Reporter's Recording Guide
Last updated May 2020
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Summary
Maine bars the recording, interception, use or disclosure of any in-person or telephonic conversation without the consent of at least one party to the conversation. However, the state requires the consent of all parties to record conversations occurring in places like dressing rooms and bathrooms.
The state also prohibits the recording and disclosure of images or audio intercepted in violation of its privacy laws.
Violators can face both civil and criminal penalties.
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In-person conversations
A person may not use a device to hear or record — or have another person use a device to hear or record — a private conversation unless she or he is a participant in the conversation or received consent to record from at least one of the parties to the conversation. Me. Rev. Stat. Ann. Tit. 15, §§ 709, 710. Additionally, the recording of conversations occurring in “private places” — which include “changing or dressing rooms, bathrooms and similar places” — requires the consent of all persons entitled to privacy in that place, if the sounds would not ordinarily be audible or comprehensible outside that place. Me. Rev. Stat. Ann. tit. 17-A, § 511.
However, a person does not need consent to record conversations in places in which the parties do not have a reasonable expectation of privacy, or conversations within the person’s range of normal unaided hearing. Me. Rev. Stat. Ann. Tit. 15, § 709.
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Telephone and electronic communications
Similarly, the statute prohibits the willful or intentional interception of — or having another person intercept — any telephone or other wire communication absent the consent of at least one party to the communication. Me. Rev. Stat. Ann. tit. 15, § 710.
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Hidden cameras
The state’s privacy law makes it a crime to install or use a recording device in areas where one may reasonably expect to be safe from photo, video or audio surveillance, “including, but not limited to, changing or dressing rooms, bathrooms and similar places.” Me. Rev. Stat. Ann. tit. 17-A, § 511. The law also prohibits the concealed visual surveillance in public areas of an individual’s body either under or through that person’s clothing without that person’s knowledge or consent. Me. Rev. Stat. Ann. tit. 17-A, § 511(1)(D).
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Criminal penalties
Illegally recording or disclosing the contents of an oral or telephone conversation is punishable by up to five years in prison and a $5,000 fine. Me. Rev. Stat. Ann. tit. 17-A, §§ 1604, 1704.
Violation of the state’s privacy law is a Class D crime punishable by a jail sentence of less than one year and a $2,000 fine.Id.
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Civil suits
Anyone whose communications have been recorded, intercepted, disclosed or used in violation of the law can sue for civil damages and recover the greater of $100 a day for each day of the violation or actual damages, and also attorney’s fees and litigation costs. Me. Rev. Stat. Ann. tit. 15, § 711.
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Disclosing recordings
Anyone who discloses or uses the contents of recorded or intercepted communications, knowing the information was obtained illegally, violates Maine’s interception law. Me. Rev. Stat. Ann. tit. 15, § 710.
The privacy law also prohibits the dissemination of private images of another, identifiable person in the nude or engaged in sexual conduct without that person’s consent andwith the intent to harass, torment or threaten. Me. Rev. Stat. Ann. tit. 17-A, § 511-A. This prohibition does not apply to “[i]mages involving voluntary exposure in a public or commercial setting,” or when there is a “public or newsworthy purpose.” Id.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful.See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, seethis guide’s introductory chapter here.
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Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the First Circuit, which includes Maine, has held that there is a First Amendment right to record “government officials in public spaces.” Glik v. Cunniffe, 655 F.3d 78, 87 (1st Cir. 2011). This includes filming and audio recording “police carrying out their duties in public,” such as during traffic stops, so long as the officer cannot “reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.” Gericke v. Begin, 753 F.3d 1, 7–8 (1st Cir. 2014).
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