Idaho Is One-Party Consent, So You Can Record Your Own Police Stop

Idaho's electronic surveillance chapter is title 18, chapter 67, added by 1980 Session Laws ch. 326 and substantially rewritten in 2002. Section 18-6702(1) makes willfully intercepting any wire, electronic or oral communication a felony punishable by up to five years in the state prison, a fine of up to $5,000, or both, and extends the same exposure to willfully disclosing or using the contents of an unlawfully intercepted communication. Read alone, that is severe. The exceptions in subsection (2) are what govern an ordinary citizen with a phone.

Section 18-6702(2)(d) is the operative one: it is lawful under the chapter for a person to intercept a wire, electronic or oral communication when one of the parties to the communication has given prior consent. Idaho is therefore a one-party consent state, and a person recording a conversation to which they are a party supplies that consent themselves. Subsection (2)(c) grants the mirror-image permission to a law enforcement officer or a person acting at an officer's direction, which is why an Idaho officer may record you without asking. Subsection (2)(e) draws the one line that matters: it is unlawful to intercept any communication for the purpose of committing any criminal act.

The definition does more work than the exception. Section 18-6701(2) defines an oral communication as one uttered by a person exhibiting an expectation that the communication is not subject to interception, under circumstances justifying that expectation, and expressly excludes electronic communications. Words spoken by an officer to a driver at the roadside, or to a crowd on a sidewalk, are not uttered under circumstances justifying an expectation of non-interception, so the chapter does not reach them at all. Section 18-6701(3) defines intercept as the aural or other acquisition of the contents of a communication through an electronic, mechanical or other device, which is about capturing communications, not about pointing a silent camera at a scene.

Scanner traffic is expressly carved out. Section 18-6702(2)(h)(ii)(B) makes it lawful to intercept any radio communication transmitted by any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire, that is readily accessible to the public, and subparagraph (i) does the same for an electronic communication made through a system configured to be readily accessible to the general public.

What Idaho does not have matters as much. A search of the Idaho Code returns no provision setting a minimum distance from a peace officer, no offence of approaching an officer after a warning, and no statute conditioning a right to record on standing in a public area or on not delaying the officer. The residual risk is the generic obstruction offence, § 18-705, which punishes a person who wilfully resists, delays or obstructs a public officer in the discharge or attempt to discharge any duty of his office, or who knowingly gives a false report to a peace officer, when no other punishment is prescribed. Nothing in § 18-705 mentions recording, so the question in an Idaho case is whether the conduct actually delayed or obstructed the officer, not whether a camera was running.

The chapter also protects you from being recorded unlawfully. Section 18-6709 gives any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of the chapter a civil cause of action, with actual damages but not less than liquidated damages at $100 a day for each day of violation or $1,000, whichever is higher, plus punitive damages and reasonable attorney fees and litigation costs. Good faith reliance on a court order is a complete defence. Section 18-6705 bars the contents of an unlawfully intercepted communication, and evidence derived from it, from being received in any Idaho trial, hearing or proceeding before any court, grand jury, department, officer, agency, regulatory body or legislative committee where disclosure would violate the chapter.

A willful interception in violation of § 18-6702(1) is a felony in Idaho, carrying imprisonment in the state prison for up to five years, a fine of up to $5,000, or both. Section 18-6703 separately reaches manufacturing, distributing, possessing and advertising interception devices, and § 18-6704 authorises confiscation of an interception device. On the civil side, § 18-6709 lets the person whose communication was intercepted recover actual damages or liquidated damages of $100 per day of violation or $1,000, whichever is higher, plus punitive damages and attorney fees.

Because Idaho is a one-party consent state under § 18-6702(2)(d), none of that reaches a person recording their own conversation with an officer. The practical charge to watch is § 18-705, resisting and obstructing, punishable by a fine not exceeding $1,000 and imprisonment in the county jail not exceeding one year, and only where no other punishment is prescribed. Idaho also polices the officer's side: § 18-703 makes it a misdemeanor for a public officer to arrest or detain a person against his will under pretense or color of legal authority without lawful authority, and Idaho Code § 5-220 allows one year to sue for wrongful seizure by an officer.