Covert Audio and the Law

At Supercircuits, we work closely with law enforcement agencies to provide a wide array of covert surveillance technologies including covert audio gear. Our commercial sales division routinely receives calls with questions about covert video surveillance and covert audio surveillance from both businesses and end-users.

The biggest question regarding covert audio is if it’s legal. Covert audio is legal, but you need to understand exactly when and how to legally use it—or your evidence will not be admissible in court and you could be in serious trouble. Below are common questions we hear with explanations as to what can and can’t be done with covert audio and video surveillance.

1. What is covert audio equipment?

In general, the law defines covert audio devices as anything that is intentionally designed to covertly intercept oral communication. Most of these laws do not cover the components that make up covert devices such as microphones, batteries, transmitters or recorders. Instead, most laws restrict these devices once they are constructed.

To illustrate the threshold of most laws, a common camcorder with a built-in microphone by itself is completely legal. However, when the camcorder is concealed in something that is designed for covert use, the person using the camcorder as a covert device to capture video and audio from a hidden location would be in violation of federal law and many state laws dealing with manufacturing and possession of covert and audio devices.

2. Why do the laws regulate audio and not video—it seems backwards?

To most people, video seems like the superior technology. With this reasoning, many wonder why the laws are so strict concerning covert audio and in many cases silent when it comes to covert video.

It is important to note that when most of the laws around covert devices were written video technology did not exist as it does today and audio was the dominate means of covertly obtaining information.

Additionally, audio technology has a higher propensity to do harm by covertly recording conversations. Everyone, regardless of their walk in life, has a reasonable expectation to privacy in their daily lives like when they see the doctor or parent a child.

If those private conversations fell into the wrong hands it would devastate relationships, break down trust and even in some cases, ruin a person’s life.

Business managers are another example. They need to have private conversations with other managers or employees about things like the health of the business or employment. However if these conversations were made public, business security or even careers may be at stake.

3. Are there any laws covering surveillance video?

It wasn’t until the 1990s that legislation began to appear about the legal use of video surveillance equipment. States were prompted to pass legislation after law enforcement agencies uncovered horrific stories of voyeurism but had no law in which to press charges.

These laws can be found under statutes covering criminal trespass, disorderly conduct, invasion of privacy, and revised peeping tom laws.

The spirit of the laws states that video cannot be used in areas where people have a reasonable expectation of privacy such as homes, bathrooms or locker rooms. In 2004 the federal government followed state legislation and enacted the Video Voyeurism Act of 2004 covering the use of covert video. (Voyeurism Statutes 2009 PDF)

We’re glad to see the establishment of these laws and, on rare occasion, we have assisted agencies in the prosecution of the inappropriate use of video equipment. It is worth pointing out that these cases are rare. The general trend for the use of video equipment is for good people to use video to catch bad people doing bad things. Just ask any criminal, they hate video cameras.

4. My state allows covert audio, why does the federal law matter?

Federal law, known as the USC (United States Code), supersedes state law when it comes to covert audio. Many well-intentioned individuals believe that because their particular state law does not address or even allow the use of covert audio that it is perfectly legal for them to use it.

Unfortunately that belief is faulty and criminally dangerous. It is true that federal and state laws conflict from time to time such as recent state legislation allowing medicinal use of cannabis. In all of those states, federal law enforcement agents are still enforcing USC drug laws on cannabis regardless of the state laws. The use of covert audio is no different—federal law trumps state law.

5. Both state and federal law seem to allow one-party consent for audio recording. Does this mean I can covertly record conversations?

Clauses about recording with one-party consent are mostly applied to recording telephone conversations where at least one person of the conversation is the rightful owner or controller of the telephone in use.

These clauses are also designed to restrict the highly illegal practice of wiretapping where no party has given consent to the recording or interception of the conversation. Under federal law it is illegal for a person to even possess covert audio equipment – making the question of one-party consent irrelevant.

6. What are the specific laws about covert audio?

USC Title 18 Section 2512 (18 USC § 2512) is the federal law that regulates the manufacturing, possession, sales and solicitation of covert audio surveillance equipment. State laws vary from state to state, but most are similar to USC Title 18 Section 2512. Some even further outline the legal and illegal use of covert audio equipment.

7. I am a private investigator; can I buy and use covert audio?

Unfortunately, no – private investigators provide a much needed service to our nation, but the federal law provides no special provision for private investigations. However, if a private investigator is fulfilling a government contract that requires the use of covert audio, there may be some legal allowance for the investigator to use this gear.

This potential allowance would also apply to security, military and training contractors. If this allowance is applicable, the purchase would most likely need to be done through the government agency issuing the contract.

8. Is a tiny microphone considered illegal?

No. Microphones themselves regardless of their size are completely legal and easily obtained from a variety of legitimate sources. However, as with many things that are legally benign, how they’re used can make them highly illegal.

9. I’m from another country that has no laws regarding audio, can I buy covert audio?

It’s possible that you may be able to purchase covert audio in the US and export it to another country. However, US export laws require companies exporting such devices to obtain prior authorization and licensing from federal controlling bodies.

United States export laws also dictate that the export of covert audio can only occur to certain countries, organizations and individuals. All parties involved in export of covert audio equipment are criminally liable and because of this, many companies choose not to export any surveillance equipment.

10. If I am a full time police officer; can I purchase covert audio equipment for personal use?

Federal law does not allow for the personal purchase, use or possession of covert audio equipment. Any use or purchase must be made in pursuit of official duties as a government agent.

However, individuals and non-government organizations donating to government agencies can fund, or in other words pay for, the purchase but the use and possession must be done by the government agency.

11. I provide goods and services to government agencies; can I buy covert audio for resale purposes?

Yes. However, prior to any solicitation or purchase a verified contract from a government agency must be received that specifies the need for covert audio equipment. Most providers will require the delivery of such goods to be made directly to the government agency.

12. Can I legally use audio equipment at all?

Absolutely! There are hundreds of applications of audio equipment that are completely legitimate and legal. In the realm of security, audio has played a pivotal role in solving cases, providing protection against lawsuits and more. Crooks in the commission of crimes often reveal names and discuss key element or plans to cover their tracks, should they be discovered.

When using audio for surveillance purposes there are a couple of important things to keep in mind. First, placement of audio equipment should be done in such a way that no one could reasonably consider it hidden or covert. Secondly, state laws should be studied carefully as most will have specific parameters for how audio is used in the security of a business or home.

Generally, states require the property to include conspicuous signs that make others aware that audio surveillance equipment is in use.

If you have questions about covert audio surveillance, we encourage you to seek legal counsel prior to the use of audio surveillance. They can provide you with specific information of how the law applies to your specific needs and provide you with a legal avenue for your application.