Does Two-Party Consent Work Two Ways?

Question

I'm in a sketchy business establishment, having a dispute with the owner/representative.

Examples:

1. I'm at the front desk of a cheap motel, complaining about a lack of hot water in my room. The front desk clerk tells me too bad, so sad--it is what it is.

2. I'm in the lobby of a towing/impound company trying to pay the fee to recover my car. The clerk tells me I can't see my car until after signing a waiver acknowledging that there is no damage to the car.

3. I'm at a swap meet, paid for a product, and then discovered that the product I paid for is out of stock. The owner refuses me a refund, pointing to a "NO REFUNDS" sign behind the counter.

In all these types of situations, I would like to be able to record the conversation for the ensuing credit card chargeback / small claims court case. But I cannot, because I'm in a two-party consent state and of course the business would refuse consent if I asked They have everything to hide and nothing to gain by allowing me to record.

But now imagine that behind the counter is one of those signs: "SMILE!--YOU ARE ON CAMERA". Of course the business posted the sign for their benefit, not mine. But since they have claimed to be recording (whether or not they actually are), am I now allowed to record also? I mean clandestinely--I start a voice recorder on my phone without their awareness while attempting to negotiate a solution with each business owner/represantative.

If there is a general answer for all two-party consent states, then great. If not, then maybe individual answers for various two-party consent states would be helpful. I am in California.

Answer 1

Yes, but …

Different rules apply to audio and video.

In general, when talking of consent, you are referring to requirements for audio recording. Video recording does not generally require consent unless there is a reasonable expectation of privacy.

So, for your example, the display of the sign means both parties have consented to video recording (which isn’t usually necessary anyway) but not to audio recording.

Answer 2

The general answer is that consent applies to private situations, If you stand in the middle of the road, naked, screaming about the coming apocalyptic and maiming the occasional passerby that gets too close, you will be filmed, and there’s nothing you can do about it.

If you’re Clark Kent changing clothes in a public telephone booth, better hope nobody is filming it with a high speed camera.

In your first two scenarios you were definitely on private property, so they can require that you leave, but they can’t prevent videography. The third may be on public property and they wouldn’t even be able to do that.

Answer 3

since they have claimed to be recording (whether or not they actually are), am I now allowed to record also? I mean clandestinely

No.

By seeing their sign and not walking away you give your consent to their recording. Their consent to your recording does not magically materialize just because of that — you still have to explicitly seek it.