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audio interception questions
May 30, 2019
audio interception questions
            I have a question for you…
            In a state where two party consent is required, can both parties give consent AFTER the recording to alleviate any potential future legal issues?
 For example:
  Question:  If someone was video recording a public event (on and off) on their cell phone.  They thought they stopped recording but unknowingly in their pocket recorded a video (or at least the audio) of a verbal attack against them. The altercation was between two people, in a public setting, in front of multiple witnesses.
  *  Is consent required from everyone who was present?
  *  Is consent required from only the people who spoke?
  *  Is the need for consent “waived” in this situation because it was in a public setting and the altercation happened in front of multiple people? 
            If both parties agree the audio from the video can be played/shared/give consent AFTER the recording does that alleviate any possible legal issues about not having consent PRIOR to the unintentional recording? (doubt in this case the “attacker” would give consent, but if they did…)
 Thanks in advance
            Thanks for the brain teaser, and before you keep reading, go back up to the question and jot down your answers; let's see if we agree.
            The statutes prohibiting audio recording typically include mechanical interception of audio through wire or mechanical recording device.  I think most statutes would be interpreted to apply to audio communication intended to be private.  Someone shouting out at a game in a stadium can hardly expect privacy, and recording that person's shouting is not likely to be protected by an anti recording statute.  Of course if you combine the recording with some other nefarious scenario, such as blackmail, the recording might be deemed illegal and improper.  But let's not stretch the question beyond reason.  
            Certainly consent from everyone present is not required; only the participants to the conversation are necessary parties to consent.
            In your scenario, consent from the parties to the conversation is not likely required.  Your scenario includes one person, the one presumably talking, making a verbal attach on another.  It's not clear that the person on the receiving end even contributed to the conversation, or as you put it, verbal attack.  I doubt that a verbal attack in this public setting is entitled to any privacy, and I doubt that the recording of the verbal abuse would be able to seek prosecution for the other party recording the audio.  I also think the audio would be deemed admissible in a civil suit, but that's just an educated guess.  
            Consent to an audio recording can be given after the fact, though keep in mind that violation of the audio statutes is usually criminal.  It's not a good idea to rob a bank hoping that it won't press charges.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301