Rhode Island Popeyes Restaurant Records Customer Conversation Without Consent

Hidden Microphone from front of counter point of view

Hidden camera from camera's over-the-counter point of view

(Rhode Island) September 30, 2012 - A customer of Popeye's Restaurant on Smith Street in Rhode Island ordered food and noticed a microphone attached to the counter and pointing directly at him. The customer told the lady at the counter: "I don't wish to be recorded. I see you have a microphone here on the counter". The person waiting on the customer told him the store owner records all conversations "to make sure we are doing the right thing and taking orders properly". The customer repeated that he did not want to be recorded and reminded the server of the Rhode Island Call Recording Law.

Two days later, the customer walked into the same restaurant, and the microphone was still there. The woman at the counter, noticing the customer, asked if he wished to be recorded, to which he responded "no". The microphone was placed lower, and a napkin placed over it to muffle the conversation.

The State of Rhode Island's Call Recording Law states that any party may record a conversation without consent of the other party SO LONG AS that party is a PART of that conversation. In this case, the person recording the conversation is NOT a party to the conversation. According to the server at Popeye's, the owner was "probably at home recording everything on his computer or phone." The customer says he will bring the issue to the State's Attorney General's office for further review, and believes his privacy has been violated.

Here is the Rhide Island Call Recording Law in full:

From the Rhode Island State Code

R.I. Gen. Laws § 11-35-21: State law expressly allows the recording and disclosure of the contents of any wire, oral or electronic communication by a party to the communication or with the prior consent of one of the parties, so long as no criminal or tortious purpose exists.

Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of "oral communication," R.I. Gen. Laws § 12-5.1-1.

Illegal recording, or disclosing with reason to know of the illegal recording, carries a criminal penalty of not more than five years in prison, but no penalty can be imposed if the contents of the intercepted communication have become "common knowledge or public information." Civil liability is authorized for actual damages, $100 for each day of violation or $1,000 — whichever is greater. Punitive damages, attorney fees and litigation costs also are authorized. R.I. Gen. Laws § 12-5.1-13.

The state’s highest court has expressly recognized that the law allows the recording of conversations with the consent of one party only. Pulawski v. Blais, 506 A.2d 76 (R.I. 1986). The Supreme Court of Rhode Island has stated that Rhode Island’s wiretapping laws should be interpreted more strictly than the federal wiretapping statute "in the interest of giving the full measure of protection to an individual’s privacy." State v. O’Brien, 774 A.2d 89 (R.I. 2001).

Important Notice
It is always best to talk with an attorney if you have questions about the legal implications of recording calls in your state. We hope this information will serve as a general guide, and is not intended to substitute for expert legal counsel.