Recording Law for Voiceprints & Biometric Data in Virginia

Virginia lets you record any conversation you’re part of without the other party’s consent under the state’s wiretap law. The rule comes from Virginia Code § 19.2-62(B)(2), which provides that it is not a criminal offense to intercept a wire, electronic, or oral communication when the person intercepting is a party to the communication or one of the parties has given prior consent. This applies whether the conversation happens in person, on the phone, or through an electronic communication system as defined by statute. The statute’s protections only attach if the conversation qualifies as an "oral communication" under Virginia Code § 19.2-61(2), which requires that the speaker exhibit an expectation that the communication is not subject to interception and that the surrounding circumstances objectively justify that expectation. For example, a conversation in a crowded public space where the speaker’s statements are plainly audible to bystanders generally does not meet this test, while a hushed exchange in a closed office may.

Virginia has a separate rule for using recorded telephone conversations as evidence in civil cases. Even if the call was legally recorded under the one-party consent rule, it may not be admissible. Virginia Code § 8.01-420.2 provides that a recorded telephone conversation is inadmissible in a civil proceeding unless (i) all parties to the conversation were aware it was being recorded, or (ii) the recording captures admissions of criminal conduct underlying the civil claim, one party knew of the recording, and the case is not a divorce, separate-maintenance, or annulment action. This admissibility rule applies only to telephone conversations and does not on its face apply to in-person oral or video recordings.

Virginia does not have a standalone biometric privacy statute like Illinois’ BIPA. Instead, voiceprints are treated as “biometric data” under the Virginia Consumer Data Protection Act (VCDPA) when processed for the purpose of uniquely identifying a natural person, and such data is included within the statute’s definition of “sensitive data.” Before processing sensitive data, including biometric voiceprints processed for identification, a controller must obtain the consumer’s consent, which the statute defines as a clear affirmative act signifying a consumer’s freely given, specific, informed, and unambiguous agreement to process personal data relating to the consumer. The VCDPA applies only to persons conducting business in Virginia or targeting Virginia residents that during a calendar year control or process personal data of at least 100,000 consumers, or control or process personal data of at least 25,000 consumers and derive over 50 percent of gross revenue from the sale of personal data. The Attorney General has exclusive authority to enforce the VCDPA and must provide a 30 days’ written notice of an alleged violation before initiating an action. If the controller or processor cures the violation within the 30-day period and provides the Attorney General an express written statement that the alleged violations have been cured and that no further violations shall occur, no action shall be initiated. After the cure period lapses or a cure agreement is breached, civil penalties may reach up to $7,500 per violation, plus investigation expenses and reasonable attorney fees, with proceeds going to the Regulatory, Consumer Advocacy, Litigation, and Enforcement Revolving Trust Fund.

Virginia’s wiretap law does not include a separate codified “public place” exception. Instead, the statute’s protections hinge on whether the speaker had a justified expectation that the conversation would not be intercepted. Virginia Code § 19.2-61(2) defines an “oral communication” as any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. Virginia Supreme Court authority confirms this two-part test: Wilks v. Commonwealth, 217 Va. 885 (1977), holds the justifiable expectation of noninterception contained in the statutory definition of the term “oral communication” is equivalent to the constitutional expectation of privacy, and Cogdill v. Commonwealth, 219 Va. 272 (1978), applies it to a closed-door office conversation. No Virginia appellate decision squarely addresses the specific public-place/stranger-bystander fact pattern, so the application of the test to ordinary public settings remains an extension from statutory text and analogous doctrine rather than a squarely-decided question. In practice, conversations in busy streets, parks, or crowded sidewalks are less likely to meet the test, while hushed or physically separated exchanges—even outdoors—may still qualify for protection.

The Fourth Circuit, the federal appeals court covering Virginia, has recognized that livestreaming a police traffic stop is protected by the First Amendment. In Sharpe v. Winterville Police Dep’t, 59 F.4th 674 (4th Cir. 2023), the court held that the First Amendment may protect the livestreaming of a police traffic stop, joining the consensus of essentially every other circuit to address a right to record police performing public duties. However, the court also held that qualified immunity shielded the officers because the right to livestream specifically was not “clearly established” at the time of that incident. While the underlying right is now recognized in the Fourth Circuit going forward, damages claims against individual officers for interfering with recording can still face qualified-immunity hurdles depending on how clearly established the specific conduct was at the time.

Imagine you’re a lawyer meeting a client at a busy downtown coffee shop. You want to record the conversation to ensure accuracy. Under Virginia’s one-party consent rule, you can lawfully record the conversation without the client’s consent if you are a party to the communication and the conversation does not qualify as an “oral communication” under Virginia Code § 19.2-61(2). A conversation in a crowded public space where the client’s statements are plainly audible to bystanders generally does not meet the “oral communication” test, so the recording is legal. If the client lowers their voice and leans in to speak privately, the situation changes. A court might later decide the client had a justified expectation of privacy in that hushed exchange, even if it occurs in a public place. The safer approach is to obtain consent before recording any conversation that feels private or quiet.

Virginia’s wiretap statute does not create a special exception or heightened rule for recording inside someone’s home. The one-party-consent standard applies regardless of location. This means you can lawfully record your own conversations with a spouse or others in the marital home without consent, as long as you are a party to the communication. However, you may not lawfully record a spouse’s conversation with a third party in the home without consent from the spouse or the third party, since the recorder is not “a party to the communication.” Separately, Virginia has a narrower statute, Va. Code § 18.2-386.1, which criminalizes non-consensual visual recording of a person’s nude or partially nude body in a place where they have a reasonable expectation of privacy, such as undressing at home.