Can You Record Someone without Consent in SC?
Today, studies show that 86.41% of the global population has a smartphone. The U.S. is no exception, as our country ranks as one of the leading nations in smartphone usage. In a world dominated by TikTok, Instagram Reels, and other streaming platforms, it probably comes as no surprise that there are federal and state laws in place to regulate recordings and consent.
In addition to federal regulations, each state enforces its own unique laws when it comes to recording someone without permission. What many people fail to realize is that violating recording laws is a criminal offense punishable by fines and prison time, making it all the more crucial to understand what constitutes illegal recording in South Carolina.
When Is Recording Someone Illegal?
Under South Carolina Code §17-30-20, it is a felony to illegally record someone. This begs the question: When is recording against the law?
First, it's necessary to have a basic understanding of how U.S. states are classified when it comes to unlawful recordings. Each state is classified as one of the following:
One-Party Consent States
South Carolina is classified as a one-party consent state, meaning that it is a criminal offense to use a device to share or record wire, oral, or electronic communications without the consent of at least one participant.
For example, if you recorded a conversation between yourself and another individual without their knowledge, this would be considered legal in the state of South Carolina.
On the contrary, if you record a conversation between two people without being an active participant yourself, this is a criminal offense that is punishable by fines and imprisonment under South Carolina law.
All-Party (Two-Party) Consent States
Unlike one-party consent states, other states identify as all-party (two-party) consent states. In an all-party consent state, it’s illegal to record or share wire, oral, or electronic communications without permission from all involved parties.
This means that if you record a conversation between yourself and another individual without the other person’s permission, you can be charged with a felony.
The Federal Wiretap Act of 1968
In addition to state regulations, there are federal laws in place to protect Americans from being unlawfully recorded without consent. The Electronic Communications Privacy Act (ECPA) was enacted in 1968 as part of the Omnibus Crime Control and Safe Streets Act. Today, ECPA is commonly referred to as the Federal Wiretap Act.
Under the Federal Wiretap Act, it’s illegal for any person to secretly record an oral, telephonic, or electronic communication that participants reasonably expect to be private.
What does “reasonable expectation of privacy” mean?
Even in one-party consent states like South Carolina, it’s illegal to record communications in which involved parties have a reasonable expectation of privacy. There is no single definition for this legal condition, as it depends on the nature of the captured conversation.
A major influencing factor is whether the communication was recorded in private or in public. For example, recording a conversation in a person’s home or private dressing room is very different from recording at a party or in a crowded workplace breakroom.
Penalties for Nonconsensual Recordings in South Carolina
Under §17-30-20, an individual may be charged with a felony for engaging in or procuring another person to engage in one or more of the following acts:
- Intercepting any wire, oral, or electronic communication;
- Using any device to intercept oral communication when 1) the device is affixed to or otherwise transmits a signal through a wire/cable or 2) the device transmits communications by radio or interferes with the transmission of the communication;
- Disclosing or using communication with reason to know that the information was illegally obtained;
- Disclosing communication when that person has reason to know that the information was obtained in connection with a criminal investigation; or
- Using a device or service that causes the telephone network to display a number on a recipient's caller identification display that is different from the originating device.
Punishments for these violations are detailed in the SC Code of Laws §17-30-50. The act of recording nonconsensual communications is a criminal offense that can be charged as a Class F felony (least severe) up to a Class A felony (most severe) depending on the circumstances.
Penalties for these felony offenses can vary and are punishable by 5 to 30 years in prison.
Eavesdropping, Peeping, & Voyeurism in South Carolina
Voyeurism is a serious criminal offense that, while similar to the act of illegally recording someone, is classified as a sex crime in South Carolina. An individual is guilty of voyeurism when they knowingly view, photograph, record, film, or otherwise produce digital content of another person engaging in sexually explicit activities without their knowledge and consent.
Voyeurism is classified as a misdemeanor or felony under SC Code of Laws §16-17-470. The following penalties apply:
- The first offense is a misdemeanor punishable by a maximum fine of $500 and up to 3 years in prison.
- The second or subsequent offense is a felony punishable by a maximum fine of $5,000 and up to 5 years in prison.
Are Illegal Recordings Admissible Evidence in Court?
Whether or not a recording is admissible evidence in a court of law is up to the judge or magistrate presiding over the case. In South Carolina, an illegally obtained recording may not be used as evidence in a trial or court proceeding.
However, there are some exceptions to this rule. The South Carolina court may permit an illegally obtained recording to be used as evidence under the condition that the state is prosecuting the defendant who created it.
Our Firm Can Help Restore Your Freedom
Being charged with a crime can be terrifying. It’s normal to feel overwhelmed or unsure of how to proceed. Whether you were falsely accused or made an honest mistake, it’s imperative to seek immediate legal counsel from a trusted criminal defense attorney who can defend your rights in court.
Criminal offenses in South Carolina carry severe penalties that can impose lasting consequences on your life. Forgoing legal representation in a criminal case can jeopardize your future. At the Law Office of James R. Snell, Jr., LLC, we know that no case is hopeless. Our firm believes that every client is deserving of experienced legal representation, which is why our skilled criminal defense lawyers are here to advocate fiercely on your behalf.
We have a longstanding record of success in criminal defense and are ready to provide the same-day attention you deserve. Reach out today to learn how our experienced Lexington criminal defense attorney can help restore your freedom.
If you’ve been charged with a crime, it’s imperative to seek legal counsel immediately. Our firm can help protect your rights. Call (803) 359-3301 to request a free consultation.
Free consultations are available only for those facing a criminal charge or criminal investigation in South Carolina. We are not able to provide consultations to those seeking general information on their rights either to make recordings or who feel that their rights were violated by being recorded.