Is It Legal to Record a Conversation in New York?

Statute · Penalty: felony

N.Y. Penal Law §§250.00, 250.05

In-person vs. phone & video calls

New York does NOT meaningfully split treatment by communication channel — one-party consent applies uniformly to in-person conversations, telephone/telegraphic calls, and electronic communications, because Penal Law §250.00 defines all three covered offenses in a way that is independently one-party-consent-compatible. §250.00(1) defines "wiretapping" (telephone/telegraphic) as recording "by a person other than a sender or receiver thereof, without the consent of either the sender or receiver" — a party to the call is outside the definition entirely, and even a non-party needs only one participant's consent. §250.00(2) defines "mechanical overhearing of a conversation" (in-person) as recording "without the consent of at least one party thereto, by a person not present thereat" — a participant who is physically present is completely outside this definition (an even more permissive structure than the phone provision, since mere presence removes the person from coverage rather than merely satisfying a consent element), and a bystander needs just one party's consent. §250.00(6) ("intercepting or accessing electronic communication") tracks the same pattern, requiring action "without the consent of the sender or intended receiver." Because the smartglasses wearer is ordinarily a first-person participant in whatever is captured, in-person, phone, and electronic capture are all one-party consent in practice — New York has no equivalent to Connecticut's stricter all-party-consent civil telephone statute (Conn. Gen. Stat. §52-570d) or Nevada's Lane v. Allstate all-party-by-omission rule for phone calls (NRS 200.620; Lane v. Allstate Ins. Co., 114 Nev. 1176 (1998)). One narrow, inapplicable carve-out exists outside Article 250: New York's telemarketing-disclosure rule (in effect since Aug. 21, 2017, per secondary sources) requires businesses to disclose recording on outbound consumer sales calls, functioning as an implied two-party regime for that commercial context only — irrelevant to ordinary personal/eyewitness recording. High confidence on the core statutory-text analysis; all three §250.00 definitions were independently re-fetched and confirmed against the official nysenate.gov text with exact subsection numbering during adversarial review (wiretapping=(1), mechanical overhearing=(2), electronic communication definition=(5), intercepting/accessing electronic communication=(6) — all matching the quoted language exactly).

Recording in public

Penal Law §250.00(2)'s "conversation" element does not on its face contain a public-place or reasonable-expectation-of-privacy carve-out, but New York courts have read one in. Secondary sources (the Reporters Committee for Freedom of the Press's New York recording guide and several law-firm summaries) describe two Appellate Division decisions — People v. Kirsh, 575 N.Y.S.2d 306, 307 (App. Div. 1991), and McLaughlin v. McLaughlin, 961 N.Y.S.2d 838, 840 (App. Div. 2013) — as holding that "individuals who talk in a manner such that a non-participating third party may freely overhear the conversation have no reasonable expectation of privacy in it," meaning a sufficiently open/loud public conversation can fall outside the protected "conversation" concept altogether, letting a bystander record it without any party's consent. I was unable to independently pull the full primary opinion text of either case in this pass (courtlistener/Google Scholar fetch attempts were blocked/unavailable — confirmed again during adversarial review, where independent web searches surfaced the same holding language corroborated across RCFP, vLex, and Casemine summaries but not a directly fetchable primary opinion), so this specific judicial gloss remains medium confidence — well-corroborated across multiple independent secondary sources but not independently checked against primary opinion text the way the Article 250 statutory text was. Practically this matters most for a bystander (a person not present as a party); for the wearer as a first-person participant, no consent is needed anywhere — public or private — under the plain "not present thereat" language of §250.00(2), independent of any reasonable-expectation-of-privacy gloss.

Recording at home

No provision of Penal Law §250.00/§250.05 draws a distinct rule for the wearer's own home versus a public place. Because a participant "present" at a conversation is entirely outside the "mechanical overhearing" definition (§250.00(2)) regardless of location, a wearer recording their own conversation is equally unrestricted at home or in public. Where location does matter is on the flip side of the Kirsh/McLaughlin reasonable-expectation-of-privacy gloss (see public_place_exception_notes): a private home conversation is the paradigm case of a "conversation" carrying a reasonable expectation of privacy, so a bystander (not a party present) recording a conversation inside someone else's home would be far less likely to fall outside statutory protection than an open public dispute would. Separately, the New York Court of Appeals in People v. Badalamenti, 27 N.Y.3d 423, 2016 NY Slip Op 02556 (decided Apr. 5, 2016) recognized a "vicarious consent" doctrine (adopted from the Sixth Circuit's Pollock v. Pollock, 154 F.3d 601 (1998)) letting a parent/guardian consent on a minor child's behalf to recording the child's conversations — there, a father's recorder capturing his daughter's phone conversation — where the parent has "a good faith, objectively reasonable basis to believe it was necessary for the welfare of the child." This doctrine often arises in home/family contexts (e.g., a recorder left in a child's room) but is a status-based (parent-of-minor) consent-substitute, not itself a location-based home-vs-public rule. No general heightened in-home consent requirement beyond ordinary one-party consent was found. Confidence is mixed: the "no special home rule changes the outcome for a present participant" conclusion follows directly from the statutory text (high confidence); the Kirsh/McLaughlin gloss and the precise contours of Badalamenti were confirmed only via secondary-source summaries and case-listing sites in this pass, not the full primary opinions (medium confidence) — net medium confidence for this field.

Recording the police

New York has both a specific state statute and a very recent state high-court decision narrowing it, plus an unresolved constitutional question. N.Y. Civil Rights Law §79-p ("New Yorker's Right to Monitor Act") was signed June 14, 2020 and took effect July 14, 2020 (30 days after signing, per the act's own effective-date clause), confirmed via nysenate.gov and contemporaneous press coverage. It gives "a person not under arrest or in the custody of a law enforcement official ... the right to record law enforcement activity and to maintain custody and control of that recording," creates a civil action (damages including punitive, declaratory/injunctive relief, attorney's fees) for unlawful interference, and expressly withholds protection for conduct that "physically interferes" with law enforcement activity or constitutes obstructing-governmental-administration. A parallel New York City law, N.Y.C. Admin. Code §14-189, provides similar protection with its own "official and lawful police function" carve-out. Critically, on June 23, 2026 the New York Court of Appeals decided Reyes v. City of New York, 2026 NY Slip Op 03914 (Docket No. 59, 7-0 per Judge Rivera) — answering a question certified by the Second Circuit in Reyes v. City of New York, 141 F.4th 55, 63 (2d Cir. 2025) — and held that neither §79-p nor Admin. Code §14-189 confers a right to video-record law-enforcement activity inside a police stationhouse, including its publicly accessible lobby, where the NYPD maintains a contrary no-recording policy; the plaintiff, an independent journalist, had been arrested for recording in a precinct lobby. I could not fetch the official slip opinion or the Justia mirror directly (both returned 403 to automated fetch, confirmed again during adversarial review), so the holding is drawn from a FindLaw case summary plus a contemporaneous secondary legal-news summary (nydailyrecord), which independently agree on the docket number, decision date, vote, and core holding language, but were not cross-checked against the primary opinion text word-for-word. The decision is narrow on its face — both sources confirm the Court deliberately limited its answer to stationhouse/precinct lobbies, not police performing duties on an ordinary public street, where §79-p's core protection appears unaffected. On the constitutional (as opposed to statutory) side, New York sits in the Second Circuit, which has not squarely recognized a freestanding First Amendment right to record on-duty police in public as of this research; Reyes itself resolved the case on state/city statutory grounds and did not reach that constitutional question. Practical takeaway for the glasses default: outside station houses, a wearer recording on-duty NYPD/NY police in public retains civil-remedy protection under §79-p; inside a police station house (including its publicly accessible lobby), New York's highest court has now held that recording is not protected by that statute, so a more conservative (audio/video-off, or flag-as-restricted) default is warranted specifically in that setting. Medium confidence overall: the §79-p/§14-189 statutory text and its June/July 2020 signing/effective dates are high confidence (primary source and multiple contemporaneous press sources confirmed); the pivotal, very recent Reyes holding is medium confidence pending direct primary-opinion verification.

Video-only capture (no audio)

Silent, audio-less video recording is not restricted by New York's wiretapping/eavesdropping statute for the ordinary 'record what I see' scenario, though the reasoning requires more precision than a claim that all three §250.00 offense-definitions are uniformly aural-only. §250.00(1) 'wiretapping' reaches only 'telephonic or telegraphic communication' (itself defined in §250.00(3) as an 'aural transfer' over wire/cable), so it cannot reach filming a scene. §250.00(2) 'mechanical overhearing of a conversation' reaches only a 'conversation or discussion' — an inherently verbal exchange — so a silent visual recording is not 'overheard' within that provision's meaning. §250.00(6) ('intercepting or accessing of an electronic communication') is simply not implicated in the ordinary scenario, because there is no electronic communication being intercepted when someone films a live scene with their own camera — but this provision is NOT itself aural-only: §250.00(5) defines 'electronic communication' broadly as 'any transfer of signs, signals, writing, images, sounds, data, or intelligence,' expressly including images, with no voice/aural requirement. So if smartglasses instead silently intercepted someone else's already-existing electronic video transmission (e.g., a live video call), §250.00(6) could apply even without audio — a narrow edge case distinct from a wearer's own ambient camera capture. New York does have separate, narrow video-specific criminal statutes — the 'unlawful surveillance' provisions at Penal Law §§250.40–250.65, e.g. §250.45 (Unlawful Surveillance in the Second Degree, a class E felony, confirmed via nysenate.gov) — but these reach only surreptitious recording of a person's undressing, intimate body parts, or sexual conduct, in a place carrying a reasonable expectation of privacy (bedrooms, bathrooms, hotel rooms, under clothing), done for sexual gratification, profit, degradation, or similar purposes; they do not reach ordinary silent video of a public scene, dispute, or police interaction. High confidence on the conclusion for the ordinary ambient-recording use case — the eavesdropping definitions and §250.45 were independently confirmed from official nysenate.gov text, including exact subsection numbering, during adversarial review; no case law was found (or needed) extending either provision to general silent video. Slightly lower (medium-high) confidence specifically on whether an 'electronic communication' interception theory is fully foreclosed in every conceivable silent-video edge case, since §250.00(5) expressly includes 'images' independent of any aural element — a nuance the original draft of this note incorrectly glossed over by asserting all three definitions 'import an aural/content-transfer element.'

What counts as a “private” conversation →

New York's core eavesdropping statute, Penal Law §250.00(2) ("mechanical overhearing of a conversation"), does NOT contain a statutory "private conversation"/"confidential communication" gate on its face. Independently re-verified against the official text at nysenate.gov: "the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment." (Note: the prior draft quoted this sentence but silently dropped the closing clause "by means of any instrument, device or equipment" without an ellipsis — corrected here for exact quote fidelity.) "Conversation" is undefined and carries no adjective like "private," "confidential," or "oral" in the reasonable-expectation-of-privacy sense California/Washington statutes use. Citations confirmed real and accurately formatted: People v. Kirsh, 176 A.D.2d 652, 575 N.Y.S.2d 306 (1st Dep't 1991) — confirmed via CourtListener (cluster 6076878; full case name "The People of the State of New York v. Mara Kirsh"; filed 1991-10-24; the "1st Dept 1991" attribution is independently corroborated by a later citing case, Wagman v. Kalik, which cites it as "176 AD2d 652, 653 [1st Dept 1991]"). McLaughlin v. McLaughlin, 104 A.D.3d 1315, 961 N.Y.S.2d 838 (4th Dep't 2013) — confirmed via CourtListener (clusters 6050516/6050517/4307694; docket CAF 12-01556; panel Scudder, P.J., Fahey, Sconiers, Valentino, Martoche, JJ. — all 4th Dept judges, confirming the "4th Dep't" attribution). IMPORTANT CORRECTION to the prior draft's characterization: This pass obtained actual primary-opinion snippet text for McLaughlin (via CourtListener's anonymous search-snippet index — not the rendered opinion page, which stayed empty/blocked, but a directly quotable excerpt, cross-confirmed identically across three independently-indexed copies of the same opinion, including one sourced from the official 4th Dept PDF). That text reads: "...The parties' son, who made the recording from his bedroom, was 'present' for the purposes of the statutes (see People v Kirsh, 176 AD2d 652, 652-653 [1991], lv denied 79 NY2d 949...)." This is a holding about the scope of statutory "presence" in a household-recording fact pattern (a family member recording from elsewhere within the same residence) — not the "a conversation loud/open enough to be freely overheard by a bystander loses its 'conversation' status" formulation that RCFP's guide and law-firm summaries attribute to these same two cases. I directly fetched RCFP's page this pass and confirmed it does genuinely say "individuals who talk in a manner such that a non-participating third party may freely overhear the conversation have no reasonable expectation of privacy in it," attributed to McLaughlin — so that claim is not fabricated by any researcher, it's a real (if unverified-against-primary-text) secondary paraphrase. But the one piece of McLaughlin's actual opinion text I could retrieve does different doctrinal work (an expanded "presence" concept, not a privacy-expectation/overhearability concept), and Kirsh's own snippet (independently re-confirmed 3 times) is a bare fact-recitation ("Defendant's perjury arose out of her testimony at a suppression hearing related to her husband's criminal trial for weapons possession. A witness at that trial testified to an overheard conversation in which the husband discussed with his wife blowing...") that doesn't itself show the reasonable-expectation-of-privacy language either. Separately, I confirmed (via four independent later citing cases — People v. Bedell, 84 A.D.3d 1733; People v. Rodriguez, 228 A.D.2d 391; Wagman v. Kalik, 117 A.D.3d 590; Measom v. Greenwich & Perry St. Housing Corp., 268 A.D.2d 156 — each pulling a DIFFERENT, unrelated holding from the same "176 AD2d 652, 652-653" pin cite, e.g. preservation-for-appeal and improper lay legal-conclusion testimony) that Kirsh is a compact, multi-issue memorandum decision. That structure makes it entirely plausible the REP/"freely overheard" language secondary sources describe sits at a different point within Kirsh than the "presence" point McLaughlin actually borrows from it — meaning the "freely overheard bystander" gloss is neither confirmed nor refuted by what I could pull this pass; it is a real secondary-source claim sitting alongside a different, independently-confirmed primary holding about household-recording "presence" that no existing draft of this row had captured. Net effect: the plain-text statutory conclusion (no facial privacy-qualifier) remains high confidence. The "presence" carve-out for a participant is high confidence (direct text). Whether Kirsh/McLaughlin ALSO impose a reasonable-expectation-of-privacy gloss on top of that (the "freely overheard in public" rule) remains genuinely unresolved at no better than medium confidence — same ceiling as before, but now for a sharper reason (a documented alternative holding in the same case, not just inaccessible pages) rather than resolved upward. Two analytically distinct things are potentially happening in New York, and the prior draft blurred them into one: (1) Confirmed, high confidence, straight from statutory text: Penal Law §250.00(2) exempts a participant who is physically "present" at a conversation from the "mechanical overhearing" definition entirely, regardless of the conversation's content or privacy character. A smartglasses wearer recording their own conversation is a "present" participant and needs no one's consent under this provision, full stop. For a bystander (not present, not a party), the statute independently requires only one participating party's consent — New York's ordinary one-party rule. (2) An additional wrinkle, now better-documented than before but still not fully resolved: McLaughlin v. McLaughlin (4th Dep't 2013), citing Kirsh (1st Dep't 1991), extends the "presence" concept itself — holding, per confirmed primary-opinion text, that a family member who recorded from another room within the same residence ("his bedroom") was nonetheless "present ... for the purposes of the statutes." That is a vicarious/extended-presence holding relevant to in-home recording by a household member (arguably more on-point for an own-home-exception field than a public-place-exception field), not the "loud/open public conversation freely overheard by a bystander loses its private character" rule that secondary sources (RCFP, law-firm blogs) separately attribute to these same two cases. Whether that second, privacy-expectation-based gloss is ALSO real and separately layered onto §250.00(2)'s "conversation" element remains unconfirmed from primary text and should be treated as no more than medium confidence — it may be an accurate description of a different portion of Kirsh's multi-issue opinion, or it may be an over-generalization by secondary summarizers; I could not determine which this pass. Practical takeaway for the glasses default, unaffected by the open question: the wearer, as a present participant, needs no one's consent in New York regardless of location or the conversation's privacy character (confirmed, high confidence). For a hypothetical bystander-recording feature (not the ordinary wearer use case), one participating party's consent suffices unless a recording is made from elsewhere in the same residence by a household member (extended-presence doctrine, medium confidence) or unless a separate, unconfirmed privacy-expectation gloss also applies to strip protection from freely-overheard public talk (medium confidence, unresolved).

Biometric / voiceprint law · Private right of action →

No statewide dedicated biometric privacy statute is currently in effect in New York. What exists today is a New York CITY (municipal, not statewide) ordinance — the "Biometric Identifier Information" law, NYC Admin. Code Title 22, Chapter 12 (§§22-1201–22-1205), enacted as Local Law No. 3 of 2021 (Council Int. No. 1170-A of 2018), effective July 9, 2021 (180 days after the bill became law without mayoral signature). Separately, a statewide "Biometric Identifier Privacy Act" (S.1422-A, would-be Gen. Bus. Law Art. 32-A, §§676–676-e) passed the NY Senate 41-20 on June 3, 2026 and remains pending in the Assembly (companion bill A6031) as of today, 2026-07-22 — it is NOT yet law. New York has no comprehensive consumer-privacy statute with a biometric-data provision. — Currently in effect, NYC only: A "commercial establishment" (defined narrowly in §22-1201 as a place of entertainment, retail store, or food-and-drink establishment) that "collects, retains, converts, stores or shares" a customer's "biometric identifier information" — defined verbatim to include "(ii) a fingerprint or voiceprint" — must, per §22-1202(a), post "a clear and conspicuous sign near all of the commercial establishment's customer entrances notifying customers in plain, simple language... that customers' biometric identifier information is being collected, retained, converted, stored or shared." No written consent is required — signage is the only prerequisite. Separately, §22-1202(b) makes it "unlawful to sell, lease, trade, share in exchange for anything of value or otherwise profit from the transaction of biometric identifier information," regardless of notice. Exemptions (§22-1204): government agencies/employees/agents entirely; financial institutions and non-software-analyzed photo/video, from the signage duty only. Scoping caveat, confirmed still unresolved: this law by its text targets brick-and-mortar retail/food/entertainment venues collecting biometrics FROM CUSTOMERS at physical entrances — whether it reaches a technology company like live.law capturing its own app users' voiceprints for an enrollment feature (as opposed to a store/venue scanning patrons) is a genuinely open question with no case law resolving it. Treat that extension as an unresolved, medium-confidence inference, not settled law. — Not yet law, but pending (S.1422-A, §676-a/676-b): "biometric identifier" is defined to expressly include "voiceprint" alongside faceprint, fingerprint, gait, retina/iris image, and DNA. Before any private entity may "collect, capture, purchase, receive through trade, or otherwise obtain" a biometric identifier, §676-b(2) would require: (a) written notice that a biometric identifier is being collected/stored; (b) written notice of the specific purpose and length of term; and (c) a "written release" — defined in §676-a(5)(a) as "informed written consent... A valid written release may not be secured through a general release or user agreement" (i.e., cannot be buried in a ToS). It would also require a public written retention/destruction policy — destruction "in no event later than sixty days" after the purpose is fulfilled or "within one year of the individual's last interaction with the private entity, whichever occurs first" (§676-b(1)); ban selling/profiting from biometric data (§676-b(3)); and ban conditioning a good/service on biometric collection "unless biometric identifiers are strictly necessary to provide the good or service" (§676-b(6)(a)). This is structurally near-identical to Illinois BIPA and its definitions section explicitly lists "voiceprint."

Attorney ethics (ABA Formal Op. 01-422) →

New York does not speak with one voice on this question: three separate bar-ethics bodies (NYSBA, NYCLA, and the NYC Bar/Association of the Bar of the City of New York) have each opined, and no New York court decision squarely resolves it as a matter of attorney discipline. The most-cited, most-authoritative, and most recently reaffirmed authority — NYC Bar Formal Opinion 2003-02 (2003) — expressly considered and rejected ABA Formal Opinion 01-422's broader permissive rule, calling it (per the Committee's own reasoning) an overcorrection that understated how much undisclosed taping still "smacks of trickery." Verified verbatim: the opinion holds that "[a] lawyer may tape a conversation without disclosure... if the lawyer has a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good," while undisclosed taping otherwise remains "ethically impermissible as a routine practice." It grounds this in DR 1-102(A)(4) (now NY RPC 8.4(c))'s bar on "dishonesty, deceit, fraud or misrepresentation." Recognized "societal good" contexts include investigating ongoing criminal conduct, threats against attorneys/clients, and exposing witness perjury; merely wanting an accurate record does not qualify. The opinion further treats undisclosed recording of clients or judicial officers as permissible only in circumstances that are, in its own words, "few and far between." This is a genuine middle-ground, case-by-case standard — not a blanket per-se ban (some undisclosed recording is permitted) and not ABA 01-422's broad general permission (undisclosed recording is "ethically impermissible as a routine practice" by default). NYC Bar Formal Opinion 2025-6 (2025), addressing AI-based call recording/transcription tools, explicitly reaffirms 2003-02 ("We see no reason to deviate from that conclusion") and requires that client consent be obtained before recording client calls, regardless of New York's one-party-consent wiretap law. By contrast, NYSBA's own opinions predate and diverge from this: Opinion 328 (1974) took the more restrictive historical view (recording without disclosure is "improper" absent special situations), and Opinion 515 (1979) softened this into an explicit balancing test — weighing "the contribution to social good (such as obtaining authoritative evidence of wrongdoing) against the danger to privacy of communications" — while still permitting one-party-consent recording generally. NYSBA does not appear to have issued any later opinion squarely adopting ABA 01-422's more permissive standard. NYCLA Opinion 696 (1993) is the outlier that reached something close to 01-422's later, more permissive conclusion (undisclosed recording is not inherently unethical if legal in the jurisdiction and no other misconduct occurs), eight years before the ABA itself changed course — but the NYC Bar's own Formal Opinion 1995-10 (1995) expressly rejected NYCLA 696's approach for lawyer-to-lawyer taping, meaning the "split" among New York authorities was already visible well before ABA 01-422 existed. All New York authorities that reach the merits treat New York's one-party-consent wiretap law (Penal Law 250.00 / Civil Rights Law) as a threshold floor, not a safe harbor — legality under the wiretap statute does not resolve the separate ethics question.

Can I record as a guest in someone else's home?

New York doesn't lean hard on where you're standing — recording as a guest in someone else's home is treated much like recording anywhere else in the state.

What if I'm on a call with someone in another state?

Play it safe: if either state on the call requires everyone's okay to record, treat the whole call that way — don't assume New York's rule is the only one that matters just because you're the one wearing the glasses.

If it's legal to record, can it still be used against me later?

Usually, yes. Being legal to record and being protected from a future court case are two different questions — a legal recording can generally still be obtained by the other side later. That's especially true the moment a third person is present or on the line — even one extra listener can be enough to strip away legal protection here. Recording your own conversation with your own attorney is a separate, more protected situation, but almost everything else — a landlord, a police officer, a family member — isn't automatically off-limits to opposing counsel just because it was legal to capture.