Laws on Tape Recording Without Consent in South Carolina

South Carolina is a one-party consent state for making tape recordings. This means that only one party to the conversation needs to give consent for the recording to be made lawfully. The party who consents to the recording can lawfully record the conversation without the other person’s knowledge.

If a person who is not a party to the conversation records the conversation without obtaining consent from at least one party, the act of recording is illegal. Illegally recording a conversation is a felony.

Whether a recording is admissible as evidence is a question of law to be decided by the judge or magistrate presiding over the case. South Carolina law provides that an illegal recording may not be received in evidence in a trial, hearing or other proceeding before a court, grand jury or agency.

The law is significant for civil cases in administrative law, meaning the violation of government agency rules.

The prohibition of the use of such recordings as evidence does not apply if the state is prosecuting a defendant for making an illegal recording. (The defendant is the person facing criminal charges.) To be admissible, a lawfully made recording must be relevant to the issues in the case.

Generally, a court will request that a witness testify personally in court rather than use a recording of their significant statements because the witness can be cross-examined.

The question of admissibility in a legal proceeding becomes more complicated when a recording contains hearsay evidence. Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted. For example, a tape recording of persons talking about a murder is hearsay if neither of the individuals on the recording will testify as a witness.

Generally, hearsay evidence is inadmissible. There are exceptions to this rule, such as if a recorded statement was an excited utterance. An excited utterance is a statement related to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

For example, if a person was a passenger in a car accident, and immediately after the accident was recorded as saying, “The driver who hit us wasn’t wearing sunglasses! You can’t see anything turning left because of the sun,” this would qualify as an excited utterance and could constitute admissible hearsay.

South Carolina has varying degrees of felonies ranging from Class A, the most serious category, to Class F, the least serious. The South Carolina Code of Laws does not classify making an illegal recording as a specific level of felony.

The penalties for felonies range from up to 30 years of incarceration for a Class A felony to up to five years' incarceration for a Class F felony, so the penalty for making an illegal recording can vary. The court has discretion as to how it sentences the offender.

There are specific penalties for violations of the state’s video recording laws. Eavesdropping, being a peeping tom, or visiting a person’s premises for the purposes of either is unlawful. A peeping tom is a person who looks through doors, windows and other openings on the premises to spy on persons within.

The term peeping tom includes a person who uses video or audio equipment to spy on others in this way; such action is a misdemeanor. The penalty for the offense is up to three years of incarceration and a fine up to $500.

Voyeurism is knowingly recording conversations or viewing, photographing, audio recording, video recording, producing or creating a digital electronic file, or filming others without their knowledge or consent. The persons recorded must be in a place where they would have a reasonable expectation of privacy, such as their bedroom.

The penalty for a first offense of voyeurism is up to three years of incarceration and a fine up to $500. A second or subsequent offense is a felony, punishable by up to five years of incarceration and a fine between $500 and $5,000.

Aggravated voyeurism is knowingly selling or distributing such recordings of other persons. This offense is a felony punishable by up to 10 years of incarceration and a fine between $500 and $5,000. A place where a person would have a reasonable expectation of privacy has two meanings:

• Place where a reasonable person would believe they could get undressed in privacy without being concerned that the act was being photographed, filmed or videotaped by another person.
  

• Place where a person would reasonably expect to be safe from a hostile intrusion or surveillance, the latter meaning the secret observation of their activities.

A person who makes recordings in violation of this law must immediately forfeit all items, which must be destroyed when they are no longer required for evidentiary purposes.

Multiple types of acts are excepted from the definition of voyeurism, including:

• South Carolina Department of Corrections or a county, municipal or local jail, detention center or correctional facility recording actions for security purposes or during an investigation of alleged misconduct by a person in custody.

• Security surveillance for the purposes of decreasing or prosecuting theft or shoplifting, such as a security camera in the dressing room of a clothing store.

• Other security surveillance measures in bona fide (true) business establishments.

• Official law enforcement activities conducted pursuant to a law enforcement officer’s apprehension and ferreting out of offenders and suspected offenders. The provisions of this section do not give law enforcement officers any additional rights or powers upon private property.

• Private detectives and investigators conducting surveillance in the ordinary course of business.

• Bona fide news gatherings activities.

A victim can sue the person who made or disclosed an illegal recording of an oral, phone or electronic conversation. The victim can recover actual damages in the greater amount of $500 per day of each day of the violation, or $25,000. They can also recover punitive damages for pain and suffering as well as attorney’s fees and court costs.

In South Carolina, a person has the right to record law enforcement officers in a public location, such as a street. They do not have the right to trespass upon another person’s property or break other laws to record a law enforcement officer.

The person may not interfere with the officers’ actions, such as an arrest in progress. If a law enforcement officer takes or destroys the person’s recording device, the person can sue the officer and the agency that employs them in civil court.

The Federal Communications Commission (FCC) does not have rules regarding an individual’s recording of telephone conversations. State laws, such as South Carolina’s, prohibit the practice under certain circumstances like the one-party consent law.

Wiretapping, the connecting of a listening device to a phone line to covertly monitor a conversation, is regulated by both federal and state laws. When it is done illegally, such as in violation of South Carolina’s one-party consent rule, it carries penalties such as incarceration and fines.

Cellular phones, including smartphones, send and receive information by radio communications. Federal and state laws prohibit the interception and divulgence of radio communications. Interception and divulgence can involve the recording of radio communications. There are certain exceptions to this rule.

The mere interception of a radio communication, like overhearing a neighbor’s conversation over a cordless phone, is not illegal, but the federal Communications Act of 1934 and subsequent amendments prohibit a person from using intercepted radio communications for their own benefit.

For example, a taxi company may not intercept radio communications between dispatchers and drivers of a rival company to gain a competitive advantage.

State rules as to when a recording is illegal differ. For example, California, Florida, Montana, Nevada, Washington and Pennsylvania are two-party consent states, meaning that the person who records a conversation must have the consent of both parties to the conversation. Like South Carolina, North Carolina, North Dakota, Kentucky, Kansas, Minnesota, New York, Alaska, Hawaii, Utah, Oklahoma and Arizona are one-party consent states. Penalties for violating recording laws differ according to the state and circumstances.

For example, in North Dakota, a person is guilty of a Class C felony if they intentionally intercept a wire or oral communication by use of an electronic, mechanical or other device.

They are also guilty of this level of felony if they intentionally disclose to any person, or intentionally use the contents of any wire or oral communication knowing the information was obtained through the interception of a wire or oral communication. The penalty for a Class C felony in North Dakota is up to five years of incarceration and a fine up to $10,000.

A person is guilty of a Class A misdemeanor if they secretly loiter about a building with the intent to overhear conversations occurring inside. They are also guilty of a Class A misdemeanor if they intend to repeat or publish such conversations with the intent to vex, annoy or injure others.

The act of publishing can occur through electronic communications such as attaching an audio file to an email. In North Dakota, a Class A misdemeanor is punishable by up to one year incarceration and a fine up to $3,000.

A criminal defense attorney can represent a person accused of making an illegal recording. The attorney is available for consultation if the defendant chooses to represent themselves.

A person who has made a recording of a law enforcement officer and had their recording device taken from them should talk to a civil attorney. A person who wants to sue, or one who is being sued, for invasion of privacy should talk to a civil attorney.

Legal Advice from a Civil Attorney

A person who made a recording of a conversation without the other person’s knowledge or consent and wants to introduce it as evidence in a civil trial or hearing should consult a civil attorney. Such a recording may be lawful in South Carolina, yet introducing it as evidence can heighten the conflict between the parties.

This could lower the chances of a settlement. There may be other ways to resolve the dispute beyond introducing the recording.

A person who is in the middle of a divorce or child custody suit should seek advice from a family law attorney.

They may want to make a recording of communications between themselves and their current or former partner, but there is often a better way to make a recording of such communications than to record the partner without their knowledge or consent.

Making such a recording is legal in South Carolina because of the one-person consent rule, but doing so could cause further tension between the parties. Alternatives include mediation and taped negotiations with both partners’ attorneys present.