Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

Arkansas

Current status

Under Arkansas law, recording or intercepting any in person conversation, wire or wireless communication is illegal unless the person recording or intercepting is a party to the conversation or at least one of the parties has given consent. State law also criminalizes the use of technical equipment to secretly observe a person in a private place without the person’s consent. It remains to be discussed whether the two laws are conflicting in some cases.                             

Impact of law

Arkansas is thus a “one party consent state” regarding communication recording. Individuals can legally record their own communication without the consent or without informing the other parties engaged in the communication.

The video voyeurism law, however, tries to protect individual privacy one step further, by prohibiting the use of “image recording device” to secretly observe a person. For a recording to be illegal, the subject must be in a private area out of public view, must have a reasonable expectation of privacy and must not have consented to the observation.

It remains to be debated whether mixed recording devices, such as hidden cameras installed on a person engaged in a communication with the target person count as legal recordings for the audio content and illegal recording for video content.

Security monitoring operated by an occupant of a residence or owner or administrator of a place of business is an exception to this law.

References to Physical TSCM

The law (Ark. Code Ann. 5-60-120) holds that “it is unlawful for a person to intercept a wire, landline, oral, telephonic communication, or wireless communication, and to record or possess a recording of the communication unless the person is a party to the communication or one of the parties to the communication has given prior consent to the interception and recording”. The law does not mention any type of means or device to be used, hence does not distinct between physical and cyber means of interception, leaving to interpretation whether “wire” or “landline” point to physical devices, while “wireless” points to cyber means.

Regarding video-surveillance, the law references devices such as “camera, videotape, photo-optical, photoelectric, or any other image recording device”.

References to Cyber TSCM

Interception of communication under Arkansas law does not exclude cyber means of eavesdropping.

Criminal implications

Illegal interception and recording of private communications is a class A misdemeanor and is punishable by up to a year in jail. Voyeurism crimes are considered Class D felonies and are punishable by up to six years in jail[1].

Civil implications     

Code excerpts

Ark. Code Ann. 5-60-120. Interception and recording[2].

(a) It is unlawful for a person to intercept a wire, landline, oral, telephonic communication, or wireless communication, and to record or possess a recording of the communication unless the person is a party to the communication or one (1) of the parties to the communication has given prior consent to the interception and recording.

(b) Any violation of this section is a Class A misdemeanor.

Ark. Code Ann. 23-17-107. Interception of message-Injuring equipment-Penalty[3].

If any person without authority intercepts a dispatch or message transmitted by telephone or willfully destroys or injures any telephone pole, wire, cable, or fixture, he or she is guilty of a Class A misdemeanor.

Ark. Code Ann. 5-16-101. Crime of video voyeurism[4].

(a)It is unlawful to use any camera, videotape, photo-optical, photoelectric, or any other image recording device for the purpose of secretly observing, viewing, photographing, filming, or videotaping a person present in a residence, place of business, school, or other structure, or any room or particular location within that structure, if that person:

(1)Is in a private area out of public view;

(2)Has a reasonable expectation of privacy; and

(3)Has not consented to the observation.

 

 

[1] Source: http://law.justia.com/codes/arkansas/2010/title-5/subtitle-1/chapter-4/subchapter-4/5-4-401

[2] Source: http://law.justia.com/codes/arkansas/2010/title-5/subtitle-6/chapter-60/subchapter-1/5-60-120/

[3] Source: http://law.justia.com/codes/arkansas/2010/title-23/subtitle-1/chapter-17/subchapter-1/23-17-107

[4] Source: http://law.justia.com/codes/arkansas/2010/title-5/subtitle-2/chapter-16/5-16-101