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Audio Recording Laws

Updated March 24, 2016 by Justin S. Kline, Esq.

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. Electronically-recorded conversations may prove helpful in a variety of situations. These include investigations of employee misconduct, in business, child-custody disputes, in civil lawsuits and even 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 or camera in a room to record conversations, you’ll need to take a look at the applicable laws.

Audio Surveillance Consent Requirements

Conversations recorded in violation of applicable federal and state law are generally not admissible as evidence in a lawsuit or other judicial proceeding. For example, California Penal Code section 632 provides that “. . . no evidence obtained as a result of . . . violation of this section shall be admissible in any judicial . . . or other proceeding”. In addition, surreptitious recording of conversations in violation of applicable law can leave you open to civil lawsuits for tortious invasion of privacy and even criminal prosecution.

The primary federal law governing audio surveillance by private parties is the Electronic Communications Privacy Act, 18 USC 2510, et seq. (“ECPA”). Unlike other federal statutes which deal with state actors, such as the Foreign Intelligence Surveillance Act (as amended by the USA PATRIOT Act), the ECPA protects individual privacy from the intrusions of other private individuals.

Title I of the ECPA prohibits the intentional interception of any wire, oral or electronic communication. Oral communication is defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”

The principal exception to the federal law prohibition allows a private person to intercept an oral communication if the person is a party to that conversation or if one of the parties to the conversation has given consent. This exception is known as the “one party consent” rule.

The federal one-party consent rule, however, does not allow the person to violate state law. The federal law sets only minimum standards. Therefore, if a state law provides greater protections, then compliance with state law will be required in order to avoid liability. A majority of the states and territories have adopted laws based on the federal standard.

The states and territories requiring the consent of at least one party to a telephone conversation before an audio recording may legally be made are: Alabama; Alaska; Arizona; Arkansas; Colorado; Delaware; the District of Columbia; Georgia; Hawaii (allows one-party consent for audio recordings, but requires two-party consent if the recording device is located in a "private place"); Idaho; Illinois (allows one-party consent for electronic communications); Indiana; Iowa; Kansas; Kentucky; Louisiana; Maine; Minnesota; Mississippi; Missouri; Nebraska; New Jersey; New Mexico; New York; North Carolina; North Dakota; Ohio; Oklahoma; Rhode Island; South Carolina; South Dakota; Tennessee; Texas; Utah; Virginia; West Virginia; Wisconsin; and Wyoming.

But 14 states require the consent of all parties to the conversation under most circumstances. You will sometimes hear these states referred to inaccurately as “two party consent” states. If there are more than two people involved in the conversation, all must consent to the recording.

These states are: California; Connecticut; Florida; Illinois (for in-person conversations); Maryland; Massachusetts; Michigan; Montana; Nevada (the Nevada supreme Court held that its statute requires two-party consent Lane v. Allstate ins. Co., 969 P.2d 938 (Nev. 1998)); New Hampshire; Oregon (for in person communications); Pennsylvania; Vermont (which has no statute, but the state Supreme Court has ruled that the surreptitious recording of a Defendant in a conversation with police inside his residence violated his reasonable expectation of privacy); and Washington.

Note that because the provisions of state consent statutes dealing with wireless communications often apply to “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature,” the requisite party consent is often likewise required to disclose the contents of text messages sent between wireless devices.

Further, it is not always clear which law, state or federal, applies to specific situations. This depends on where the call originates, why the recording is being made and who places the call. For example, the California Supreme Court held in Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914 (2006) that out-of-state businesses are prohibited from monitoring or recording their telephone calls with California residents, even if that conduct takes place in any of the states where only one party's consent is required to lawfully monitor or record a telephone call. Thus, California 's all-party consent law governs any calls between a company's location in a one-party consent state and customers located in California.

So, if you are in a state that allows one-party-consent recording and you call a party in a state that requires two-party consent and record the conversation surreptitiously (legal under federal law), then the state with tougher laws prohibiting unauthorized recording may choose to apply its laws regardless of the location of the caller or the existence of the federal statute. It is important to know your state law and the law in the state into which you call before you record surreptitiously.

Notwithstanding the foregoing, employers generally may monitor and even record their employees phone conversations with few restrictions. For example, employers may monitor calls with clients or customers for reasons of quality control. However, when the parties to the call are all in California, state law requires that they be informed that the conversation is recorded or monitored by either putting a beep tone on the line or playing a recorded message. (California Public Utilities Commission General Order 107B). Federal law, which regulates phone calls with persons outside the state, does allow unannounced monitoring for business-related calls. See Electronic Communications Privacy Act, 18 USC 2510, et seq.

Important Notice
This article is meant as a general introduction to the state of the law concerning electronic surveillance and its implications. This article is for general informational purposes only and does not constitute legal advice. You are strongly advised to seek legal advice from a lawyer in your state when you are confronted with a legal issue in this area..

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