Rhode Island Has No Right-to-Record Statute, Only One-Party Consent and a Right to View the Cruiser Video

Start with the offense, because Rhode Island's wiretap prohibition is severe. Section 11-35-21(a) makes it punishable by imprisonment for not more than five (5) years to willfully intercept, attempt to intercept, or procure another to intercept any wire, electronic, or oral communication, and it applies the same five-year exposure to willfully disclosing or using the contents of an unlawfully intercepted communication. There is no fine alternative in the subsection and no lesser grade for a first offense.

The exception that matters to a person holding a phone is § 11-35-21(c)(3). It is not unlawful for a person not acting under color of law to intercept a wire, electronic, or oral communication where that person is a party to the communication, or where one of the parties has given prior consent, unless the interception is made for the purpose of committing a criminal or tortious act in violation of the constitution or laws of the United States or of any state, or for the purpose of committing any other injurious act. Rhode Island is therefore a one-party-consent state, and a person recording their own conversation with an officer is a party to it. Subsection (c)(2) gives officers the mirror-image permission when they are acting under color of law.

The harder question is the bystander who records an officer speaking to somebody else, because that person is a party to nothing. The answer turns on what counts as an oral communication. Section 11-35-21 opens by deferring to chapter 5.1 of title 12, and the definition in § 12-5.1-1(10) is that oral communications means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. Speech that carries no justified expectation of privacy is outside the definition, and therefore outside the offense, which is the analytical route Rhode Island leaves open rather than an express permission written into the code. Purely visual recording sits outside the chapter for a different reason: the offense reaches wire, electronic and oral communications, not images.

Rhode Island also criminalises the hardware, and the wording of that offense is worth reading before assuming a phone is caught. Section 11-35-24(a) punishes possessing, selling, distributing, manufacturing, assembling or advertising an intercepting device by up to five (5) years and a fine of up to ten thousand dollars ($10,000), but only where the design of the device renders it primarily useful for the purpose of the surreptitious interception of a wire or oral communication. A general purpose camera or phone is not designed for that primary purpose.

The practical risk to someone filming at a Rhode Island scene is the obstruction statute, not the wiretap statute. Section 11-32-1 punishes every person who obstructs any officer, civil, military or otherwise, including any state, city or town police officer, deputy sheriff or firefighter, while in the execution of his or her office or duty, by imprisonment not exceeding one year or a fine not exceeding five hundred dollars ($500). Rhode Island did not write into that section the recording proviso that some states added, and it has no separate buffer-distance offense telling bystanders how many feet away to stand.

The affirmative right Rhode Island did enact runs the other way, toward the police recording themselves. Section 31-21.2-5(g), added by the Comprehensive Community-Police Relationship Act of 2015, requires any agency using video or audio surveillance cameras in its vehicles to adopt written policies that are themselves public records. Those policies must require that all motor vehicle stops conducted by an equipped vehicle be recorded, that the recording begin no later than when an officer first signals the vehicle to stop, and that it continue until the stopped vehicle departs or the officer's participation ends, barring a sensitive investigation, a safety risk to an occupant or cooperating witness, or equipment malfunction. Subparagraph (g)(4) then gives a recorded driver, and his or her legal counsel, the right to view the in-car recording at the police station provided the viewing does not compromise an active investigation, and gives the same right to a passenger who became the subject of the recorded interaction. Under (g)(5) the policy must bar destruction of any recording that is the subject of a pending complaint, misconduct investigation, or civil or criminal proceeding, and must retain it for at least ten (10) days after final resolution including any appeal. Under (g)(7) the recordings themselves are not public records under the access to public records act, so viewing at the station is the route, not a records request. An agency acquiring the equipment must notify the Office of Highway Safety at the Rhode Island Department of Transportation, which posts notice on its website, issue a press release, and post notice on its own site.

A person convicted of unlawful interception under § 11-35-21(a) faces imprisonment for not more than five (5) years, and the same exposure attaches separately to willfully disclosing or using the contents of a communication known to have been unlawfully intercepted. Section 11-35-21(b) removes the disclosure and use offenses where the contents have become common knowledge or public information.

The victim of an unlawful interception also has a statutory civil claim. Section 12-5.1-13(a) gives a person whose communication was intercepted, disclosed or used in violation of the chapter a cause of action for actual damages, but not less than liquidated damages computed at one hundred dollars ($100) per day of violation or one thousand dollars ($1,000), whichever is higher, plus punitive damages and reasonable attorneys' fees and litigation disbursements. Good faith reliance on a court order issued under the chapter is a complete defense under (b).

Someone arrested at a scene is far more likely to face § 11-32-1 obstruction, punishable by imprisonment not exceeding one year or a fine not exceeding five hundred dollars ($500), or § 11-32-2 if a false report of a crime is involved, which adds mandatory restitution to the person falsely accused. On the police side, a knowing and willful violation of the in-car camera standards in § 31-21.2-5(g) allows a court to impose any appropriate remedy in a civil or criminal proceeding, and § 31-21.2-4 permits a civil action for damages and equitable relief in Superior Court with attorneys' fees to a prevailing plaintiff.