Akins v. Knight: What It Means to Record Someone Who Doesn't Know They're Being Recorded

Minnesota is a one-party consent state for audio recordings under Minn. Stat. § 626A.02. That means you can record any conversation you’re part of without telling the other person, as long as you’re present and participating. The statute prohibits intercepting wire, electronic, or oral communications unless one party to the communication consents. The operative language permits interception when “such person is a party to the communication or one of the parties to the communication has given prior consent.” In plain terms, if you’re in the conversation, your consent is enough to record it. This rule applies to phone calls, texts, and in-person conversations alike. Minnesota’s definitions section, Minn. Stat. § 626A.01, clarifies that “oral communication” is narrowly defined to include only speech uttered with an expectation the conversation won’t be intercepted under circumstances that justify that expectation. Once that threshold is met, the one-party rule still applies.

Minnesota’s wiretap law only covers conversations that meet its definition of “oral communication,” which requires the speaker to have an actual expectation the conversation won’t be intercepted and for the circumstances to justify that expectation. A loud argument on a city sidewalk, a public protest, or a traffic stop where others can hear what’s being said may not qualify as an “oral communication” under the statute. Importantly, this public-place exception only applies to in-person spoken words. Phone calls, texts, and other electronic communications are covered by the statute regardless of whether anyone expects privacy. So a phone call between two people is protected by the wiretap law even if they’re on a crowded train, while a shouted conversation on the street may not be protected at all.

Minnesota’s wiretap statute focuses on audio and electronic communications. Silent video recordings — without any audio capture — are not regulated by Minn. Stat. § 626A.02. The law’s definitions center on “wire,” “electronic,” and “oral communication,” which all involve aural or data content. A camera pointed at a public event or a street altercation, even if it captures people’s faces or actions, isn’t capturing a “communication” under the statute. That said, Minnesota has a separate law, Minn. Stat. § 609.746, that criminalizes surreptitious recording in private spaces like bathrooms, locker rooms, or through windows into dwellings. This law protects people’s privacy in those specific contexts, not general public recording. So while you can legally record video in public without consent, you can’t hide a camera in someone’s bathroom or peek through their window.

Under Minn. Stat. § 626A.02, recording police officers performing public duties in public is not illegal. The statute has no special exception for law enforcement, and the one-party rule applies the same way it does for anyone else. But the Eighth Circuit, which covers Minnesota, has sent mixed signals about whether citizens have a First Amendment right to record police in public. In Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), the court noted in dicta that every circuit to consider the question has recognized a First Amendment right to record police activity in public and treated mere observation as protected if recording is protected. Yet in Molina v. Book, No. 21-1830 (8th Cir. Feb. 2, 2023), a divided panel held that even assuming the right exists, it wasn’t “clearly established” as of 2015, so officers were shielded by qualified immunity. Another case, Akins v. Knight, No. 16-3555 (8th Cir. 2017), is sometimes cited for a broader “no right to record police” claim, but it arose in a police station lobby — a non-public forum — and is best read as a narrow, fact-specific ruling that does not reflect a general rule. The upshot: recording police in public is not itself illegal under Minnesota’s wiretap law, and federal courts increasingly protect the activity, but officers may still face no liability if they interfere with recording because the right isn’t clearly established in this circuit.

Minnesota lawyers may secretly record conversations if doing so is legal under state law. The state’s ethics board once banned secret recordings outright, but it repealed that rule in 2002, explicitly aligning with ABA Formal Opinion 01-422 and noting it followed the ABA’s change of heart. The board’s repeal comment states it doubted whether secret recording by itself continued to fall within the deceit proscription of Rule 8.4(c). The board cautioned that recording must be legal where it occurs, lying about recording can still violate ethics rules, and while it may not be unethical to record clients, “it is certainly inadvisable to do so without disclosure” except in limited circumstances like when a client threatens criminal conduct against the lawyer. So while Minnesota lawyers can record if the state’s consent law allows it, they risk discipline if they lie about it or record illegally.

Violating Minnesota’s wiretap law can lead to criminal charges and civil lawsuits. The statute sets out a mixed penalty structure: a general offense can be a felony-level crime with up to $20,000 in fines and one year in prison, while lesser violations can be gross misdemeanors or even petty offenses with smaller fines. The law also creates a private right of action, letting people sue for damages if their communications are illegally intercepted. That means if someone records you without your consent in a conversation that carries a justified expectation of privacy, you can take them to court. The statute’s civil remedy section, Minn. Stat. § 626A.13, spells out the available relief and the standards for proving a violation. Importantly, these penalties only apply when the intercepted communication is protected by the statute — so public conversations where no one expects privacy aren’t covered.

Imagine you’re at a public protest when a dispute breaks out between two groups. Voices are raised, and people are speaking loudly enough that others nearby can easily hear what’s being said. You’re participating in the conversation, so Minnesota’s one-party consent rule applies to any audio recording you make. Because this is happening in a public space with no expectation of privacy, the wiretap statute likely doesn’t cover it at all. If you record video without audio, there’s no wiretap issue. If you post the recording online, you’re not violating Minnesota’s wiretap law, though you’d still need to be mindful of defamation or other claims if you misrepresent what happened. The same would hold true if police officers are present and speaking loudly during the protest: recording them is not illegal under the wiretap statute, even if officers later claim you interfered with their duties.