An individual not involved or present at a conversation must have the consent of at least one party in order to legally record an in-person, telephone or electronic communication.
Recording such conversations without consent is a felony under Arizona law. The state also allows for civil suits for violations of its eavesdropping laws.
Violations of the hidden camera law are also felonies.
Consent from at least one party is required for the recording of an in-person conversation. Ariz. Rev. Stat. Ann. § 13-3005.
The statute defines “oral communication” to be one in which a person has a justified expectation that the conversation will not be intercepted. Ariz. Rev. Stat. Ann. § 13-3001. However, in what may have been an error by the legislature, the section requiring one party’s consent, § 13-3005, does not actually use the phrase “oral communication.” Therefore, it is not clear whether the statute explicitly only applies to situations in which there is a reasonable expectation of privacy.
A state appellate court, however, read the statute to have such a limitation in 1984, even before the definition of “oral communication” was added to the statute. In Arizona v. Hauss, the Arizona Court of Appeals held that a criminal defendant’s contention that police officers violated the state’s eavesdropping law by recording a conversation between him and his girlfriend without his consent was meritless because the pair had no reasonable expectation of privacy in a police interrogation room. 688 P.2d 1051 (Ariz. Ct. App. 1984).
A person cannot use any device to overhear or record a telephone or electronic communication, including wireless or cellular calls, without the consent of at least one party to the conversation, unless the person recording is a party to the conversation. Ariz. Rev. Stat. Ann. § 13-3005.
Because the provision of the statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data or intelligence” of any nature, consent of at least one party likewise is required to disclose the contents of text or email messages sent between wireless devices. Ariz. Rev. Stat. Ann. § 13-3001.
It is unlawful for an individual to photograph, videotape or secretly view a person without consent while the person is in a restroom, locker room, bathroom or bedroom or is undressed or involved in sexual activity, unless the surveillance is for security purposes and notice is posted. Ariz. Rev. Stat. Ann. § 13-3019.
Intercepting the contents of any in-person, telephone or electronic communication without the consent of at least one party is a felony. Ariz. Rev. Stat. Ann. § 13-3005. Violation of the state’s hidden camera law is also a felony. Ariz. Rev. Stat. Ann. § 13-3019(D).
Punishment can range from court fines to sentences of anywhere from six months to more than two years in prison. See Ariz. Rev. Stat. Ann. §§ 13-702, 13-801.
Any person whose communications are illegally intercepted in violation of the state’s eavesdropping laws may bring a civil suit within one year of the discovery of the violation to recover for damages, attorney fees, and any profits made by the person disclosing the information. Ariz. Rev. Stat. Ann. § 12-731. In some cases, the court can also assess punitive damages.
Arizona prohibits disclosure or publication of photographs, videotapes or recordings made in violation of the state’s hidden camera law. Ariz. Rev. Stat. Ann. § 13-3019(B).
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, see this guide’s introductory chapter here.
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 Ninth Circuit, which includes Arizona, has held that there is a First Amendment right to record matters of public interest in public places, which “includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); see also Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).