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 states laws and requirements, you should
always consult with an attorney.
