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Old 03-23-2019, 02:04 AM
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Filming or recording in a store or restuarant.


I've watched a few YouTube's about people recording on their cell phones when they are getting bad customer service. Always, never fails the employee puts their hands up and tells the person to quit recording. If the person argues the employee/manager will say it's illegal to film in Wal-Mart or Target or some fast food joint. The person always says that's not true, it's a public place and they are allowed to record. Sometimes LE gets involved. Who's right?

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Old 03-23-2019, 05:46 AM
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Privately owned businesses open to the public are not public places but places of public accommodation. Since they are privately owned said owner has every right to demand someone cease or to post signs prohibiting taking photos or filming. If anyone refuses to stop the owner may demand they leave the property and have them arrested for trespass if they refuse.

And since a retail establishment is not a public place recording someone may run afoul of laws prohibiting the recording of someone without their consent. Depending on other facts such as expectations of privacy, whether the filmer is a party to the conversation, is doing the filming openly or in secret, the nature of what is being filmed, etc. there may be other important considerations and it could get far more complicated, but that's the basic gist of it.

A true public place would be a city sidewalk or park. Generally speaking, property owned and administrated by the government. Even then the government can impose time, place, and manner restrictions to access but must justify the necessity of such restrictions.

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Old 03-23-2019, 07:12 AM
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According to USLegal" A public place is generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not, but not a place when used exclusively by one or more individuals for a private gathering or other personal purpose."

I found this because I was interested to see what the definition was in the UK:-" Public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise ”.

Same result with fewer words I guess.
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Old 03-23-2019, 10:41 AM
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I'm not an attorney nor an expert in this subject, but I believe that an important element is the disclosure of the recording to others. In two-party states, both parties have to consent to the recording (of the audio, at least) AND its disclosure to third-parties (e.g., posting it on YouTube). This is probably not the case in a single-party state. This makes sense if you think about the difference between making a private video of someone you deem to be exceptional in some way so you can enjoy it in private, as opposed to posting it on YT and making rude comments.
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Old 03-23-2019, 10:44 AM
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IANAL, nor an expert in the subject, but I believe that the disclosure of the recording to others is an important element. In a two-party state (for audio recordings, at least), both parties have to consent to both the recording AND disclosure (e.g., posting it to YouTube). This makes sense if you think about the difference between someone recording so they can privately enjoy it, as opposed to recording something and posting it to YT along with rude comments. I'm sure an attorney could provide a more informed opinion.
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Old 03-23-2019, 11:05 AM
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If anyone refuses to stop the owner may demand they leave the property and have them arrested for trespass if they refuse.
That's the main part of it. Essentially they deem you unwelcome for whatever reason (photography, loitering, wearing polka dot pants) and can ask you to leave. That said, they can not ask you to hand over your camera/memory card or to delete anything you've already recorded, which can be considered theft or coercion. The same goes for detaining you, which can be considered false imprisonment, kidnapping, or assault.
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Old 03-23-2019, 11:18 AM
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Outside of dressing room or restroom cams, it's not illegal and you don't need consent to record. You do have to leave when the tell you, though. Most people seem to prefer kicking, screaming and related carrying on when ordered to depart.

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I'm not an attorney nor an expert in this subject, but I believe that an important element is the disclosure of the recording to others.
That's for recording when there would otherwise be a 'reasonable expectation of privacy.' I would assume that I'm already on camera, probably more than one, while, say, waiting in line at Panera and that my interaction with the cashier is recorded. It's not a private place. However, Panera isn't allowed to mic up the booths to catch patrons' conversations, there's a reasonable expectation of privacy.
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Old 03-23-2019, 12:20 PM
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Outside of dressing room or restroom cams, it's not illegal and you don't need consent to record. You do have to leave when the tell you, though. Most people seem to prefer kicking, screaming and related carrying on when ordered to depart.

That's for recording when there would otherwise be a 'reasonable expectation of privacy.' I would assume that I'm already on camera, probably more than one, while, say, waiting in line at Panera and that my interaction with the cashier is recorded. It's not a private place. However, Panera isn't allowed to mic up the booths to catch patrons' conversations, there's a reasonable expectation of privacy.
Not really. Forget about the video part and concentrate on the recording of the voices. Using electronic means to record and disclose a conversation that is not public (e.g., between a customer and a store representative) is not permitted in a two-party state, even if it takes place in a public location. Intercepting and disclosing a conversation to which you are not a party (e.g., using a directional microphone) is not legal at all, regardless of where it takes place.

Reference: Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 87 Stat. 197, 18 U.S.C. 2510 - 2520 (1970 ed.)
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Old 03-23-2019, 01:05 PM
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Not really. Forget about the video part and concentrate on the recording of the voices. Using electronic means to record and disclose a conversation that is not public (e.g., between a customer and a store representative) is not permitted in a two-party state, even if it takes place in a public location. Intercepting and disclosing a conversation to which you are not a party (e.g., using a directional microphone) is not legal at all, regardless of where it takes place.

Reference: Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 87 Stat. 197, 18 U.S.C. 2510 - 2520 (1970 ed.)
Ok, show where someone whipping out a phone and recording a cashier or similar public-facing employee has lead to successful conviction. Or a public freakout in a park, mall or subway car. Criminal cases of two party consent laws has everything to do with the expectation of privacy.

Five years ago, Illinois finally corrected our insane law regarding recording police officers. Police could record civilians, civilians faced felony (!) wiretap charges for doing the same. The Supreme Court rightly recognized most police encounters as inherently not private and made it explicitly legal to record.
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Old 03-23-2019, 04:24 PM
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Outside of dressing room or restroom cams, it's not illegal and you don't need consent to record. You do have to leave when the tell you, though. Most people seem to prefer kicking, screaming and related carrying on when ordered to depart.

That's for recording when there would otherwise be a 'reasonable expectation of privacy.' I would assume that I'm already on camera, probably more than one, while, say, waiting in line at Panera and that my interaction with the cashier is recorded. It's not a private place. However, Panera isn't allowed to mic up the booths to catch patrons' conversations, there's a reasonable expectation of privacy.
That's not necessarily true. First of all, R.E.P. is not a binary determination where you have complete R.E.P. or none. It may also differ considerably as to what parties you have a R.E.P. in relation to. So just because a customer or even employee has a lessened R.E.P. in regards to the business and its owner due to the presence of security cameras, it doesn't mean that that standard of R.E.P. translates to being filmed by any third party. Owners can justify the use of cameras to deter theft, etc. A third party can almost certainly claim no such justification (unless for instance, filming a crime in progress). And stores typically post signs alerting customers to their presence to give notice and cover themselves against potential liability. Furthermore, security footage is rarely disseminated to the public since doing so could open the distributor to civil liability or even prosecution since the use of cameras and resulting media is justified only for certain purposes, possibly quite limited in nature.

Also, another wrinkle is that even if you maybe able to legally record video, recording audio as well could place you in violation of state eavesdropping laws.
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Old 03-23-2019, 04:51 PM
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I have no expertise on this, merely questions. What about the famous video of the two guys getting arrested at Starbucks for Sitting While Black--you know, the one that prompted Starbucks to close for a day for training? Nobody told the person filming to stop, but both video and audio were recorded--Starbucks manager, cops, customers, etc.? And what about those videos of white people calling cops because someone Black was barbecuing or something equally innocuous? Most of them show the obnoxious person's face, voice, etc. Or the videos of people doing stupid and dangerous things at zoos or national parks? These are all over social media and youtube, and I've seen some of them on news channels.

I'm unclear as to why those recordings are publicly displayed if they're illegal. Note I'm not saying they ARE legal, just that I don't understand how they're out there if they're not.
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Old 03-23-2019, 04:54 PM
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Many of those videos you're referring to were taken outdoors, in a public park. That's different.
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Old 03-23-2019, 06:21 PM
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That's not necessarily true. First of all, R.E.P. is not a binary determination where you have complete R.E.P. or none. It may also differ considerably as to what parties you have a R.E.P. in relation to. So just because a customer or even employee has a lessened R.E.P. in regards to the business and its owner due to the presence of security cameras, it doesn't mean that that standard of R.E.P. translates to being filmed by any third party. Owners can justify the use of cameras to deter theft, etc. A third party can almost certainly claim no such justification (unless for instance, filming a crime in progress). And stores typically post signs alerting customers to their presence to give notice and cover themselves against potential liability. Furthermore, security footage is rarely disseminated to the public since doing so could open the distributor to civil liability or even prosecution since the use of cameras and resulting media is justified only for certain purposes, possibly quite limited in nature.

Also, another wrinkle is that even if you maybe able to legally record video, recording audio as well could place you in violation of state eavesdropping laws.
How does this pertain to the OP? The fact of the matter is that it is not a criminal offense to film and record people in public settings as described and one doesn't, in general, need to seek or gain consent.
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Old 03-23-2019, 07:16 PM
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According to USLegal" A public place is generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not, but not a place when used exclusively by one or more individuals for a private gathering or other personal purpose."

I found this because I was interested to see what the definition was in the UK:-" Public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise ”.

Same result with fewer words I guess.
Around here (vic.aus) school grounds are not public places by a longstanding and specific legal exception. Which seems to imply that they were / would be public places except for the exception. Except that they mostly how have fences, which would make them not public places. Except that they are sign posted as being closed to the public in school hours, which indicates that they are not closed to the public out of hours...except for dogs. Dogs aren't permitted. I've never been able to work out what exactly it means.
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Old 03-23-2019, 07:23 PM
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How does this pertain to the OP? The fact of the matter is that it is not a criminal offense to film and record people in public settings as described and one doesn't, in general, need to seek or gain consent.
One, a retail store is not a public place, legally speaking. It is a place of public accommodation. So your statement is the irrelevant one since the OP does not describe a situation occurring in a public place. Two, recording audio without consent is a criminal offense in two-party consent states.
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Old 03-23-2019, 07:25 PM
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What I'm trying understand is why some people ( employees and store managers) say it's illegal. But filters and recorders say it's perfectly legal. Who is right? There must be a perfectly understandable explanation. Or, I don't know, maybe not. Where is the sticky point?
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Old 03-23-2019, 07:35 PM
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What I'm trying understand is why some people ( employees and store managers) say it's illegal. But filters and recorders say it's perfectly legal. Who is right? There must be a perfectly understandable explanation. Or, I don't know, maybe not. Where is the sticky point?
I have always looked at it as it's legal to film, but if consent is withdrawn (or never offered at all in a "no cameras allowed" situation) and you're asked to leave, you're then trespassing... which is illegal.
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Old 03-23-2019, 11:06 PM
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I've watched a few YouTube's about people recording on their cell phones when they are getting bad customer service. Always, never fails the employee puts their hands up and tells the person to quit recording. If the person argues the employee/manager will say it's illegal to film in Wal-Mart or Target or some fast food joint. The person always says that's not true, it's a public place and they are allowed to record. Sometimes LE gets involved. Who's right?
What does your State law say?

This is an excellent information source, very well researched.

https://www.mwl-law.com/wp-content/u...IONS-CHART.pdf
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Old 03-23-2019, 11:14 PM
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Oh, the others are right also notwithstanding any laws, the mercantile establishment has a right to tell you to stop filming or leave, period.
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Old 03-23-2019, 11:50 PM
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What I'm trying understand is why some people ( employees and store managers) say it's illegal. But filters and recorders say it's perfectly legal. Who is right? There must be a perfectly understandable explanation. Or, I don't know, maybe not. Where is the sticky point?
Mainly because there are a whole lot of people who don't understand the difference between something being illegal and something being disallowed.

It is generally not illegal to film or record on private property, but the owner of private property has the right to prohibit filming or recording. As others have noted, if you continue to film after the property owner tells you not to, they can ask you to leave. If you don't leave, they can call the police and have you charged with trespass. But the illegal act would be trespassing, not filming or recording.
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Old 03-24-2019, 12:28 AM
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Oh, okay. I'm beginning to see. The store management or PTB can ask you to stop. If you don't stop they can ask you to leave. If you don't leave it is trespass. I just bet LE loves those calls. Hmmmm.
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Old 03-24-2019, 12:44 AM
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Ok, bit of a mea culpa here. I'm posting here during downtime while traveling (and travel-lagged) and meant to differentiate between public place, public accommodation, and public property and their respective differences/significances in criminal and civil contexts. Instead, I managed to accidentally type the wrong term on several occasions, make some editing copy-paste errors, woefully failed to proofread and generally mangled shit up. Apologies for my mis-correction in my last post and any other confusion caused. So let me restate and try and salvage my previous posts and perhaps a little dignity.

The reason I meant to make clear the differences in terminology is that people tend to conflate public place with public property, as the person/people in the OP likely did. And that can lead to the misapprehension in this context that in a public place or public accommodation which is also private property that private property rights don't still apply.

So yes, a Wal-Mart is a public place but one that is privately owned. So, as previously said upthread, they can order the offending party to leave. If they fail to do so they be criminally liable for trespassing.

Also, depending on the manner in which they conduct themselves they could also be criminally liable for disturbing the peace or disorderly conduct. Especially if said conduct interferes significantly with the operation of the business. Such actions could also lead to tortious liability for lost business, damage to reputation, etc. as well.

Given the nature of the OP one can assume the recordings include audio. As once again mentioned upthread, this is potentially very important. And because someone can have a private face-to-face conversation even in a public place this is where the Reasonable Expectation of Privacy could come into play.

First, if you make an audio recording of a conversation to which you are a party where there is an REP in a two-party consent jurisdiction without obtaining the consent of all parties then that is a crime. If you record a conversation to which you are a party where there is an REP in a one-party consent jurisdiction then your own consent will suffice. And finally, if you record a conversation to which you are not a party and fail to obtain consent from all parties then you are guilty of a crime in either jurisdiction.
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Old 03-24-2019, 01:26 AM
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I'm assuming all the voice recording no-no is from the previous century's laws on recording phone conversations or wire tapping. Is that correct?
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Old 03-24-2019, 01:36 AM
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What I'm trying understand is why some people ( employees and store managers) say it's illegal.
Why? Because people are stupid. Mhendo put it more politely than I did, but this pushes my buttons.

That said, I’ve seen video of police officers (outside of Illinois) asserting that it’s a crime to record video of officers in a public space. Obviously, there was some ambiguity or we wouldn’t have a Supreme Court ruling on the subject, but most of those officers should know better.

But people have strange ideas about many aspects of law. For example, I used to hear semi-regularly that filmmakers are required to pay a fee to the manufacturer of any product or the owner of any logo depicted in their movies, which is nuts. If that were true, most movies would be about naked people living in the woods.

My best guess is that it’s just a garbled understanding of paid product placements in movies. But in those cases, it’s the manufacturer that pays the filmmaker to have their product appear prominently in a film.

I’m sure some store managers/employees assert that it’s illegal to record in their stores because that’s what they were told (erroneously) by their superiors or in training. Others seem to be on a power trip. Of course, it could be a little of each, too.

On a related note, I remember when malls and stores within malls tried to enforce no-recording rules very strictly...they also forbade still photography. I recall that the official reasoning was that they didn’t want their competitors to steal their display/merchandising ideas. But that’s so absurd that I can’t help wondering whether there was another reason. With the advent of cell phones and ubiquitous video/still cameras, I expect that ship has sailed. Even so, overzealous enforcement of those rules may still be a thing. I mean, there’s a reason “mall cop” is shorthand for “petty tyrant.”
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Old 03-24-2019, 02:41 AM
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That's not necessarily true. First of all, R.E.P. is not a binary determination where you have complete R.E.P. or none. It may also differ considerably as to what parties you have a R.E.P. in relation to. So just because a customer or even employee has a lessened R.E.P. in regards to the business and its owner due to the presence of security cameras, it doesn't mean that that standard of R.E.P. translates to being filmed by any third party. Owners can justify the use of cameras to deter theft, etc. A third party can almost certainly claim no such justification (unless for instance, filming a crime in progress). And stores typically post signs alerting customers to their presence to give notice and cover themselves against potential liability. Furthermore, security footage is rarely disseminated to the public since doing so could open the distributor to civil liability or even prosecution since the use of cameras and resulting media is justified only for certain purposes, possibly quite limited in nature.

Also, another wrinkle is that even if you maybe able to legally record video, recording audio as well could place you in violation of state eavesdropping laws.
What is R.E.P.? I believe it's customary to first write out what an acronym means and then start using the acronym. You may have written it out earlier, but I didn't see it. Thanks.
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Old 03-24-2019, 03:04 AM
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Reasonable expectation of privacy. I think.
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Old 03-24-2019, 03:21 AM
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What I'm trying understand is why some people ( employees and store managers) say it's illegal. But filters and recorders say it's perfectly legal. Who is right? There must be a perfectly understandable explanation. Or, I don't know, maybe not. Where is the sticky point?
It's kinda a grey area. Well, some of it's pretty black and white, the grey area is what would happen to you if you, John/Jane Q. Citizen, actually recorded video in (for example) a Wal-Mart.

I've been a television news photographer for 20+ years. We receive some training in legal access stuff but not in any great detail. What someone in this thread called public accommodation, we always called public/private. That meant a location that was privately owned but was openly accessible to the public, like shopping mall or a restaurant.

I was taught that I needed to get permission to shoot in such a place but I did not need the consent of the people I videotaped in passing because they had no reasonable expectation of privacy (also because it's journalism, not for entertainment/profit* purposes).

IANAL but I as I understand it, Wal-Mart or any other public/private place can prohibit you from videotaping anywhere on their property (in most, if not all jurisdictions). Mostly, however, they're not going to care about some guy with a cell phone taking vids of his baby in the shopping cart so stuff like that happens everyday and it's no big deal.

OTOH, if you stick your phone in some employee's face the Walton-ites are gonna get cranky and tell you to desist immediately and likely, to leave the store as well. This is their right. Just like it'd be your right if I starting recording in your house. But they have no right to demand the media you're already gathered or to detain you in any way.




*yeah, we profit from it in a way because we sell ad time in the program they appear in (the news) but the purpose of the video is informative.
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Old 03-24-2019, 05:48 AM
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There is a difference between recording something on your phone, either to make a record of an interaction or because it's interesting, and making a commercial video. I guess that VLoggers are on the fringes of this distinction.

People often claim that things are illegal or against the rules when they are not. I think that it comes from a wish that it was illegal - to stop that guy from recording me - and something that they read on a forum or in a 'news'paper. Police are as prone to this as anyone else and even now they will attempt to stop people from recording their actions (not, of course, when they are being heroic).

The distinction between public and privates has many applications. An acquaintance was recently fined for using their mobile phone while driving through a supermarket car park. He was convinced that it was private property but not so - private 'roads' to which the public has access are subject to the same laws as highways.

Someone upthread mentioned schools. Of course, when it comes to filming children there is a whole other layer of law to contend with. A few years ago, some schools, fearful of some unidentified consequence, banned parents from videoing little Petunia or Peach Blossom as they performed in the school nativity. AFAIK, this is perfectly legal so long as the result is not published on social media or elsewhere without the express permission of all involved.

Video is everywhere now - almost everyone carries a video recorder and CCTV is ubiquitous - it's best to behave as if you are on camera at all times unless you are sure that you are not.
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Old 03-24-2019, 09:18 AM
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What is R.E.P.? I believe it's customary to first write out what an acronym means and then start using the acronym. You may have written it out earlier, but I didn't see it. Thanks.
It’s written out in the quote they are quoting (and set off in quotes itself as “reasonable expectation of privacy.”)
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Old 03-24-2019, 10:29 AM
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A couple additional comments. Again, IANAL.

Violation of the Federal statutes allows for civil liability as well. A person who has been recorded (oral communications) without consent may bring action for damages, including attorney's fees.

There may exist some implied consent. If the party being recorded does not object and is clearly aware of being recorded, that person is usually considered to have consented to the recording.

Most states have exceptions that specifically address recording by police or other parties. Most private parties (e.g., someone arguing with a cashier) are not protected under these laws.

Some notable two-party states include FL and IL. ALL parties must consent to being recorded in these states.

Last edited by ZonexandScout; 03-24-2019 at 10:30 AM.
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Old 03-24-2019, 06:30 PM
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I'm assuming all the voice recording no-no is from the previous century's laws on recording phone conversations or wire tapping. Is that correct?
Perhaps more that the previous century's laws on recording phone conversations or wire tapping come from the same expectation and demand for privacy that led to laws on voice recording.
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Old 03-24-2019, 07:51 PM
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A couple additional comments. Again, IANAL.

Violation of the Federal statutes allows for civil liability as well. A person who has been recorded (oral communications) without consent may bring action for damages, including attorney's fees.

There may exist some implied consent. If the party being recorded does not object and is clearly aware of being recorded, that person is usually considered to have consented to the recording.

Most states have exceptions that specifically address recording by police or other parties. Most private parties (e.g., someone arguing with a cashier) are not protected under these laws.

Some notable two-party states include FL and IL. ALL parties must consent to being recorded in these states.
Does this apply even if the person being recorded is in a public place? Is just being located in a public place implied consent by itself?

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Old 03-24-2019, 08:25 PM
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Does this apply even if the person being recorded is in a public place? Is just being located in a public place implied consent by itself?
In "One Party consent" states, you need no permission. In "Two party consent" states, implied consent may be tricky, but I don't think it would be a priority of the police to investigate, even if the law was defacto broken, at least concerning public place recording!
  #34  
Old 03-25-2019, 12:28 AM
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Originally Posted by LTU2 View Post
In "One Party consent" states, you need no permission. In "Two party consent" states, implied consent may be tricky, but I don't think it would be a priority of the police to investigate, even if the law was defacto broken, at least concerning public place recording!
I think someone else mentioned this upthread: doesn't two-party (or one-party) consent only apply to situations where a person has an expectation of privacy? Like a phone call or when you're out to dinner at a restaurant? If, on the other hand, I am marching in a public parade, or a spectator of the parade, do I have any right to complain about someone recording me?
  #35  
Old 03-25-2019, 06:47 AM
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I have no expertise on this, merely questions. What about the famous video of the two guys getting arrested at Starbucks for Sitting While Black--you know, the one that prompted Starbucks to close for a day for training? Nobody told the person filming to stop, but both video and audio were recorded--Starbucks manager, cops, customers, etc.? And what about those videos of white people calling cops because someone Black was barbecuing or something equally innocuous? Most of them show the obnoxious person's face, voice, etc. Or the videos of people doing stupid and dangerous things at zoos or national parks? These are all over social media and youtube, and I've seen some of them on news channels.

I'm unclear as to why those recordings are publicly displayed if they're illegal. Note I'm not saying they ARE legal, just that I don't understand how they're out there if they're not.
The mere fact that something is illegal doesn't prevent any given instance of it from happening; it merely provides a disincentive.

Also, the mere fact that something is illegal doesn't guarantee that every single instance of it will result in prosecution and/or a civil suit. IANAL, but AIUI, the injured party (i.e. someone who appeared in an illegally recorded video without their consent) would have to be aware that they were recorded illegally, and would then have to decide that it was worth their time and effort to pursue a case against the recorder.

Recorders who publicize illegally recorded videos may not realize that their recording was illegally made, or they may be willingly accepting the risk of of legal consequences as the potential price to be paid for publicizing a matter they feel is important.
  #36  
Old 03-25-2019, 07:56 AM
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The expectation of privacy generally applies only to video recording, not the interception and recording of private communications. Let's say you were in a public park and a couple was having a discussion nearby about their cute baby. If you make a video (picture and sound) and then post it, you have very likely violated Federal law, if not State law, by using a device to record a communication to which you are not a party.

Machine Elf is correct. It's highly unlikely that you would face prosecution...this isn't a high priority. But the couple mentioned in the example above could certainly report it to the proper authorities, contact an attorney, and seek damages.

The Gene Hackman move The Conversation is based on this type of scenario. It is obvious that he knows what he and his team are doing is illegal.
  #37  
Old 03-25-2019, 11:54 AM
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Originally Posted by ZonexandScout View Post
The expectation of privacy generally applies only to video recording, not the interception and recording of private communications. Let's say you were in a public park and a couple was having a discussion nearby about their cute baby. If you make a video (picture and sound) and then post it, you have very likely violated Federal law, if not State law, by using a device to record a communication to which you are not a party.

Machine Elf is correct. It's highly unlikely that you would face prosecution...this isn't a high priority. But the couple mentioned in the example above could certainly report it to the proper authorities, contact an attorney, and seek damages.

The Gene Hackman move The Conversation is based on this type of scenario. It is obvious that he knows what he and his team are doing is illegal.
Would the same apply if you took a video (no sound) of a couple communicating in sign language with their hands clearly visible?
  #38  
Old 03-25-2019, 12:04 PM
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Originally Posted by jjakucyk View Post
That's the main part of it. Essentially they deem you unwelcome for whatever reason (photography, loitering, wearing polka dot pants) and can ask you to leave. That said, they can not ask you to hand over your camera/memory card or to delete anything you've already recorded, which can be considered theft or coercion. The same goes for detaining you, which can be considered false imprisonment, kidnapping, or assault.
Just try telling that to the bouncers at the strip club and see how far you and your phone make it out the door.
  #39  
Old 03-25-2019, 02:02 PM
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Originally Posted by LTU2 View Post
In "One Party consent" states, you need no permission. In "Two party consent" states, implied consent may be tricky, but I don't think it would be a priority of the police to investigate, even if the law was defacto broken, at least concerning public place recording!
You have to be careful here. The one and two-party consent rules only apply to communications to which you are a party. If you are recording a conversation that you are not a part of where the parties have an REP then you need consent from either one of the actual parties to the conversation or all of them, depending on the jurisdiction. For context it's helpful to remember that some of these legal principles originated in the context of landline telephone communications. Obviously technological advancements have meant that those legal principles have had to evolve and adapt with the times. And these kinds of disputes are only going to become more common.

In a situation like the one described in the OP someone could be filming a conversation between themselves and a store employee about their dispute. In a one-party consent jurisdiction the filmer can provide consent and everything's kosher. But suppose the employee then calls over a manager to discuss the situation and they both step back several feet from the counter to quietly discuss store policy or whatever. Now there may be a problem if the filmer continues to record.

As to being in public, that would certainly be a factor to consider. But by itself on its face it's probably not automatically implied consent. First of all, "in public" is a somewhat nebulous phrase and can mean a lot of things. Anything from a few people sitting around in a coffee shop to the middle of a massive crowd at an outdoor music festival. And it could possibly be that someone could reasonably conclude their private conversation would be less likely to be overheard in the middle of a massive, noisy crowd than a quieter, less crowded location. Like any time a court tries to determine what is reasonable there is no mathematical formula. It all comes down to a variety of factors that are practically infinite in variety and scope.

Regarding the police being involved or possible prosecution, naturally someone has to care enough to bother to call them in the first place. And even if someone does so, it's probably enough to force them to stop or remove them from the property if possible. But if, for whatever reason, it's not enough to make them stop filming then it's possibly a big enough deal that a lawsuit will result. And pressing charges and bringing a criminal conviction for the same act as evidence goes a long way in winning that suit.
  #40  
Old 03-25-2019, 06:11 PM
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Good addition Dirk, it clarifies me better.

In Ohio the Culpable mental state to violate the law is "PURPOSELY" for the interception of an oral communication where there is a probable EOP by the speakers, that's a step above "KNOWINGLY".
  #41  
Old 03-25-2019, 06:27 PM
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Say a guy records himself and a customer service person in a dispute about a broken item. The customer is told in no uncertain terms to forget it. The item was used improperly and there is no receipt. The customer is pissed and goes home and posts it on YouTube and Facebook. The store PTB see it. They feel they were in the right Does the store have a case for slander?

Last edited by Beckdawrek; 03-25-2019 at 06:27 PM.
  #42  
Old 03-25-2019, 06:47 PM
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NO. A customer review that is not false or malicious is an expected part of business.

If a business could sue and win against any person who wrote/spoke a bad review, say goodbye to bad reviews by anyone, similar to a SLAPP lawsuit.
  #43  
Old 03-25-2019, 08:59 PM
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Originally Posted by Beckdawrek View Post
Say a guy records himself and a customer service person in a dispute about a broken item. The customer is told in no uncertain terms to forget it. The item was used improperly and there is no receipt. The customer is pissed and goes home and posts it on YouTube and Facebook. The store PTB see it. They feel they were in the right Does the store have a case for slander?
The scenario you've outlined really isn't fact specific enough to really conclude much either way but there's a few things to consider which may make things at least a little clearer. Keep in mind these are simplified, broad strokes.

Firstly, and this is in no way intended as a nitpick on your terminology, the advent and widespread use of video has blurred the traditional lines between libel and slander somewhat. Even though the statements in the video are spoken, the fact that they are fixed in a more permanent medium would mean they would probably be more properly classified as (allegedly) libelous rather than slanderous. It's become easier just to use the catch-all term(s) defamation/defamatory.

Next, if we put aside the other elements of defamation for a moment, the business must prove that the defamatory statements caused a loss of reputation. Depending on the particular facts that could be very easy (per se defamation) or very difficult to prove. But even if the loss of reputation can be proven there's always the consideration of whether damages can ultimately be collected in an amount sufficient to make litigation worthwhile.

Lastly, there is also a tort exclusive to businesses called commercial disparagement. It is similar to defamation and the differences can be somewhat nuanced in some instances. It occurs more often between business rivals but can be used to sue a customer as well (it also doesn't preclude an additional cause of action for defamation). But proving causality and damages for commercial disparagement can be even more difficult, possibly much more so, than for defamation.
  #44  
Old 03-25-2019, 11:56 PM
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Originally Posted by LTU2 View Post
NO. A customer review that is not false or malicious is an expected part of business.

If a business could sue and win against any person who wrote/spoke a bad review, say goodbye to bad reviews by anyone, similar to a SLAPP lawsuit.
Like I said in my previous post, I don't think the fact-pattern outlined by Beckdawrek is detailed enough to definitively say either way. And while the alleged libelous communication must be a false statement of fact (not pure opinion) it doesn't necessarily have to be malicious or made recklessly. That only applies to public figures and a business is not per se a public figure for defamation purposes.

There's nothing in the described scenario that absolutely precludes a legitimate claim of defamation given certain other facts. For instance, what if the customer, in the face of common sense and the manufacturer's recommendations, insists they were using the product properly when it broke. They maintain the store's refusal to issue a refund is because they are "crooks" and "liars." They then post the video of their confrontation along with a screed further accusing the store of bad faith, dishonesty, whatever. There could certainly be an actionable claim for defamation given those or similar facts.
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