With so much great technology on the market these days, it’s easier than ever to record conversations, whether it’s over a landline, on a mobile phone, or even in person with a hidden recording device.
Recorded conversations (either on tape or digital) are often very useful in a variety of settings. These audio recordings can aid in an investigation of employee misconduct or in business or personal lawsuits, including possible criminal investigations.
However, it is very important to ensure that any recording, whether of a telephone conversation or an in-person conversation, complies with federal and state laws. Otherwise, you may very well expose yourself to criminal charges or civil lawsuits. And it is unlikely that you will be able to legally use the recording for its original purpose.
Therefore, if you are considering recording some phone calls or placing a voice-activated recorder in a room to record conversations, you will need to consult the applicable laws.
The first place to look is the federal wiretapping statute, also known as the Electronic Communications Privacy Act. Federal law allows phone calls (traditional, cellular, and wireless) and other electronic communications to be recorded with the consent of at least one party to the conversation.
This means that if you are one of the people participating in the conversation, it can be recorded because a person (you) has consented to the recording. If you do not participate in the conversation, at least one of the people in the conversation must know and consent to the recording.
However, you can’t stop after considering federal law and assuming your recording is approved. Each state and territory has its own statutes regarding recording conversations. Most state laws on wiretapping and wiretapping are based on federal law and allow recording with the consent of one of the parties to the conversation.
The 37 states that allow the consent recording of a portion 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 individuals to record conversations with the consent of a single party. Nevada has a one-party consent statute, but there are questions about how courts should interpret the law. It could be considered a state of consent of all parties.
The 12 states that definitely require consent from all parties to a conversation 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 a single party if certain criminal activity (kidnapping, extortion, bribery, or a violent crime) 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 the consent of at least one, if not all, of the participants.
The obvious exception to this general rule is that law enforcement officials may request permission from a court to conduct wiretapping without consent as part of a criminal investigation. For the details of the laws and requirements in your own state, you should always consult with an attorney.