New York State Laws on Videotaping

Since no specific right to privacy is defined in the United State Constitution, what constitutes an invasion of privacy varies among jurisdictions. In New York state, there's an implied right to place and use imaging devices in public places, in the workplace and on your own property. You must still allow for privacy, however, so the right to videotape does not extend to bathrooms, changing rooms and other areas a person may consider private.

In New York, you may videotape a subject without her consent, unless she has a reasonable expectation of privacy, in which case it becomes trespassing. A non-permissive recording of another person's image for voyeuristic, profitable, defamatory or exploitative purposes constitutes a Class D felony, punishable by two to seven years in jail. The statute, known as Stephanie’s Law, was engendered by miniaturization technology. For months, a woman was spied upon by her landlord through a tiny video cameras concealed inside her apartment's smoke alarms. Unfortunately, the predator could only be prosecuted for misdemeanor trespassing, as the law punishing outside-the-walls voyeurism as a felony at the time hinged on the phrase, “through windows.”

Enacted in 2003, Stephanie’s Law has wide applications, covering violations ranging from peeping Toms to wild party pictures and school kids “up-skirting” classmates with their cell phone cams. Hopefully, this broad statutory language is tempered by prosecutorial discretion.

New York State employers may videotape employees in secret, but not in private areas such as rest rooms, locker rooms or changing areas. Employers cannot eavesdrop on conversations, however, so the videotape may not contain an audio component or capture the human voice in any way. It’s not lawful to videotape employees in a discriminatory or harassing way, for example, by videotaping some employees but not others.

Members of the public have a First Amendment right to videotape law enforcement officers while performing their duties in public. The police officer can ask you to stop recording but he does not have the right to take your phone or delete your images. Take care, however, since it’s illegal to eavesdrop in New York State. In practical terms, this means you cannot record a police officer in secret or obstruct police activity while filming.

Video surveillance cameras have been fixtures in New York City since the 1990s. More than 4,500 of them are visible from street level in Manhattan alone. Public videography is controversial issue, pitting public safety against privacy rights and national security versus impinged civil liberties. As crime deterrents, the cameras are of certain benefit. Conversely, the Big Brother implications are chilling to others. As summarized by Jay Stanley of the ACLU, “We are heading toward a total surveillance society, in which your every move is recorded by some computer."