Are Spy Pens Legal in the United States?

After purchasing or receiving a spy pen, it’s tempting to use it frequently, whether in classes at university to look over a lecture later, on the train ride home to record a passenger with a funny tick, or even in your home to record your neighbor’s dog running over your lawn.

In the United States, the legalities of spy pens are complex, but, if obeyed, can lead to perfectly legal and safe usage. The U.S. Department of Justice law regarding spy materials (including pens) states that it is not legal to use a spy device to record audio for secretive purposes if the recording device is disguised to look like another object. However, this law does not cover visual imagery, and therefore, it is legal to use a spy pen within the United States.

For personal surveillance and security, it is perfectly legal to use a spy pen within the confines of one’s home, a public area such as a park, parking garages, whether they are public or private, on one’s personal street or domain. Spy pens are classified much like closed-circuit cameras, employed by many small businesses and larger corporations to track behavior of employees and patrons. As such, spy pens are able to be used to record video in establishments such as these.

Due to the differences between audio and visual recordings, it can be assumed that using a spy pen without audio capabilities is legal in any situation, whether in a private or public area. However, some areas, where there is implied privacy, like changing rooms, bathrooms or hotel rooms, are off limits for spyware, and neither video nor audio recordings can be taken.

It is illegal in the US to record materials with “malicious intent” whether this is to blackmail, or harm a person through the usage of visual and audio content.

In terms of audio recording, it is illegal to record a phone conversation that one could not hear in public. Furthermore, it is not legal to make an audio recording of any conversation in which one participant does not give consent. Therefore, you cannot place a spy pen by a telephone to hear the resulting conversation, unless you are a participant, or one of the participants have given their explicit consent. In some states, it is not enough to have the consent of one party, you must have the consent of both parties to record the conversation. Therefore, to record conversations of any kind, you must receive consent. An easy way to achieve this is to ask a professor to record a lecture, or ensure that you are not encroaching on any private conversation, simply by asking a participant.

As a rule of thumb, you are almost always allowed to make a video recording using a spy pen in a public place, but for audio, you almost always need consent.