Communications and Media

Recording Telephone Calls and Wiretapping

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the conversation. A majority of the states have enacted wiretapping statutes based on federal law. In addition, most states apply their law to person-to-person or "live" conversations. The term electronic communication is used so that the laws will apply to telephones, cordless phones, cell phones, and audio portions of film or videotaped conversations.

"One-Party Consent" Statutes

More than half of the states and Washington D.C. permit the recording of conversations with the consent of one of the people involved. This is called a one-party consent law. What this means is simply that with the consent of one person or party to the conversation, recording the conversation is not a violation of the law.

Two-Party Consent Statutes

Other states require, under most circumstances, the consent of all parties to a conversation for a legal recording. While these statutes are sometimes called two-party consent laws the reality is that in these states the consent of all the parties to a conversation is required in order to legally record the conversation.

Business Conversations

There is an exception in the federal law that allows companies to monitor conversations in the ordinary course of business, such as customer service calls. This exception allows a company to monitor phone calls on company phones "in the company's ordinary course of business." The exception requires the employer to give reasonable notice that the call might be monitored or recorded and limits such activities to "legitimate business purposes," which might include training, quality control and efforts made in good faith to detect suspected wrongdoing. To minimize disputes, however, it is always safer to obtain actual consent.

An exception to Federal Communications Commission (FCC) regulations allows a company to record its wireline telephone calls by giving an announcement at the beginning of interstate calls (calls between two states) and international calls. We've all heard "this call may be monitored for customer service purposes" announcements, which are designed to protect the privacy of callers by notifying them that their calls are being recorded.

Recording the Conversations of Other People

It is almost always illegal to record the conversations of others. This is called warrantless surveillance. Of course, with a court order, the recording of other peoples' conversations is a legal act, but you may not record other peoples' conversations on your own. What this means is that, even in a state with a one-party consent statute, if you are not involved in the conversation, or not in a place where you could naturally overhear the conversation, recording the conversation would be illegal. In addition, the mere disclosure of the conversation, whether live or over the telephone is a violation of federal law if the disclosure was without the required consent.

There are several other issues that apply to recording conversations. If there is a videotape, the audio portion of the videotape is treated as any other audio recording, subject to both federal law and the state law that would be applicable to the recording of a conversation. A recording device in plain view is presumed to be used with the consent of all persons who can see it. Also, if a conversation takes place in multiple states, the laws of those states may apply. What this means is that if you record a phone call while you are sitting in one state and the other person is sitting in another state, that conversation is an interstate communication and that other person could take legal action against you under the laws of either state, depending upon which state is more advantageous to him or her.

Cordless Phones and Cell Phones

Federal and state laws refer to electronic communication so that cordless phones and cellular phones will be covered. Under the Federal law, the definition of an electronic communication includes cell phones and cordless phone conversations. Under federal law, cellular and cordless phone conversations can be recorded with the consent of one party. Remember, in addition to federal law, the law of the state where any participant in a conversation is while he or she is talking also controls.

The Federal Communications Commission (FCC) has its own rules about taping phone conversations and requires an individual to notify other parties to the call before using a tape recorder in an interstate call. The individual may obtain the consent of all parties before making the call, notify them at the beginning of the call or use a regularly repeated "beep tone" throughout the call to notify all parties of the recording. The FCC rule is a TWO-PARTY rule.

How a Lawyer Can Help

If you are thinking about recording conversations, remember there is a pattern of federal and state laws that will determine what is legal and what is illegal. The penalties for violations are very, very severe. A violation may result in much more than just a "slap on the wrist." In addition to the severity of the penalties, the determination of which state laws apply is also complicated. If you think that somebody has recorded your conversations, talking with a lawyer will help you understand your rights.

Questions for Your Attorney

  • What is our state's law?
  • What can I do if I believe that somebody has recorded my telephone calls?
  • What about my employer? may he or she record my work conversations or my personal conversations at work?
  • What about my ex-spouse or companion, may he or she record my conversations during a custody or divorce proceeding?
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