What are the all-party consent states for audio recording and how do they affect filming ICE?
Executive summary
All-party (often called “two-party”) consent states require that every participant in a private conversation agree before audio can be recorded; most states, the District of Columbia and federal law follow one‑party consent, but a smaller group of states imposes all‑party rules (reporting varies between about 11–12 states) [1] [2] [3]. In practice, courts and civil‑liberties groups say filming ICE in public — including video and often ambient audio — is protected by the First Amendment and state exceptions for public officers, though local wiretap statutes and factual nuances (where the recording occurs, who is speaking, whether there’s a reasonable expectation of privacy) can change the legal risk [1] [2] [4] [5].
1. What “all‑party” consent means and where it matters
An all‑party consent law makes it a criminal or civil offense to record an oral communication unless everyone who is a participant agrees, which contrasts with the majority of jurisdictions that allow a recording when one participant consents [3] [1]. Reporting and state‑by‑state surveys identify roughly 11–12 all‑party jurisdictions — commonly listed examples include California, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington, with some sources flagging nuances or contested language in Connecticut, Michigan and Nevada — and different organizations cite slightly different counts because statutes, case law and exceptions shift over time [2] [1].
2. Why public‑space encounters with ICE usually look different
Many analyses stress that recording officers in public is treated differently under both statutory exceptions and the First Amendment: when an interaction is audible to passersby or occurs in a public place where there’s no reasonable expectation of privacy, courts and civil liberties groups have generally allowed audio and video recording even in some all‑party states [1] [2] [5]. Legal guidance from groups like the EFF and NYCLU explains that bystanders who can hear an officer speaking to someone in public can typically lawfully record that interaction whether the state is one‑party or all‑party [1] [4].
3. Case law and law‑enforcement claims against recorders
Law enforcement agencies have sometimes threatened wiretap prosecutions for covert audio recording, but courts have repeatedly rejected expansive claims that wiretap statutes bar recording on‑duty officers; for example, the Seventh Circuit held Illinois’s wiretap law unconstitutional as applied to recording police [1]. Still, this is an unsettled mix: state court interpretations, prosecutorial discretion and differences between audio that captures private speech versus public interactions can produce real legal risk in some locales [1] [2].
4. Federal actors, DHS guidance, and commercial filming
Federal law (the federal Wiretap Act) is generally one‑party by default, but DHS has its own guidance: third‑party production companies filming interactions between officers and noncitizens in public locations are governed by DHS rules that in practice can require consent for certain uses, and ICE and DHS themselves routinely record and distribute footage — a distinct set of issues from private citizens filming at the scene [1] [6]. This means commercial or embedded filming can trigger agency policies beyond state wiretap statutes [6].
5. Practical takeaways and limits of available reporting
The safest reading of the sources is that filming ICE in public — video and ambient audio — is broadly protected, that bystanders who can hear the exchange are usually permitted to record even in many all‑party states, and that prosecutions for bystander recording have generally not succeeded in courts that have faced the question [1] [2] [4]. However, statutes vary, some states list explicit exceptions, and a recording that shifts into a private space, captures private conversations, or involves crossing state lines or commercial production can raise legal exposure; the precise list of all‑party states and the contours of exceptions change over time, so the sources recommend checking current state statutes or a local attorney for definitive, up‑to‑date advice [2] [7].