South Carolina recording laws provide a variety of restrictions and procedural considerations with respect to the non-consensual recording of other peoples’ conversations. Criminal and civil statutes generally prohibit acts of spying on another or using any electronic devices to invade someone else's privacy unless that party has given consent. Violations may be deemed either a felony or a misdemeanor, and they may also give rise to civil liability. Individuals may, however, record conversations to which they are a party without obtaining the consent of the other individual.
One-Party vs. Two-Party Consent Laws
In the United States, most states fall into one of two categories with respect to laws regarding the recording of conversations. A handful of states follow an “all-party” or “two-party” consent policy, which simply means that in order to be a lawful recording of a conversation, all the parties to that conversation must consent to the recording.
Other states, such as South Carolina, are one-party consent states. Thus, in South Carolina, a party to a conversation may record it without the consent of any other party to the conversation. However, should someone who is not a participant in the conversation attempt to record it or disclose its contents after recording, that person is in violation of South Carolina criminal law and may also be subject to civil liability for those actions.
Recording Acts That Can Be Felonies
Under South Carolina Law 17-30-20, these acts of obtaining or disclosing recorded conversations without consent are prohibited:
- Intentional interception of oral, written or electronic communication;
- Procuring another to use illegally intercepted communication;
- Intentional disclosure of the contents of illegally-obtained communication; and
- Attempting to use the information contained within an illegally-obtained recording.
Any individual who commits one of these prohibited acts may be charged with a felony. Upon conviction, these felonies are punishable by imprisonment for up to five years, in addition to the imposition of fines.
Lawful Interceptions of Communication
In limited instances, it may be permissible under South Carolina law to record the written, oral or electronic communications of other people.
For instance, it is not a crime to record communication intended to be released to the general public, such as television or radio communication. It is also lawful to intercept the communication of any item that constitutes a lawful consumer electronic equipment for purposes of reaching a source of interference. Finally, it is not illegal to intercept satellite broadcasts that are not encrypted and are meant for general public consumption or experience.
“Peeping Tom” Recordings
Under section 16-17-470 of the South Carolina Code, it is a misdemeanor offense to engage in “peeping Tom” conduct for purposes of recording another person, either audibly or visually.
The code defines a “peeping Tom” as “a person who peeps through windows, doors, or other like places, on or about the premises of another, for the purpose of spying upon or invading the privacy of the persons spied upon and any other conduct of a similar nature, that tends to invade the privacy of others.”
Conviction under this statute carries a maximum jail sentence of three years in addition to the possible imposition of fines.
Using Unlawful Recordings as Evidence
Section 17-30-65 states that no illegally recorded communication may be used as evidence in any trial, hearing or proceeding before the courts of South Carolina. Such evidence also may not be used by any grand jury, department, officer, agency, regulatory body, legislative committee or other authority of the state.
The only time illegally recorded evidence may be used in court is to prosecute someone under the statute prohibiting illegally recording evidence. In other words, if a person violates section 17-30-20 and is being prosecuted for a felony under that section, the recording may be used as evidence that the defendant did, in fact, make the unlawful recording.
Obtaining Consent as a Third Party
It is still possible to lawfully obtain a recording of a conversation to which one is not a party. Such third parties must obtain consent. According to the Federal Communications Commission, legally sufficient consent may take one of three forms, which should also be sufficient at the state level when attempting to prove consent:
- Obtain a verbal or written statement acknowledging consent from each party to the conversation before the conversation is recorded.
- Automatically playing a spoken alert that the conversation will be recorded, such as, “For quality control purposes, this telephone call may be recorded.”
- Play a tone or beep at consistent intervals throughout the conversation.