Is It Legal to Record Video in Public?

by Sarah Stasik
Man recording a street performance of a guitarist with his mobile phone

Recording laws are complex, and they also vary by state. You can't be 100% sure it's legal to video record someone in a public place unless you understand the laws relevant to that location.

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However, there's some general guidance that can help you keep video recording within the confines of the law.

Is It Legal to Record Video in a Public Place?

In general, the actual location in question, as well as the intent of your recording, are factors in determining whether you can video record someone without their consent in a public location. What you do with the recording after the fact may also play a role in legalities.

Typically, it is legal to film people in public without their consent if you're in a place where there's no reasonable expectation of privacy. Here are a few examples that are generally legal:

  • You're filming your child playing on the playground with the intent to share the video with friends and family. In the course of filming, you capture other people in the background. 
  • You're filming scenes of people riding bikes on a public greenway for use in a news story or a personal blog or YouTube video on the topic of bike riding in the local area.
  • While attending a festival downtown, you film a street performer or take video of various vendor stalls, including the vendors and shoppers in them.

Businesses may also record people in areas where there isn't a reasonable expectation of privacy. For example, when you enter a shopping mall, grocery store, bank or other business, you're likely recorded without offering your specific consent. You may also be recorded by public cameras on city streets.

However, when it comes to audio, it might be illegal to record someone without their knowledge or consent. For example, in Virginia, you can take video recordings in public places of anything or anyone in plain view. However, you're not allowed to record the audio of private conversations, even when those conversations are held in a public location.

What Counts as a Public Place?

However, even outside your own home, there are locations where you have an expectation of privacy. It's illegal for anyone to record someone without consent in these types of locations, as they aren't considered "public" in the same way the above-mentioned locations are. The most common examples are bathrooms and dressing rooms. Even in a public park, the bathrooms provide an expectation of privacy, for example.

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Can You Record Video in Private Without Consent?

Recording someone without their knowledge or consent in private is a different matter. Again, state laws differ on the details, and intent and location matter. For example, you can capture video surveillance of many areas of a private residence or business property without consent if the purpose is for security. You can't, however, capture video in a bathroom on those properties without consent.

Audio recordings are also more prohibited than video recordings in these scenarios. You may need consent to legally capture an audio recording in a private location even if you don't require consent to capture video for security purposes, for example.

To add to the complexity, various states have one-party or two-party consent laws. Federal laws regarding recording consent requirements tend to be one-party consent laws.

One-party consent means only one person involved in a conversation has to consent for it to be recorded — audio and all — for it to be legal. Two-party consent requires that all parties to the conversation must consent.

What If You Feel Threatened or a Crime Is Being Committed?

In general, it's not illegal to video record someone without their consent in cases where a crime is being committed. This is especially true if you feel threatened and video recording in public or private is a method you're using to help defend yourself or capture evidence of what you reasonably believe is about to be a crime against you.

However, even in these types of cases, consent laws can be complex. If you have any questions about whether your video recording is legal, you may want to consult an attorney.

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