Recording Police in Alaska: One-Party Consent, No Express Right, No Obstruction Offence

Alaska sits in the group of states with no express right-to-record provision. There is no counterpart to a standalone recording right, and no proviso written into an interference offence, because Alaska has no general interference or obstruction offence at all. What governs is AS 42.20.310, headed Eavesdropping, and it is a one-party consent rule.

Subsection (a)(1) makes it unlawful to use an eavesdropping device to hear or record all or any part of an oral conversation without the consent of a party to the conversation. The consent that matters is a party's, not every party's. If you are stopped by an Alaska trooper and record the conversation, you are yourself a party and your own consent satisfies the statute. If you walk up to a scene and record two other people talking, you are not a party, and the statute is only satisfied if one of the speakers consents.

The definition in subsection (b) matters as much as the prohibition. An eavesdropping device is any device capable of being used to hear or record oral conversation, whether conducted in person, by telephone, or by any other means. That is broad enough to include a phone, but it is anchored to oral conversation. Video with the microphone off, and a still photograph, are not reached by AS 42.20.310 at all, and no other Alaska statute prohibits photographing an officer working in public.

Subsections (a)(2) to (a)(4) reach publication, and they are limited in a way that helps a lawful recorder. They forbid using, divulging or publishing information obtained through the illegal use of an eavesdropping device. A recording you lawfully made of your own encounter was not obtained illegally, so posting it is not caught. Scanner traffic is also expressly protected: AS 42.20.320(a)(4) exempts recording or listening with the aid of any device to an emergency communication made in the normal course of operations by a federal, state or local law enforcement agency, along with hospitals, clinics, ambulance services, fire fighting agencies, a public utility emergency repair facility, civilian defense establishments and military installations.

The exemption list also shows the legislature thinking about police recording in the other direction. AS 42.20.320(a)(8) allows a peace officer to wear a concealed transmitting device monitored by other officers during the investigation of a crime or an arrest, but only for the officer's safety, only where the officer is a party and has consented, and only where the communication intercepted is not recorded. AS 42.20.320(a)(6) routes anything more intrusive through AS 12.37, the state's judicially supervised interception scheme.

What protects a bystander with a camera in Alaska is the narrowness of the offences that might otherwise be charged. AS 11.56.700, resisting or interfering with arrest, applies only where a person knows an officer is making an arrest, intends to prevent it, and acts by force, by committing any degree of criminal mischief, or by any means that creates a substantial risk of physical injury to any person. Filming from a distance is none of the three listed means. AS 11.56.720 covers only an unreasonable failure to physically assist an officer on request and is classified as a violation. Alaska enacted no crowding distance, no stand-back footage figure, and no offence of failing to stop recording.

The real limit is a dispersal order. AS 11.61.110(a)(3) makes it disorderly conduct if, in a public place, when a crime has occurred, a person refuses to comply with a lawful order of a peace officer to disperse. The trigger has two halves, a public place and a crime that has occurred, so it does not reach an ordinary traffic stop where nothing has happened. Subsection (b) also carves speech out of the noise limb, providing that noise does not include speech that is constitutionally protected, so shouting questions at officers is treated differently from making unreasonably loud noise.

A violation of AS 42.20.310 is a class A misdemeanor under AS 42.20.330, which means up to one year of imprisonment under AS 12.55.135(a) and a fine of up to $25,000 under AS 12.55.035(b)(5). That exposure runs against anyone who records an oral conversation without a party's consent, which in practice means a bystander recording others rather than a person recording their own stop. AS 42.20.325 adds a reporting duty aimed at industry rather than the public: an employee of a communications common carrier, an electronic communication service, or a private investigation agency who learns of probable eavesdropping must report it in writing to the commissioner of public safety within 30 days.

Refusing a lawful dispersal order under AS 11.61.110(a)(3) is a class B misdemeanor, and AS 11.61.110(c) sets a sentence ceiling well below the ordinary class B maximum: imprisonment for a definite term of not more than 72 hours on a first conviction and not more than 10 days on a second or subsequent conviction. The general fine ceiling for a class B misdemeanor is $2,000 under AS 12.55.035(b)(6), and a $100 surcharge applies under AS 12.55.039(a)(3) because incarceration is possible.

If an arrest is made for anything arising out of a recording, AS 12.25.150 applies: presentation before a judge or magistrate without unnecessary delay and within 24 hours absent compelling circumstances, a hearing no later than 48 hours after arrest, and an immediate right to telephone an attorney, a relative or a friend, with any Alaska attorney entitled to visit at once on request. An officer who wilfully refuses those rights commits a misdemeanor punishable by a fine of not more than $100 or 30 days, and owes $500 to the aggrieved party for refusing an attorney visit.