Using recording devices to record conversations can be a tricky area when it comes to the law. Both states and the federal government have criminal laws that apply in wiretapping cases. These laws impose serious penalties for anyone convicted of illegally wiretapping or recording conversations.
U.S. Code § 2510 et. seq. sets out the federal laws governing wiretapping. The federal laws on wiretapping apply whenever anyone records any conversation, whether it is oral, electronic or over a "wire." A wire communication is defined as any aural transfer aided by use of a wire, cable or other connection that allows two or more speakers to communicate between a point of origin and point of reception.
Federal law, as well as most state laws, require one-party approval for anyone to legally record telephone or wire conversations. These "one-party consent" laws effectively make it possible for anyone participating in a conversation to record it without asking the other party's permission. If a party is not a part of a conversation, federal law requires that party receive a search warrant or the permission of all parties to record a conversation.
It is illegal to record, use or disclose information through the use of an illegal wire tap or recording device. Anyone found guilty of such a crime faces criminal punishments of up to five years in prison and a $250,000 fine for each violation. Civil penalties also apply, including paying for the opposing party's attorney's fees and potential punitive damages.
Federal law enforcement officers can record phone calls and use wiretap devices only after applying for and being granted a warrant by a federal judge or magistrate. Such warrants can only be granted if the law enforcement agency provides the judge with evidence showing probable cause to believe a crime has been or is about to be committed. Such search warrants are typically granted for a period of 30 days, after which they must be renewed by new showings of probable cause.
While federal law allows one-party consent, not all states do. Some states require all parties to consent to the recording of any phone conversation. This complicates matters when dealing with federal wiretapping laws. For example, if one party in a phone conversation lives in a state where one-party consent is allowed but the other lives in a state where it is not, the laws of both states as well as federal law may apply.