Can parents legally record interactions with government social workers, law enforcement, or others? Must they provide notice that the conversation is being recorded or otherwise get consent?
Not surprisingly, the answers to these questions differ by state. Unfortunately, most states do not have a specific law governing whether a citizen may record a law enforcement officer, and no state has a specific statute regarding recording of government social workers.
The laws that govern are typically referred to as wiretapping and eavesdropping statutes. While wiretapping brings to mind using a device to tap a physical phone line for the purpose of eavesdropping on a conversation–a circumstance very different from filming a social worker or officer on the porch –the definitions found within the statutes indicate that wiretapping laws are generally applicable to both contexts.
State wiretapping laws generally fall into two categories:
- One-party consent: This means only one party to a conversation must consent in order for the conversation to legally be recorded.
- All-party consent: This means all parties to a conversation must consent in order for the conversation to be recorded, even if the party recording is also a party to the conversation.
In one-party consent states, being a party to a conversation generally makes it legal to record it even if with a law enforcement officer or social worker. In all-party consent states, notifying the officer or social worker that one is recording should be sufficient to constitute consent.
In several states, some of these all-party consent statutes have been overridden by caselaw establishing a right to record law enforcement even without their consent. Caselaw has generally applied a constitutional right to record under the First Amendment’s Free Speech and Freedom of the Press clauses.
While the U.S. Supreme Court has not yet addressed this issue, several of the federal circuit courts have ruled that the right to record exists, thereby permitting it within the states in those circuits.¹ As a result, about half of the states in the U.S. have a “right to record” under federal appellate caselaw. It’s important to note that this right has been interpreted to include several limitations, including that:
- The right to record is specific to recording law enforcement officers carrying out their official duties in public.
- The person recording may only do so from a lawful vantage point. In other words, the person recording cannot trespass.
- The recording must not inhibit law enforcement officers from performing their duties (doing so would likely be a criminal offense).
- The right may be subject to other time, place, and manner restrictions.
A few states (Maryland and Michigan) are all-party consent states in federal circuits which have not yet ruled on the issue, but there are federal district courts within those states that have found a constitutional right to record law enforcement.2
Other related laws deal specifically with video surveillance in the context of a criminal violation of privacy. These laws usually only apply if the person being videoed has a “reasonable expectation of privacy.” If this is the case, the person videoing must obtain consent.
When it comes to social workers, neither statutes nor caselaw have addressed whether they are included in the right to record. While social workers are analogous to law enforcement in Fourth Amendment issues, this has not yet been interpreted one way or the other regarding First Amendment issues.
Overall, it is generally legal to record law enforcement officers and social workers during a home visit or investigation. The legality of recording a phone conversation without their consent will entirely depend on the laws that apply to that state. States courts vary and can even be inconsistent when applying the law to recorded phone calls which occur in both one-party and all-party consent states.
Members are encouraged to review the Law & Policy page on this subject in order to gain a better understanding of the law in their states.
If you are a member of Heritage Defense and still have questions after reviewing our Law & Policy page about Recording Government Social Workers and Law Enforcement, please contact our office to schedule a consultation with one of our attorneys.
Also for members, if a social worker comes to your door, before thinking about recording or doing anything else, just say, “Excuse me one moment while I get my attorney on the phone.” Then call Heritage Defense.
If you are a Christian homeschooling family but are not yet a member of Heritage Defense, learn more about joining today!
1These Circuits are the First Circuit: Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); the Third Circuit: Fields v. City of Phila., 862 F.3d 353 (3d Cir. 2017); the Fifth Circuit: Turner v. Driver, 848 F.3d 678 (5th Cir. 2017); the Seventh Circuit: ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (specific to audio recording); the Ninth Circuit: Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); Askins v. United States Dep’t of Homeland Sec., 899 F.3d 1035 (9th Cir. 2018); the Tenth Circuit: Irizarry v. Yehia, 38 F.4th 1282 (10th Cir. 2022); and the Eleventh Circuit: Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
2Hulbert v. Pope, 535 F. Supp. 3d 431 (D. Md. 2021); Craft v. Billingslea, 459 F. Supp. 3d 890 (E.D. Mich. 2020)