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Comment by newhotelowner | Hacker News Reader

Do you need 2 party consent for recording in a public space?

Edit: Another commenter has made me aware that some states do ban non-consensual audio recordings in public: https://www.dmlp.org/legal-guide/massachusetts-recording-law

The laws prohibiting these recordings have neither been upheld nor overturned by the US Supreme Court.

I think the real issue in this case is if they are marrying your voice data (personal preferences) to you. They get your name when you pay with credit card. And they get your license plate. And now with AI are they selling this married information?

That's what I'm getting at with the expectation of privacy part. Talking into a drive thru speaker isn't really a private activity since everyone around can kinda hear it, but it'd probably be better to disclaim it anyway since someone attempting to file on you for it still costs money.

Is there an easy effective way to tell a company not to ask its customers' phone numbers if someone parked nearby can overhear them?

They steer you towards ordering on the mobile app instead, which typically gives you a 4-6 digit confirmation code which you then use combined with your name, when you pick up. And/or your receipt in the app.

Strolling down the sidewalk at a park with a friend and chatting with them isn't necessarily a private activity either: We're in a very public space. Anyone within earshot can hear whatever we're talking about. If the sounds of our conversation winds up being incidentally in the background of someone filming the squirrels the tree frogs or something, then there's probably nothing to be done about that.

But (in some states), it seems that it would be a very different can of worms if I were to elect to deliberately record the conversation I have with my friend without their consent. Even in a public space, that would appear to run directly afoul of the applicable laws.

Depends on the country. In Finland, it's ok to record your own discussions. Whether the recorder is BK (a third party) or the cashier is an interesting question, though.

You don’t get to secretly record voices in public spaces.

Yes, You can in America. Video recording is permitted without consent in the public places. Example CCTVs.

Apparently the system was global, and BK has locations in GDPR countries.

Funny, whenever they show the CCTV footage it doesn't seem to have any sound....

Secretly recording voices is a felony is many places in 'merica.

Please stop spreading misinformation . There are so many court cases about this. A quick google will give you dozens you can read.

Legally there is no “reasonable expectation of privacy” in public spaces and the only limit on that are extreme telephoto lenses looking from public spaces into private spaces.

Edit: Another commenter has made me aware that some states do ban non-consensual audio recordings in public: https://www.dmlp.org/legal-guide/massachusetts-recording-law

The laws prohibiting these recordings have neither been upheld nor overturned by the US Supreme Court.

Unfortunately, you are not correct.[1] Recording police in a public place-- sure. Otherwise, eh, at best you're over-extrapolating (and ungenerously!) from your local circumstance.

[1] https://www.dmlp.org/legal-guide/massachusetts-recording-law

Okay, wow -- I stand corrected. I will edit my comments. It will take me awhile to wrap my head around Massachusett's-style state-level restrictions. While I wouldn't personally expect this to survive a Supreme Court adjudication, apparently there exists no Supreme Court ruling either upholding or striking down the prohibition on secretly recording oral conversations in public.

The key element here that everyone seems to be confused about, is secret vs non-secret.

If you have an obvious security camera, or an obvious camera that normally would record audio, and you’re in public waving it around and it records audio? You are not secretly recording audio.

Same if someone is standing next to a obvious and clearly visible security camera which normally could also record audio, also, not secretly recording audio.

A hidden mic in your jacket, or like in that case, hiding the camera under a jacket? That is hidden recording.

The general rule of thumb is - if everyone can clearly see what you’re doing, it’s not secret.

Audio cannot be recorded without consent in CA. Security cameras have an option to disable audio for this reason. People never do it but it's the case.

It's related to wiretapping laws that are very broad.

California or Canada?

<nerdsniped> and removed so that i don't get sued for gross misinterpretation, ignorance and misinformation spreading.

What was here was a link to a California statute that is apparently misinformation somehow. Who knows, I'm just some igorant redneck apparently.

Did you read that law? It applies to “Confidential communication…carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio”. Conversation in public is by nature not “confidential”. You are grossly misinterpreting this law and (unintentionally/ignorantly) spreading misinformation.

Edit: Another commenter has made me aware that some states do ban non-consensual audio recordings in public: https://www.dmlp.org/legal-guide/massachusetts-recording-law

The laws prohibiting these recordings have neither been upheld nor overturned by the US Supreme Court.

Grossly misinterpreting and spreading misinformation? I clarified a location and linked to the relevant statute.

You may have a smudge on your optics, mr. sniper.

> For the purposes of this section, “confidential communication” means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

This is not confidential communications.

Only if there is an expectation of privacy.

If there is a big obvious security camera staring at you, in a public place, that is the opposite of an expectation of privacy.

That is a farily broad statement.

How would you reconcile your statement against state laws that require all-party consent for audio recordings? e.g. CISA, or FSCA

Those don’t apply to public spaces in the USA. This is super well-established law. If you needed consent to record in public there would be nearly zero YouTube videos recorded in public. And security cameras would generally not be allowed to record audio. And Tesla’s “Sentry mode” would be illegal.

In the USA, there is no right or legal expectation of privacy in public spaces, which includes fast food restaurants that are open to the public (indoors or outdoors)

Edit: Another commenter has made me aware that some states do ban non-consensual audio recordings in public: https://www.dmlp.org/legal-guide/massachusetts-recording-law

The laws prohibiting these recordings have neither been upheld nor overturned by the US Supreme Court.

Sentry mode doesn’t record audio.

I've had some challenges recording voices with video, but I salute your efforts.

Different states have differing laws regarding recording conversations. In some states both parties in conversation must consent to recording: https://www.justia.com/50-state-surveys/recording-phone-call...

Thats only for private phone calls not for public spaces.

Edit: Another commenter has made me aware that some states do ban non-consensual audio recordings in public: https://www.dmlp.org/legal-guide/massachusetts-recording-law

The laws prohibiting these recordings have neither been upheld nor overturned by the US Supreme Court.

I could easily see a judge regarding the conversation over a drive thru speaker as not a public space and more like a telephone call.

Edit: Apparently some states do ban non-consensual audio recordings in public: https://www.dmlp.org/legal-guide/massachusetts-recording-law

The laws prohibiting these recordings have neither been upheld nor overturned by the US Supreme Court.

I wouldn't chance it. Stick an "audio may be recorded for performance evaluation purposes" on the drive thru kiosk and call it a day. Otherwise you're inviting litigation when something like this happens.

You can want things to be black and white but litigators are going to argue.

No expectation of privacy in public and video can be taken. For example, security cameras that also happen to capture audio.

in which jurisdiction? Just because there's a device that breaks the law doesn't make the law go away.

Katz v. United States (1967)

Glik v. Cunniffe (1st Cir. 2011)

I don't see how either of those cases apply to regular people making recordings of regular citizens (in public, or not) using a microphone.

I was referring to video with a camera which has a microphone

As was I.

But to extend the context: I don't see the relationship of either of those cases to anything being discussed here at all.

Drive thru conversations are not private under the Katz test, so there is no reasonable expectation of privacy. That makes video or audio recording in that setting lawful.

Katz came about because the FBI recorded a gambler outside the booth with the doors closed. Hence we have the Katz test.

Heck, you can even record someone making a drive thru order yourself and no one can do anything about it

If the question was about whether a warrant would be required to record a person at a Burger King drive-through, then sure: I'd bite.

But that kind of question does not appear to be related to anything in the context of the discussions here on HN.

You seem to have presented a red herring.

Not a red herring. The Katz test defines when a conversation is private, and a drive thru order does not meet that standard, so recording there is lawful even when it is done by a private person and not by law enforcement.

This is not related to public spaces.

> You don’t get to secretly record voices in public spaces.

> Video recording is permitted without consent in the public places.

I have no idea why you would think that these two statements are related, or why people would continue this conversation. Fishing and skateboarding are two other things that are often allowed, but neither are related to recording audio.

And for anyone who thinks this is a nitpick, please look it up.

edit: also, saying that you can record people when you're obviously recording people is also not relevant. The problem is recording people without their knowledge or consent. I cannot put an audio recorder in my pocket in many places (such as Illinois) and record you, whether in a private space or in a public space. If I put my audio recorder on the table, and you can choose whether you want to speak or not, it's legally an entirely different scenario, whether we are in a public space or not.

In Australia, at least in the late 90s, you were allowed to record voice and video without consent or notification of all parties, but you were not permitted to play/show the recordings to anyone else.

This was well know amongst the sort of people who regularly got harassed by police (in my circle of friends, riders of sportsbikes). There was well known legal advice saying to record every interaction you had with police, and if it turned out badly in any way, as soon as you got home write down the transcript of the conversation as "contemporaneous notes" and email them to your gmail account to establish a timestamp. But the only time you ever even mentioned your recording would be to your lawyer, so that if the cop challenged or contradicted your notes in court, your lawyer could then offer the recording as evidence.

These days, dashcams are pretty ubiquitous, and demonstrate that whatever the legal technicalities are, video recording in public without consent is not only widespread, but bashcam footage is also something police regularly request from the public.

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