With so much great technology on the market these days, it is easier to record conversations than ever before – either over a land line, on a mobile phone or even in-person with a hidden recording device. Recorded conversations (either tape or digital) are often very helpful in a variety of scenarios. These audio recordings may assist in an investigation of employee misconduct or in business or personal lawsuits, even in potential criminal investigations.
It is very important, however, to make sure that any recording, either of a phone conversation or an in-person conversation, complies with federal and state laws. Otherwise, you may very well open yourself up to criminal charges or civil suits. And it is unlikely that you will be legally able to use the recording for your original purpose.
So, if you’re thinking about recording some phone calls or placing a voice-activated recorder in a room to record conversations, you’ll need to take a look at the applicable laws. The first place to look is at the federal wiretapping statute – also known as the Electronic Communications Privacy Act. Federal law allows phone calls (traditional, cellular and cordless) and other electronic communication to be recorded with the consent of at least one party to the conversation.
This means that if you are one of the people taking part in the conversation, it can be recorded (because one person – you – has consented to the recording). If you are not taking part in the conversation, at least one of the people in the conversation must know about and consent to the recording.
You can’t stop, however, after considering federal law and assume that your recording passes muster. Each state and territory has its own statutes regarding the recording of conversations. Most state wiretapping and eavesdropping laws are based upon the federal law and allow recording with the consent of one party to the conversation.
The 37 states which allow “one party consent” recording of oral communications 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 also allows people to record conversations with the consent of only one party. Nevada has a one party consent statute but there is some question as to how the law should be interpreted by the courts – it could be considered an “all party consent” state.
The 12 states which definitely require all parties to a conversation to consent before it can be recorded are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington. (In California, there is an exception – you can record a conversation with the consent of only one party if certain criminal activity (kidnapping, extortion, bribery or a violent felony) is involved.)
So, the basic rule is that it is illegal to record conversations or communications in which you are not a participant, unless you have consent of at least one, if not all, of the participants. The obvious exception to this general rule is that law enforcement officials can seek permission from a court to perform no-consent wiretaps as part of a criminal investigation. For the finer points of your own state’s laws and requirements, you should always consult with an attorney.