Can you record someone without their consent in Virginia?
Sometimes yes, and sometimes no. It’s a good thing to know what the rules are because the consequence of getting it wrong is a felony.
Is Virginia a one-party consent state? Yes. This means that in many cases, only one party needs to consent to having a conversation recorded.
You ARE allowed to record someone (audio, video, photo, etc.)—and share that recording—when…
Here is a list of many (not all) instances when you can record a conversation:
- They have consented to the recording.
- They have not consented to the recording, but someone else in the conversation has.
- Exception: in divorce proceedings, everyone must consent
- Exception: in lawyer conversations, everyone must consent
- They are in a public place where they are not expecting their image/speech to be private (for instance a public address, or a street dancer).
- They are in a public meeting.
- Side note: public meetings may not prohibit use of recording devices, but they may put rules on them—such as only a certain number, or only in certain areas of the room.
- They are calling emergency services (9-1-1, police, ambulance, etc.).
- When you are a third-party system, and you need to share parts of the recording in order to do your job (for instance, if you work at a call center, and a customer was belligerent to you, you and your boss can review the call recording together).
- You are a communication service provider, and you inadvertently come across something that pertains to illegal activity; you may share it only with law enforcement and no one else.
You ARE NOT allowed to record someone (audio, video, photo, etc.)—and share that recording—when…
Recording conversations in Virginia can sometimes be wrong, though. Here is a list of some (not all) instances when you cannot record a conversation:
- They have stated they do not consent to the recording.
- They are in a state of undress (full or partial nudity) in places such as tanning beds or locker rooms where people get fully or partially undressed.
- You are in a court proceeding where the offenses involve juveniles or sexual matters or where the recording is not authorized by law.
- You are a communication service provider, and there is no reason to share the recording.
For more information on what is and is not allowed, see the Virginia State Code concerning Virginia video recording laws.
Other things to note about recording phone calls in Virginia:
- If you are on a phone call with people from a different state, it is a good idea to default to the rules of the most strict state—or get everyone’s permission up front to be safe.
- The FCC states that the following ways are acceptable for gaining consent to record:
- Getting verbal or written consent before the recording takes place.
- Playing a notification before the conversation begins (something like, “This call may be recorded for quality assurance purposes”).
- Playing an audible beep tone at steady intervals during the whole conversation.
- If you submit a recording into evidence in court, you must prove that at least one person consented to the conversation recording before the conversation began.
Penalties for recording phone calls in Virginia without consent:
- If you are caught wiretapping (recording conversations without the consent of anyone involved), you could be sued for damages by the injured party.
- If you are caught wiretapping, you can be charged with a Class 6 Felony. If convicted, you will serve 1 to 5 years in prison and a fine of up to $2,500.
- If you are caught violating any of the other recording laws, you may be charged with a Class 1 Misdemeanor. If convicted, you could serve up to 1 year in prison and pay a fine of up to $2,500.
How an attorney can help:
An attorney such as the ones at Cook Attorneys can help you if you have been charged with a violation of Virginia recording laws.
Sometimes, the line between misdemeanor and felony in these cases is fuzzy, and a good attorney can help you navigate the charges and get the best possible outcome.
Cook Attorneys offers free consultations for criminal cases of recording law violations, so fill out the form below and ask to schedule a consultation to discuss your case. We look forward to hearing from you!