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Thread: The use of a recording device..where do we stand with the law?

  1. #1
    Regular Member self preservation's Avatar
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    The use of a recording device..where do we stand with the law?

    I have read about a lot of folks on here that carry recorders with them (I just started to carry one myself about 3 days a go) everywhere they go. I have even seen and taken advice to carry a recorder when OC'ing because sooner or later you will have an encounter with LEO. I have read that KY is a "one party consent." I was reading through some ordiances for the city of Owingsville and they had "possessing eavesdropping device, KRS 526.040, class A misdemeanor.", so I looked it up and found all the the below listed KRS's that pertain to recording devices. Some seem dry cut but some are confusing the hell out of me. I know you can't stick a recorder in a room and leave (526.030) it then comeback and retrieve it to see "what was said", but the the KRS's range from misdemeanor to felony. I need "KRS for eavesdropping for dummies" explained to me.


    526.010 Definition.
    The following definition applies in this chapter, unless the context otherwise requires:
    "Eavesdrop" means to overhear, record, amplify or transmit any part of a wire or oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 226, effective January 1, 1975.

    526.040 Possession of eavesdropping device.
    (1) A person is guilty of possession of an eavesdropping device when he possesses any electronic, mechanical or other device designed or commonly used for eavesdropping with intent to use that device to eavesdrop or knowing that another intends to use that device to eavesdrop.
    (2) Possession of an eavesdropping device is a Class A misdemeanor.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 229, effective January 1, 1975

    526.030 Installing eavesdropping device.
    (1) A person is guilty of installing an eavesdropping device when he intentionally installs or places such a device in any place with the knowledge that it is to be used for eavesdropping.
    (2) Installing an eavesdropping device is a Class D felony.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 228, effective January 1, 1975.

    526.020 Eavesdropping.
    (1) A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop, whether or not he is present at the time.
    (2) Eavesdropping is a Class D felony.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 227, effective January 1, 1975.

    526.070 Eavesdropping -- Exceptions.
    A person is not guilty under this chapter when he:
    (1) Inadvertently overhears the communication through a regularly installed telephone party line or on a telephone extension but does not divulge it; or
    (2) Is an employee of a communications common carrier who, while acting in the course of his employment, intercepts, discloses or uses a communication transmitted through the facilities of his employer for a purpose which is a necessary incident to the rendition of the service or to the protection of the rights or the property of the carrier of such communication, provided however that communications common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
    Effective: June 19, 1976
    History: Amended 1976 Ky. Acts ch. 230, sec. 1, effective June 19, 1976. -- Created 1974 Ky. Acts ch. 406, sec. 233, effective June 19, 1976.
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

    self-pres·er·va·tion (slfprzr-vshn)
    n.
    1. Protection of oneself from harm or destruction.
    2. The instinct for individual preservation; the innate desire to stay alive.

  2. #2
    Regular Member 09jisaac's Avatar
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    If two or more people are talking, you can record it as long as YOU HAVE CONSENT of at least one party member. If you are one of the party, then of course you have your own consent. Therefor it is not eavesdropping.

    Possession of an eavesdropping device requires intent to eavesdrop. If you are intending to protect yourself with the use of a recorder, that is not eavesdropping.

    If you are installing a recorder or other device for the purpose of listening to other peoples' private conversation, then you are eavesdropping. If it is a conversation you are privileged to the conversation or have any other kind of consent then you are not eavesdropping.

    Long story short, if you have access to the conversation in person then you can legally record it as you are a member of the conversation.
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  3. #3
    Regular Member self preservation's Avatar
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    Quote Originally Posted by 09jisaac View Post
    If two or more people are talking, you can record it as long as YOU HAVE CONSENT of at least one party member. If you are one of the party, then of course you have your own consent. Therefor it is not eavesdropping.

    Possession of an eavesdropping device requires intent to eavesdrop. If you are intending to protect yourself with the use of a recorder, that is not eavesdropping.

    If you are installing a recorder or other device for the purpose of listening to other peoples' private conversation, then you are eavesdropping. If it is a conversation you are privileged to the conversation or have any other kind of consent then you are not eavesdropping.

    Long story short, if you have access to the conversation in person then you can legally record it as you are a member of the conversation.
    Stupid technical question...Lets say I have it on (I always do) at work and I'm sitting all by myself and two other people walk over and start a conversation but I am not part of it. (of course they are not saying anything that they do not want me to hear) Is that legal? And what was the city of Owingsville reason for posting 526.040 in their book? Why was that important to them?
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

    self-pres·er·va·tion (slfprzr-vshn)
    n.
    1. Protection of oneself from harm or destruction.
    2. The instinct for individual preservation; the innate desire to stay alive.

  4. #4
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by self preservation View Post
    Stupid technical question...Lets say I have it on (I always do) at work and I'm sitting all by myself and two other people walk over and start a conversation but I am not part of it. (of course they are not saying anything that they do not want me to hear) Is that legal? And what was the city of Owingsville reason for posting 526.040 in their book? Why was that important to them?
    A reasonable person would become a party to the conversation by saying something along the lines of "Hi, guys" and then just listen (how intently is up to the reasonable person).

    You wanted a loophole, and one is delivered. No charge for setting it up inside, either.

    I don't even know where Owingsville is, so cannot comment on your question about them.

    stay safe.
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  5. #5
    Regular Member 09jisaac's Avatar
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    It is my opinion that if you have access to their conversation with their consent then you can record it.

    Like skidmark said though, you can always say Hi to them and leave it at that. If you weren't a member of the conversation before that point, you would be then.
    No man alive can beat me in a fair fight: It's not fair to chase a man down and beat him.

  6. #6
    Regular Member self preservation's Avatar
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    Quote Originally Posted by self preservation View Post
    I have read about a lot of folks on here that carry recorders with them (I just started to carry one myself about 3 days a go) everywhere they go. I have even seen and taken advice to carry a recorder when OC'ing because sooner or later you will have an encounter with LEO. I have read that KY is a "one party consent." I was reading through some ordiances for the city of Owingsville and they had "possessing eavesdropping device, KRS 526.040, class A misdemeanor.", so I looked it up and found all the the below listed KRS's that pertain to recording devices. Some seem dry cut but some are confusing the hell out of me. I know you can't stick a recorder in a room and leave (526.030) it then comeback and retrieve it to see "what was said", but the the KRS's range from misdemeanor to felony. I need "KRS for eavesdropping for dummies" explained to me.


    526.010 Definition.
    The following definition applies in this chapter, unless the context otherwise requires:
    "Eavesdrop" means to overhear, record, amplify or transmit any part of a wire or oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 226, effective January 1, 1975.

    526.040 Possession of eavesdropping device.
    (1) A person is guilty of possession of an eavesdropping device when he possesses any electronic, mechanical or other device designed or commonly used for eavesdropping with intent to use that device to eavesdrop or knowing that another intends to use that device to eavesdrop.
    (2) Possession of an eavesdropping device is a Class A misdemeanor.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 229, effective January 1, 1975

    526.030 Installing eavesdropping device.
    (1) A person is guilty of installing an eavesdropping device when he intentionally installs or places such a device in any place with the knowledge that it is to be used for eavesdropping.
    (2) Installing an eavesdropping device is a Class D felony.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 228, effective January 1, 1975.

    526.020 Eavesdropping.
    (1) A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop, whether or not he is present at the time.
    (2) Eavesdropping is a Class D felony.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 227, effective January 1, 1975.

    526.070 Eavesdropping -- Exceptions.
    A person is not guilty under this chapter when he:
    (1) Inadvertently overhears the communication through a regularly installed telephone party line or on a telephone extension but does not divulge it; or
    (2) Is an employee of a communications common carrier who, while acting in the course of his employment, intercepts, discloses or uses a communication transmitted through the facilities of his employer for a purpose which is a necessary incident to the rendition of the service or to the protection of the rights or the property of the carrier of such communication, provided however that communications common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
    Effective: June 19, 1976
    History: Amended 1976 Ky. Acts ch. 230, sec. 1, effective June 19, 1976. -- Created 1974 Ky. Acts ch. 406, sec. 233, effective June 19, 1976.
    The few things that have me flucked up are for one, If you read above "526.040 Possession of eavesdropping device" it states "A person is guilty of possession of an eavesdropping device when he possesses any electronic, mechanical or other device designed or commonly used for eavesdropping with intent to use that device to eavesdrop or knowing that another intends to use that device to eavesdrop." I know that you can buy recorders at all kinds of different places so I doubt that the simple act of having one on you is a crime but 526.040 kinda makes it sound that way. Another one that has me flucked up is 526.020 that states
    (1) A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop, whether or not he is present at the time.
    (2) Eavesdropping is a Class D felony.

    Sounds to me that carrying a recorder is alot like carrying a gun....a man really should know the "can" and "can not" of where you can have one, what you can do with it, who and what you can record,etc. Prime example is 526.020, I am always present on all conversations I record but when a KRS say's "whether or not he is present at the time" and they end with "Eavesdropping is a Class D felony" if makes me feel that this topic is worth the conversation.
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

    self-pres·er·va·tion (slfprzr-vshn)
    n.
    1. Protection of oneself from harm or destruction.
    2. The instinct for individual preservation; the innate desire to stay alive.

  7. #7
    Regular Member 09jisaac's Avatar
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    The key word to look at is INTENT. Do you intend to eavesdrop or do you intend to record conversations between other people and you? If you intend to eavesdrop then you are breaking the law.

    You can't "bug" your office to overhear conversations that you would not be privileged to, whether you are there or not. You can, however, STILL record a conversation you are part of.

    You have to understand, recorders aren't the only "eavesdropping device".
    No man alive can beat me in a fair fight: It's not fair to chase a man down and beat him.

  8. #8
    Regular Member self preservation's Avatar
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    Quote Originally Posted by 09jisaac View Post
    The key word to look at is INTENT. Do you intend to eavesdrop or do you intend to record conversations between other people and you? If you intend to eavesdrop then you are breaking the law.

    You can't "bug" your office to overhear conversations that you would not be privileged to, whether you are there or not. You can, however, STILL record a conversation you are part of.

    You have to understand, recorders aren't the only "eavesdropping device".
    Define "bugging" If a place of business has an audio/video security system, where would that fall? Because you are recording peoples conversation and they may not know it. Eavesdropping is defined as "the act of secretly listening to the private conversation of others without their consent." But if I have a recorder on my person who in the hell would what my "intent" is? Couldn't they just say "he had an intent to eavesdrop because he has a recording device"? Even if my true intent was to record conversations that only I was a part of. Can you give me an example of what "if a person is present or not" is in reference to?
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

    self-pres·er·va·tion (slfprzr-vshn)
    n.
    1. Protection of oneself from harm or destruction.
    2. The instinct for individual preservation; the innate desire to stay alive.

  9. #9
    Regular Member self preservation's Avatar
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    Quote Originally Posted by self preservation View Post
    I have read about a lot of folks on here that carry recorders with them (I just started to carry one myself about 3 days a go) everywhere they go. I have even seen and taken advice to carry a recorder when OC'ing because sooner or later you will have an encounter with LEO. I have read that KY is a "one party consent." I was reading through some ordiances for the city of Owingsville and they had "possessing eavesdropping device, KRS 526.040, class A misdemeanor.", so I looked it up and found all the the below listed KRS's that pertain to recording devices. Some seem dry cut but some are confusing the hell out of me. I know you can't stick a recorder in a room and leave (526.030) it then comeback and retrieve it to see "what was said", but the the KRS's range from misdemeanor to felony. I need "KRS for eavesdropping for dummies" explained to me.


    526.010 Definition.
    The following definition applies in this chapter, unless the context otherwise requires:
    "Eavesdrop" means to overhear, record, amplify or transmit any part of a wire or oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 226, effective January 1, 1975.

    526.040 Possession of eavesdropping device.
    (1) A person is guilty of possession of an eavesdropping device when he possesses any electronic, mechanical or other device designed or commonly used for eavesdropping with intent to use that device to eavesdrop or knowing that another intends to use that device to eavesdrop.
    (2) Possession of an eavesdropping device is a Class A misdemeanor.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 229, effective January 1, 1975

    526.030 Installing eavesdropping device.
    (1) A person is guilty of installing an eavesdropping device when he intentionally installs or places such a device in any place with the knowledge that it is to be used for eavesdropping.
    (2) Installing an eavesdropping device is a Class D felony.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 228, effective January 1, 1975.

    526.020 Eavesdropping.
    (1) A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop, whether or not he is present at the time.
    (2) Eavesdropping is a Class D felony.
    Effective: January 1, 1975
    History: Created 1974 Ky. Acts ch. 406, sec. 227, effective January 1, 1975.

    526.070 Eavesdropping -- Exceptions.
    A person is not guilty under this chapter when he:
    (1) Inadvertently overhears the communication through a regularly installed telephone party line or on a telephone extension but does not divulge it; or
    (2) Is an employee of a communications common carrier who, while acting in the course of his employment, intercepts, discloses or uses a communication transmitted through the facilities of his employer for a purpose which is a necessary incident to the rendition of the service or to the protection of the rights or the property of the carrier of such communication, provided however that communications common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
    Effective: June 19, 1976
    History: Amended 1976 Ky. Acts ch. 230, sec. 1, effective June 19, 1976. -- Created 1974 Ky. Acts ch. 406, sec. 233, effective June 19, 1976.
    It seems that a clear answer to these questions are not that easy to come by. I have thought and thought about it and wanted to share my view on what I THINK these laws mean. We all know that KY is a one party consent when recording your run of the mill conversations, but 526.040 "Possession of eavesdropping device" makes it sound that if you are even caught with a recorder that you will face a Class A misdemeanor.526.020 "Eavesdropping" states you are guilty of a Class D felony "whether or not he is present at the time"

    Now 526.030 "Installing eavesdropping device" is a no brainer.. We know that we can't stick a recorder under our bosses desk to "see what he says" and later retrieve it...If we did that would be a Class D felony. I THINK that 526.020 "Eavesdropping" serves to close the 526.030 "loophole" to the fellow that wants to record his boss but knows he can't "install" a recorder and be legal in doing so, so he get's the idea to hide behind a curtain, under a desk, behind a book case, etc in his bosses office so if he is caught he can claim "but I was present". And I THINK that 526.040 "Possession of eavesdropping device" would be a secondary charge if you were caught violating 526.030 or 526.020. I belive that would be the only time that you woud be charged for Possession of eavesdropping device.
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

    self-pres·er·va·tion (slfprzr-vshn)
    n.
    1. Protection of oneself from harm or destruction.
    2. The instinct for individual preservation; the innate desire to stay alive.

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