meeting, the right to record the proceedings, as long as they do so without being obtrusive. The government body hosting the meeting can restrict recording devices, but it cannot completely ban them.
Exterior Cameras and State Surveillance Laws
New York State does not have laws regarding outdoor residential security cameras, but a person can be sued, under the state's Backyard Surveillance Law, signed by Governor Andrew Cuomo in 2017, which gives people the expectation of privacy in their own backyards. This right to privacy bill came about after a 2011 incident in Chautauqua County, New York, in which a convicted sex offender trained his home video cameras on minor children in a neighboring family's backyard. At the time, the family called law enforcement, but they could not prevent the taping.
Now homeowners and tenants of residential properties have the right to sue someone videotaping them. They can do this if they did not consent to the recording, and if that person intended to annoy, alarm, harass or threaten them.
Recording Private Conversations and Consent
One-party consent applies to both audio and video recordings in New York State. A person acting as a third party who wishes to record communication like telephone calls via audio must get consent from the parties communicating.
A person who wishes to gain consent to make an audio call recording can:
- Get verbal or written consent before they make the recording of a conversation from the person or persons they wish to record.
- Play a verbal notification before the phone conversation begins, such as, "This phone call is being recorded for quality control purposes…."
- Play an audible beep at steady intervals of every few seconds or minutes during the telephone conversation.
Penalties for Unlawful Surveillance in New York
A person can face two unlawful surveillance charges in New York law: first-degree and second-degree. A first-degree unlawful surveillance charge applies to an individual with a prior unlawful surveillance charge within the past 10 years. This is a class D felony and carries a punishment of up seven years in prison.
A second-degree charge of unlawful surveillance is a class E felony, which a person commits using a device to record a person dressing, undressing or recording sexual or intimate parts of a person's body, their own body for their own amusement, entertainment or profit, or to abuse and degrade someone else. To be a second-degree charge, the recording must occur when the victim has a reasonable expectation of privacy and does not consent to the recording. If the defendant does not have a prior second-degree unlawful surveillance conviction, they will receive a lighter prison sentence of up to four years, but they will also receive a $5,000 fine.
- The Blanch Law Firm: Unlawful Surveillance
- Times Union: Cuomo Signs Backyard Surveillance Bill
- New York State Senate: Section 52-A Private Right of Action for Unwarranted Video Imaging of Residential Premises
- Digital Media Law Project: New York Recording Law
- Find Law: New York Consolidated Laws, Penal Law Section 250.00 Eavesdropping; Definitions of Terms
- Andrew M. Stengel: Article 250 NY Penal Law
- Recording Law: New York Recording Laws
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.