Tape recording a phone or in-person conversation may serve many purposes in legal, business and personal settings. However, recording a conversation is not always legal. Anyone thinking of doing this should first review the federal and state laws about recording private conversations.
People often want to record private conversations for various reasons. Perhaps they believe it will help them with legal cases or they simply want to be able to reference details in the conversation later. However, it's important to understand the federal and state laws about recording conversations before engaging in this activity.
TL;DR (Too Long; Didn't Read)
Federal law allows people to record conversations as long as one person consents. However, some state laws and other exceptions prevent citizens from legally doing this.
Federal Laws Regarding Recording
Section 2511 of Title 18 in federal law prohibits people from recording private conversations that they are not involved in. This law prevents private citizens from spying on one another. For example, someone cannot place a secret recording device and keep records of discussions between two other people. However, the law allows for some situations in which recording is legal.
People can record conversations that others have in public, as they have no reasonable expectations of privacy in these settings. For example, people do not incur legal charges for recording something in public and accidentally picking up another person's private conversation. It's also important to note that this law does not apply to written communications.
Federal law also allows people to record conversations in which at least one person in the conversation consents to the recording. The other people in the discussion do not need to consent or even know about the recording in order to comply with federal law.
Recording Also Prohibited for Extortion
Federal law also prohibits people from recording one another for criminal or tortious intent, even if they meet the rest of these guidelines. This means that people cannot record conversations with the intention of blackmailing or extorting someone. Even when people meet all the federal guidelines for recording discussions, they must also ensure they do not break state laws.
State Laws on Recording Conversations
Most states operate under one-party consent laws. In these jurisdictions, a person may record conversations as long as they comply with federal law. So, if the person recording the discussion is party to the conversation, the recording is legal.
In these states, someone outside of the conversation may also record it if at least one person consents to the process. Nobody else in the discussion has to know about the recording device in order for it to be legal. Each jurisdiction may have exceptions to these rules, so it's important to check each state law before pushing the "record" button.
Some states use all-party consent laws that require everyone in the conversation to agree to having it recorded. These states include:
- New Hampshire
In most jurisdictions, these laws apply only when all parties have a reasonable expectation of privacy during the time of the conversation.
Interstate Conversations and Other Exceptions
People in different states often communicate by phone or video. The laws about recording these conversations get complicated when one person is in a one-party consent state and another is in an all-party consent jurisdiction. In general, people have the protections of the laws in their own states.
For example, someone in an all-party consent state may be able to record someone in a one-party consent state, which was the ruling of the New York Supreme Court in the case of Michael Krauss v. Globe International, Inc. However, the court in Kearney v. Salomon Smith Barney, Inc. in California determined that people in one-party states cannot record those in all-party states.
There are other exceptions to recording laws as well, even in all-party consent states. For example, California law states that one-party consent recording is legal if the consenting party believes they will collect evidence of a serious crime. It's important to check specific state laws before recording a conversation.
Grey Areas Regarding What Constitutes a Recording
There are also some grey areas regarding what constitutes a recording. As new technologies emerge, the courts must decide if live streaming video counts as recording, for example. When in doubt, people should ask a lawyer before recording conversations.
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