Recording in-person conversations can be a complicated affair. Federal and state eavesdropping and consent laws govern the practice, whose legality depends on how many people must consent--and whether they can reasonably expect to maintain their privacy when the recording is being made. Failure to understand these complexities can leave the person using the recording device liable to civil lawsuits and potential criminal charges.
Complying with all applicable federal and state laws is important before recording any conversation. Federal wiretapping law--such as the Electronic Communications Privacy Act--requires only one party's consent to record in-person conversations. If the person recording is not a party to the conversation, recording may proceed, as long as the participants consent and are aware of the recording.
Thirty-seven states and the District of Columbia follow the federal approach in requiring only one party's consent to record in-person or telephone conversations. This differs from the approach of California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. In those states, all parties must consent before any recording can go ahead.
Would-be recordists must also keep track of notable variations in state law. For example, Indiana law is silent on the issue. California and Connecticut also allow one person to record criminal or threatening conversations--which is the major exemption to their "all party consent" laws. Hawaii only requires one person's consent, except to install recording devices in private places. In that case, all parties must consent.
Expectation Of Privacy
Another legal issue to consider is called the "expectation of privacy"--whether the people talking have a reasonable expectation that their conversation is private. Courts use this test to decide if a conversation was recorded legally. In-person conversations are not considered private if someone can overhear them without a recording device. Under this reasoning, recording a loud discussion at a restaurant carries few repercussions. On the other hand, recording a quiet conversation in a home or office would carry the restrictions of federal and state wiretapping laws.
Failure to understand the expectation of privacy standard has sparked some notable lawsuits. In 1997, a Michigan appellate court held that producers of Sally Jesse Raphael's talk show acted improperly for recording a mother-daughter confrontation at a public park. The court ruled that the mother's privacy had been violated--because she would not have consented to the recording, once she realized how the material would be used.
Surreptitiously placing an electronic recording device or "bug" to record conversations between people who have not consented--such as in a home, office or public setting like a restaurant--is illegal under federal and most state laws. Unauthorized or illegal recordings of conversations can raise grounds for a civil lawsuit for invasion of privacy.