The use of hidden cameras is only covered by the wiretap and eavesdropping laws if the camera also records an audio track. However, a handful of states have adopted laws specifically banning the use of video and still cameras where the subject has an expectation of privacy, although some of the laws are much more specific. Maryland's law, for example, bans the use of hidden cameras in bathrooms and dressing rooms. Whether using an audiotape recorder or a hidden camera, journalists need to know about the limits to their use. Federal law only requires one-party consent to the recording and disclosure of a telephone conversation, but explicitly does not protect the taping if it is done for a criminal or tortious purpose.
Many states have similar exceptions.
But even if ABC's means of taping were illegal because the act violated the employees' privacy, that does not make the taping illegal under the wiretap act, the court held. The court further held that the network did not send the testers to the doctor for the purpose of defaming the doctor, and that therefore ABC did not engage in the taping for a criminal or tortious purpose. A party whose conversation is surreptitiously recorded, whether with a tape recorder or a hidden camera, may also raise such newsgathering claims as trespass and intrusion, examining the issue of the scope of a party's consent. For example, in Desnick , the doctor sued the network for trespass because he did not know of the taping. Food Lion had not consented to their presence for the purpose of recording footage that would be televised, the court held, and therefore the reporters' presence in the nonpublic areas constituted trespass.