There are several different styles and sizes of recorders available You can buy a dedicated analog or cell phone recorder, or you can choose one of several models of digital audio recorders that fit nicely in your hand or pocket.
Regardless of which type of audio recorder you decide on, you should be aware of the legalities that accompany such recording. It is very important to make sure that any recording, either of a phone conversation or an in-person conversation, complies with federal and state laws. You certainly don’t want to face criminal charges or civil law suits for any audio recording. Depending on the circumstances and your jurisdiction, there may be a difference under the law between in-person recordings and telephone recordings.
The first consideration you will need to make is whether the conversation is considered private. Almost all telephone conversations are presumed to be private conversations between the parties to the call. In-person conversations, however, are not necessarily private. In general, in-person communications which can be naturally overheard – that is, overheard without use of any special device – are not considered private conversations.
For example, two people have a loud conversation in front of you at the grocery store have no expectation that their communications are private. If a conversation is not private, it can generally be recorded without legal repercussion.
If the conversation is considered private, such as a phone call or a quiet discussion between two people in an office or bedroom, then federal and/or state wiretapping or eavesdropping laws will apply.
You will want to make sure that you comply with the federal wiretapping statute – also known as the Electronic Communications Privacy Act. Under federal law, a telephone conversation can be recorded with the consent of at least one party to the conversation. If you are one of the people taking part in the telephone conversation, your consent is all it takes to comply. If you are not part of the conversation, be sure to get the consent of someone who is.
In addition to federal laws, each U.S. state and territory has its own statutes regarding the recording of conversations – either on the telephone or in-person. Most state wiretapping and eavesdropping laws are based upon the federal law and allow recording with the consent of one party to the conversation.
Currently, 37 states allow “one party consent” recording of telephone and in-person oral communications. These are: Alaska, Arkansas, Colorado, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin and Wyoming.
The District of Columbia follows federal law and allows people to record conversations with the consent of only one party. Nevada has what appears to be a one party consent statute but state courts generally interpret it as an “all party consent” statute.
Speaking of “all party consent”, 12 states require all parties to a telephone conversation to consent before it can be recorded. These are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington. (In California and Connecticut, there are exceptions to the “all party consent” requirement. There, you can record a conversation with the consent of only one party if threats or certain criminal activity is involved.)
In most states, the laws handle the recording of an in-person conversation with a reasonable expectation of privacy the same as the recording of a telephone conversation. There are a few exceptions. In Connecticut, you’ll need all parties to consent to the recording of a telephone conversation in order to avoid being sued for damages.
There is no mention of the recording of in-person conversations in the statute which gives that right to sue. There is, however, a Connecticut statute which makes the recording of a telephone conversation or an in-person conversation a felony unless you have the consent of at least one party to the conversation. So, one statute has civil implications, the other has criminal consequences.
In Hawaii, two rather confusing statutes allow for one party consent to record telephone conversations or in-person conversations – unless you want to install a “bug” in a private place to record an in-person conversation, in which case, you’ll need the consent of all parties to the conversation. Indiana has no statute which mentions in-person conversations at all.
So, when considering whether or not to record an in-person or telephone conversation, you should follow a two-step analysis. First, determine whether the conversation is considered private under the law – can you naturally overhear it or is it in a place in which there is a reasonable expectation of privacy? If not (or if it is a telephone conversation), then, the basic rule is that it is illegal to record unless you have consent of at least one, if not all, of the participants. To ultimately determine which laws apply to your specific situation, you should always consult with an attorney.
