I get that for whistleblowers, journalists, investigators, ... I don't think it's relevant for a birthday party with children.
If it's me, I'm leaving the party. If it's my children attending, I'm strongly recommending them to leave the party (or just leave with them, depending on their age). Live-streaming a birthday party of children is obnoxious behavior that should not be tolerated.
This is the case where I find law in Europe better than USA. In germany you need consent to film or record other people.
The downside is the misuse of the law, what happens constantly, to basically prohibit (at least in practice) ANY recording activity. Is not unheard of, I have seen and experienced myself quite a few times, for example, a tourist being stopped and asked to delete a video of a simple recording in a park (police called immediately), because a random stupid person was around and wants to show how good he knows his rights… (see sister comment)
If it’s me, in Germany, I would instantly tell this person to stop filming and to delete any recordings. And if they streamed live to expect a letter from the (German equivalent of the) DA soon, as I would - as soon as back home - I would press charges and search damages.
Because in German publishing images/recordings of an individual without consent violates basic constitutional rights. And that’s nothing to f** with.
If minors were involved you’d be in a whole different can of soup even.
So while I don’t advocate for violence - as others have hinted in this thread - a black eye could actually be the lesser negative outcome for such a person.
And most states also allow you to leave a bar thirty seconds after your friend you arranged to meet there arrives, it would still be considered rude to do so and probably you wouldn’t be welcome in the future if you kept doing it.
Under US federal law one-party consent requires that you actually be a party to the conversation. This is why most security cameras do not record audio.
If you're wandering around livestreaming and picking up conversations you're not a participant in, it's a violation of federal wiretapping laws.
I watched multiple videos from Portland ICE protest, multiple videos of ICE arresting people, all with audio. Half the people at protests are recording.
If you were right all that would be illegal.
The magic word is: "reasonable expectation of privacy".
If you're in public, like in streets, in the mall etc. you don't have reasonable expectation of privacy. You can be recorded, with audio, and it's legal.
The two party consent rules only apply to private conduct e.g. you have a phone conversation. In states with two party consent the other person can't record the conversation without notifying you.
What you describe as "US federal law" sound more like anti-wiretapping law i.e. I can't plant a bug in your house and record your conversations. Which is duh, but not relevant to being recorded while in public.
I figured that "reasonable expectation of privacy" was a given in the scenario. It's a family gathering, the livestreamer is not being obvious about their recording, there's a "reasonable expectation of privacy".
Your ICE protest example is performed in public, its a protest, its not meant to be private, thus fails the test of "reasonable expectation of privacy". Action taken by agents of the state are also public actions, this has been tried many times in court.
Two-party consent is not federal law and varies state-by-state. But again it requires that you actually be a party to consent.
And yes by "US Federal Law" I am referencing the anti-wiretapping laws which prohibit, among other things, interception of oral communication via electronic means unless at least one party consents.
I'm not so sure that the family gathering scenario is well-defined, though. If I'm at a gathering in someone's house, and I'm in a room with only the person/people that I'm actively talking to, then I feel reasonably private in the sense that my words are falling only on the ears of intended recipients. But if I'm in a room with the people I'm talking to and also people I'm not talking to, then I acknowledge that ears beyond those involved in the conversation can catch wind of what I'm saying, which roughly equates to the absense of expectations of privacy.
It's important to remember that you're making this up. You're just sort of spontaneously interpreting "reasonable expectation of privacy" off the top of your head.
It's usually simpler than that: if you see them recording you, and if they aren't trespassing (i.e. breaking the law otherwise); or you are on their property or on public property that they are legally permitted to use, which carries a posted sign telling you that you may be recorded, you don't have a reasonable expectation of privacy. Otherwise you do.*
Somebody could possibly hear something has nothing to do with it. Consenting to being heard is not consenting to being recorded. But maintaining your presence in a place where people are allowed to record is. If it's your party, tell them to put it away or leave. If it's their party, you leave. If you are recording surreptitiously and you are not working with law enforcement, it's probably not going to be admissible in court and if you publish it, you're going to get sued. Depending on your state and local laws, you are likely to lose badly.
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[*] All of this depending specifically on how the term is defined in your state and local laws. For example, video has often been separated from audio for pragmatic reasons; security cameras are meant to record physical acts, not conversations. For a second example, many states have decided that sending your voice over a wire to a designated recipient as an electronic signal is already consenting for the person receiving that signal to be able to record it and use it as they please; others have not. For a rationale in the second case, imagine that you didn't have the right to reveal a letter that was sent to you.
If everyone is inside a private home, the host has not given permission to stream, and the streamer is deliberately keeping the camera/phone hidden, then no-one has waived their expectation of privacy, and the streamer is intercepting a conversation they are not a party to
> If you're in public, like in streets, in the mall etc. you don't have reasonable expectation of privacy. You can be recorded, with audio, and it's legal.
Just a note because I myself made the same argument very loudly 1-3 weeks ago...and was informed some states have different laws than I expected. Massachusetts, in particular.
(Note that MA limits clandestine recording, not the obvious recording in TFA blog about airsoft -- and it has been neither upheld nor overturned by SCOTUS)
>>> Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium. See Mass. Gen. Laws ch. 272, § 99. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not "secret"). Under Massachusetts's wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.
>>> This law applies to secret video recording when sound is captured. In a 2007 case, a political activist was convicted of violating the wiretapping statute by secretly recording video of a Boston University police sergeant during a political protest in 2006. The activist was shooting footage of the protest when police ordered him to stop and then arrested him for continuing to operate the camera while hiding it in his coat. As part of the sentencing, the court ordered the defendant to remove the footage from the Internet. From this case, it appears that you can violate the statute by secretly recording, even when you are in a public place.
Wiretapping laws are set by states, and different states have different criteria. For example, the two-party consent in MA involves 'intercepting' the conversation so even listening on a microphone and not recording it is considered wiretapping, but not all states use that criteria. Some people, like public officials performing their duty in public-- e.g. cops and politicians-- can't have any expectation of privacy.
Presumably, a person holding up a phone live-streaming would be party to the conversation.
If two people are talking at a party, and a third person obviously comes by within earshot, then the two people can either stop talking, or they can continue, but the third person is now party to the conversation.
Audio is different from video. This is technically illegal, as consent is explicitly required in the law for audio recording.