Laws on Video Recording in Colorado
The overarching governing principle for video recording in the State of Colorado is that all persons generally have the right to record video of things that are plainly visible to the public, from a place where the person is legally entitled to be, and so long as the recording does not otherwise interfere with an ongoing government function. Pursuant to C.R.S. § 18-9-116.7, it is illegal to use video recording devices to record persons without their consent in the following locations:
As a practical matter, nearly all video recording restrictions under Colorado law are limited to these types of locations or situations. In addition to these restrictions, there are a number of limitations to the use of video recording technology that do not involve recording someone without his or her consent. For example, C.R.S. § 18-9-117 prohibits the use of drones "with the intent to investigate, or to photograph, another individual." In addition, pursuant to C.R.S. § 18-9-117(4)(d), it is illegal to operate an unmanned aircraft "with the intent to record or capture an image of another individual without the individual’s consent, that remotely transmits images of the other individual to a different location or places the recorded image or any portion of it on a database, and makes the recorded image publicly available unless the recorded image is part of a recording of an event that is publicly open to the public, such as a sporting event . "
The criminal provisions for unlawful video recording, as defined under C.R.S. §§ 18-9-117 and 18-9-116.7, are primarily misdemeanor offenses. Individuals convicted of possessing recordings that were illegally recorded, either with or without consent, can face restitution costs and civil monetary damages in addition to any statutory criminal penalties. Whether someone possesses video that was otherwise legally recorded but is used for illegal or improper purposes (like blackmail or harassment) is a separate inquiry that is usually considered under existing laws relating to the blackmail or distribution of private images, which vary from municipality to municipality. The City of Colorado Springs recently approved a municipal ordinance prohibiting the intentional or unintentional capture of another person’s image under C.R.S. § 18-9-117 (recording another person without his or her consent) or C.R.S. § 18-9-111 (illegal use of photographic or mechanical device), places where the person has a reasonable expectation of privacy. The ordinance specifically applies to "bathrooms, changing rooms, locker rooms — whether public or private."
Recording Consent Requirements
As a matter of general law, people need to give their permission to be recorded. The law of consent is different from the law of protection from invasions, in that it is generally regarded as vital to organize a society for people to have control over the preservation of their image. Whereas the law of protections is geared toward protecting society from people taking advantage of each other, which has negative implications for society as a whole (the destruction of social trust), legitimate recordings may be of benefit to people individually.
In Colorado, one-party consent is the law, meaning that only one of the people being recorded needs to give permission to be recorded.
The law of "one-party consent" simply means either that the person doing the recording must be given permission by the person(s) being recorded to do the recording, or that at least some of the people being recorded must be okay with being recorded. Essentially, it is necessary for the individual doing the recording to be aware of the recording and agree to it.
In practice, it is difficult to determine whether the law of one-party consent has been violated, because one would expect the individual recording to either not disclose or conceal the recording from the person being recorded, otherwise the recording may be illegal.
Public Recording vs. Private Recording
Unlike many other states, you are allowed to record in a public place in Colorado. The only caveat is that the public space must be free of any reasonable expectation of privacy. This means you probably won’t get into trouble recording at a public event or in a park.
The majority of the public places one would want to record in Colorado, such as on the street or at school, meet the above criteria. Colorado generally does not have criminal ramifications for recording a conversation without consent in a public place, however, it is always best practice to ask others for consent to record.
Some places where you may not easily record include the following:
Because of the large number of public spaces one may want to record, a common legal concept to be cognizant of is "public discourse." As long as you are recording people in a public place, properly identified, and not impeding a legitimate business, school, etc. you should be fine. The best practice is to not record or insist on recording in the areas mentioned above, but the law allows leeway for all other public spaces.
Legal Ramifications of Illegal Video Recording
Violating Colorado’s video recording laws is not merely a matter of etiquette or respect for privacy. Instead, doing so can carry serious legal penalties, including fines and possible incarceration.
The legal framework of video recording laws in Colorado represents a balance between the right to electronically record activities in which you are involved and the right to privacy for those you are recording.
At the same time, violating the law is an extremely significant matter. Violating these laws is not simply a civil matter; it is a criminal charge, and as such can come with significant penalties.
If you violate the law without malice intent, a violation is considered a petty offense. Under Colorado law, a petty offense results in penalties of up to $500 in fines. If you are a student at an institution of higher education and you illegally recorded other students, you may be charged with a petty offense as well. Students may also face disciplinary action from their institutions.
If you violate the law with malice intent, you can be charged with a class 1 misdemeanor. A class 1 misdemeanor may result in fines up to $5,000 and up to 18 months of jail time.
In cases with multiple victims, each victim constitutes a separate count of the crime. Thus, if you were to record 10 different individuals in a certain setting, you could potentially be charged with 10 different counts.
Whether or not you have faced charges for illegal video recording may not alter your situation with the people you recorded. For example, in the event that former friends or colleagues discovered that you have recorded them and they file a civil case for invasion of privacy, it may amount to anything from a nuisance to an attention-drawing situation which affects your personal and professional relationships.
Civilly speaking, the victims have the right to sue not only for damages but also for attorney’s fees, though it is generally up to the judge to award fees.
Recording in Certain Circumstances
For ethical and legal reasons, not all scenarios are equal when it comes to recording. Whether you are in a workplace, in your own home, or in a private establishment (like a store, restaurant, or office), the circumstances are going to dictate whether and how you can legally record.
Recording the Police
The 1st and 4th Amendment guarantees the right of citizens to record police officers during traffic stops and other encounters, yet cops have still been known to prohibit recording and destroy recording devices. Police are frequently ignorant of recording laws and the Constitution that protects this right. In Colorado, unless there’s a law against it, you are allowed to film the police if you are not interfering or committing an obstruction of justice. The Colorado Supreme Court has ruled that filming the police is protected by the First Amendment, and the ACLU of Colorado offers guides on how to film police.
Recording in the Workplace
Even in states that are one-party consent when it comes to recording conversations , recording in the workplace is a different story. Employers generally have the ability to fire employees for recording others on company property. They may have policies that limit what can be done on company property and what can’t, including recording others. Most employers post these policies so as to put their employees on notice, and those who violate them can be fired. However, if a person records another employee engaging in illegal behavior, then some states prohibit firing them for doing so. If the employee is expecting privacy, even in a common area, that raises issues.
Recording in Your Own Home or Private Establishments
In your own home, the rules are similar to general expectations of recording others in public. However, in private establishments (like a store or restaurant), the property owner may ask you to leave. Again, if you anticipate privacy, that complicates matters. However, upon request, you have to comply.
How to Legally Make Video Recordings in Colorado
It’s illegal in Colorado to record video without permission if it’s in a place where an individual has a reasonable expectation of privacy, such as in their home, bathroom, on a secluded porch, or their bedroom window. There are some exceptions, such as security cameras that monitor public areas, but generally, you should be aware of the following points when recording someone in Colorado:
- A person can consent to being recorded by you. A waiver is implied if you are both aware of the recording and engage with the person in conversation. If you place your video camera where it is highly unlikely that anyone would or could give their consent (e.g., aiming your phone camera through a crack in someone’s fence), you likely would not be able to rely on someone’s knowing consent.
- It could be considered illegal to video someone in a place where they would have a reasonable expectation of privacy. A very common example is recording someone through a bathroom stall. In addition to violating video recording laws, you could also subject yourself to a potential claim for invasion of privacy.
- If the recording of an individual occurs in a place open to the public and you have a specific purpose for recording, such as to document something happening in the public area, then you do not need the consent of anyone being recorded in the video. However, if your sole purpose for filming someone is to demonstrate their behavior, then you may have crossed the line into a privacy violation, particularly if you would not subject yourself to such behavior.
- It’s usually permissible in Colorado to place a video camera in a public area and record individuals if the people are generally or potentially visible to the general public. However, this does not mean you can post your video camera on someone else’s property or house to obtain the footage.
- For landlords, tenants are generally allowed to videotape inside their unit provided they are not invading anyone’s right of privacy. In homes, if you plan to put up security cameras to monitor places where people might normally expect some level of privacy, you should consider getting permission from occupants.
FAQs
Can I record a video of conversations that I’m having with someone else over the phone?
You can legally do this in Colorado as long as there’s no one else on the phone.
If a friend gives me permission to record their conversation with another person, am I exempt?
No. In Colorado, one-party consent to recording or video taping requires that no one outside of the two people actually engaged in a conversation are able to hear them. Once someone outside of that conversation can bear witness to your discussion, you would no longer be protected.
So if a friend and I get together in a private place to record a voice message and I have her permission but she leaves a window open and it’s audible to people outside, am I exempt?
No . In Colorado, the law only supports private conversations between two people having a discussion. Hence, once the conversation is happening in an area that is susceptible to being heard by others, you open yourself up for legal liability.
If I post something online, is that considered public domain?
Yes. If a picture is taken or video is made of a person and then posted to the internet, it is automatically considered public domain and protected under Colorado law as long as it was taken on the street or inside a location such as a movie theater or restaurant where people would realistically be coming and going.
