Recording Phone Calls and Conversations

 

If you plan to record telephone calls or in-person conversations (including by recording video that captures sound), you should be aware that there are federal and state wiretapping laws that may limit your ability to do so. These laws not only expose you to the risk of criminal prosecution, but also potentially give an injured party a civil claim for money damages against you.

 

From a legal standpoint, the most important question in the recording context is whether you must get consent from one or all of the parties to a phone call or conversation before recording it. Federal law and many state wiretapping statutes permit recording if one party (including you) to the phone call or conversation consents. Other states require that all parties to the communication consent.

 

Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a "one-party consent" law. Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation. Furthermore, if you are not a party to the conversation, a "one-party consent" law will allow you to record the conversation or phone call so long as your source consents and has full knowledge that the communication will be recorded.

 

According to an article published by the Legal Research and Communications Department, of the U.S. Army Judge Advocate General’s School: "While there are various federal and state laws prohibiting the interception and covert recording of conversations by third parties, most do not apply when a party to the conversation makes the recording or consents to it. Likewise, there are no federal, Department of Defense, or Department of the Army regulations, that prohibit employees from surreptitiously recording conversations in the workplace. Unless the recording took place in one of the few states that prohibits nonconsensual recording, there is nothing to prevent a federal employee from surreptitiously recording his co-workers or supervisors absent an order or local policy."

 

In addition to federal law, thirty-eight states and the District of Columbia have adopted "one-party consent" laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents.

 

Eleven states require the consent of every party to a phone call or conversation in order to make the recording lawful. These "two-party consent" laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington.

As an example of the law in one of those eleven states, I cite Washington State law:

RCW 9.73.030
Intercepting, recording, or divulging private communication - Consent required...

(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:

(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication;

(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.

 

Regardless of whether state or federal law governs the situation, it is almost always illegal to record a phone call or private conversation to which you are not a party, do not have consent from at least one party, and could not naturally overhear. In addition, federal and many state laws do not permit you to surreptitiously place a bug or recording device on a person or telephone, in a home, office or restaurant to secretly record a conversation between two people who have not consented.

 

Reference:
Digital Media Law Project