Could a South Carolina government building record audio in areas open to the public?

Plain-English summary

The Attorney General concluded that audio could be recorded in areas of government buildings where the public had unrestricted access. Drawing on an earlier opinion and cases about privacy in public places, it reasoned that people had no reasonable expectation of privacy in those areas. It suggested signs telling visitors that recording was taking place.

The opinion addressed unrestricted public areas. It did not analyze offices, restricted rooms, or communications for which a person might have a justified expectation of privacy.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the opinion permit audio recording anywhere in a government building? A: No. Its conclusion concerned areas where the public had unrestricted access.

Q: Did the Attorney General require warning signs? A: The opinion suggested signs to put the public on notice. It described them as a suggestion, not a legal condition for recording.

Q: Why did the opinion consider recording permissible in those areas? A: It concluded that people in unrestricted public areas had no expectation of privacy, relying on its earlier discussion of federal wiretap law and decisions about public places.

Background and statutory framework

The Blacksburg police chief asked whether government facilities could record audio in publicly accessible areas. The opinion quoted a 1997 Attorney General opinion discussing the federal wiretap law's treatment of oral communications and the expectation of privacy.

Citations and references

The original text below quotes the earlier opinion's references to 18 U.S.C. § 2510(1) and U.S. v. Mankani, 738 F.2d 538, 544 (2d Cir.1984).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-28-2010-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/ham-j-p-os-9075-6-28-10-government-facilities-record-audio-public-access.pdf

Original opinion text

HENRY MCMASTER
ATTORNEY GENERAL

June 28, 2010

Jamie P. Ham, Chief of Police
Blacksburg Police Department
Post Office Box 517
Blacksburg, South Carolina 29702
Dear Chief Ham:
In a letter to this office you questioned whether there can be recording of audio in government facilities or buildings in areas where the public has unrestricted access. A prior opinion of this office dated June 10, 1997 stated that
[t]he federal wiretap law prohibits a person from intentionally intercepting, endeavoring to intercept or procuring any other person to intercept or endeavor to intercept "any wire, oral or electronic communication." 18 U.S.C. § 251 l(l)(a). The Act defines "wire communication" as "any aural transfer made ... through the use of facilities for the transmission of communication by the aid of wire, cable, or other like connection between the point of origin and the point ofreception ... ." 18 U.S.C.
§ 2510(1). The term "oral communication" is defined by the Act as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation .... " (emphasis added). That opinion finther stated that
[i]t is well recognized that "there is an accepted loss of privacy when one occupies a public place." U.S. v. Mankani, 738 F.2d 538, 544 (2d Cir.1984). Courts have consistently concluded that in common areas...there is no reasonable expectation of privacy. See, State v. Boynton, 688 A.2d 145, 147 (N.J. 1997); People v. Lillis, 448 N.W.2d 818 (Mich.1989); State v. Holt, 630 P.2d 854 (Or. 1981). Consistent with such, in the opinion of this office, there would be no prohibition to the recording of audio in government facilities or buildings in areas where the public has unrestricted

REM.BERT

c. D ENNIS BUILDING • POST OFFICE Box 11549 • COLUMBIA, SC 29211-1549 • TBLEPHONE 803-734-3970 • FACSfMtLE 803-253-6283

Chief Ham
Page2
June 28, 2010

access. In the opinion of this office, there is no expectation of privacy in such areas and, therefore, the recording of audio in such areas would be authorized. I would only suggest that signs be posted advising the public of such recording to put them on notice that recording is taking place. With kind regards, I am, Very truly yours, Henry McMaster

Ck1eendU~By:

REVIEWED AND APPROVED BY:

;~,C~iRObertD:COOk
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General