Everyone knows that your friend’s husband is a philanderer except her, and she will not believe you without proof. So you hatch a plan: The next time he corners you by the onion dip, you are going to tape his flirtatious comments – but you are not sure if this is legal. While it is true that police officers must get a warrant before recording conversations, the rules are different for private citizens, so whether you can record the scoundrel depends on if your state is a one- or two-party consent state.
Whether or not you, as an average citizen, can legally record a conversation comes down to one important thing – consent. You must know what the law of your state requires with regard to obtaining consent of the parties involved. You must know who can agree to let you tape-record the conversation before you do so, and then you must actually get their permission. For example, before an insurance company records the statement of a witness to an accident, in most states, the company representative will first ask the witness for his permission to do so.
Federal Consent Law
The federal one-party consent law regarding recording conversations requires only one party to the conversation to agree to the recording – and this person can be you, the recorder. If you are buying a car and want to hold the sales person to his promises, you can record your conversation with him without telling him under the federal rule. The same is true if your wife is talking to the agent, as long as she gives you permission to record it. But you cannot record a conversation if doing so violates other laws, including the recording laws of your state, which may be more stringent.
State Consent Law
Most state laws mirror the federal law, meaning most states also have one-party consent laws. On the other hand, some states, such as California and Florida, are “two-party consent” states. The name of the law is misleading, however, because it applies to all parties participating in the conversation regardless of number. Everyone must know you are going to record the conversation and agree to it before you can legally do so.
Illegal Tape Recording
One thing you cannot do under federal or state laws, however, is record conversations you are not part of without anyone knowing. For example, as a private citizen, you cannot tap into a phone line and surreptitiously listen to and record the conversation, a practice known as wiretapping. You also cannot lurk behind a bush, crouch below a window or hide in any other manner while sneakily recording the conversation of other people without their consent.
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