Iowa Lets Anyone Openly Present Record a Police Encounter

Two Iowa statutes could in principle criminalize recording a conversation, and both let an open recording through. Iowa Code section 727.8(2) makes it a serious misdemeanor for a person having no right or authority to do so to tap into a communication wire or by any electronic or mechanical means listen to, record, or otherwise intercept a conversation or communication of any kind. Subsection 3(a) then removes from that offence the recording by a sender or recipient of a message or one who is openly present and participating in or listening to a communication. Iowa's exemption is therefore wider than a plain one-party-consent rule. It does not ask whether you are a party to the conversation; it asks whether you are openly present and either participating in it or listening to it. A passenger holding up a phone during a roadside stop is openly present and listening, and is outside section 727.8 for that reason.

The second statute is the wiretap chapter. Iowa Code section 808B.2(1)(a) makes willful interception of a wire, oral, or electronic communication a class D felony, but section 808B.2(2)(c) excepts a person not acting under color of law who is a party to the communication or who has one party's prior consent, so long as the interception is not for the purpose of committing a criminal or tortious act. Chapter 808B also defines its terms narrowly: under section 808B.1(8) an oral communication means one uttered by a person exhibiting an expectation that the communication is not subject to interception, under circumstances justifying that expectation. An officer speaking to a driver at the side of a public road is not in those circumstances.

What Iowa does not have is as important. There is no counterpart to California Penal Code section 148(g) or New York Civil Rights Law section 79-p declaring a right to record, and there is no minimum-distance offence: chapter 719, which holds Iowa's obstructing-justice crimes, contains no distance figure at all, so an Iowa officer cannot order you back a fixed number of feet and charge you for closing the gap.

The provision that actually bites is Iowa Code section 719.1(1)(a). A person commits interference with official acts by knowingly resisting or obstructing anyone known to be a peace officer in the performance of any act which is within the scope of that officer's lawful duty or authority. Recording is not resisting or obstructing, but standing between an officer and an arrestee, refusing a lawful order to move out of a roadway, or physically interposing yourself can be, and the charge does not depend on any recording at all.

One more Iowa provision cuts the other way and is worth knowing about before you record on someone else's land. Section 727.8A makes it an aggravated misdemeanor for a first offence, and a class D felony for a second, to commit a trespass as defined in section 716.7 while knowingly placing or using a camera or electronic surveillance device that transmits or records images or data on the trespassed property. Filming from a public sidewalk or from your own vehicle is untouched by it.

1(1)(a) of $105 to $855 with up to 30 days in jail. 7, or is armed with a firearm, it becomes a class D felony. 1(1)(b) by a fine of $430 to $2,560 and up to one year in jail. 2(2) exceptions is a class D felony. 8(1) a person whose communication is intercepted, disclosed or used in violation of chapter 808B has a civil cause of action and may recover actual damages but not less than liquidated damages of $100 a day for each day of violation or $1,000, whichever is higher, plus punitive damages for a willful, malicious or reckless violation and a reasonable attorney fee.