March 22, 2019 Substantive Law

Expectations of Privacy in Audio and Video Recording in a Family Law Context

By Rose L. Hubbard

Reprinted with permission from Family Advocate, Winter 2019 (41:3). ©2019 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Several years ago, I was traveling with my brother and his family to a funeral. He and I were having a vigorous discussion over whether it was appropriate for him to try to program his GPS while driving on winding mountain roads. After he put his hands back on the steering wheel, his preteen daughter began playing an audio-video recording of our discussion. He thought she was the cleverest girl in the world to record an adult conversation without the adults knowing she was doing it. I was not so amused. I made it very clear to my brother that the recording was illegal, and beyond that, it was a poor example of appropriate behavior, both on his part, for thinking it was clever, and on his daughter’s part, for doing it. His response was simple: get with the program, Rose, this is the age of the cellphone and tablet, where everyone is recording everything all the time. It’s just the way the world works.

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