Covertly Recording Telephone Conversations
The federal law makes it unlawful to record telephone conversations except in one party consent cases which permit one party consent recording by state law. What that means is a person can record their own telephone conversations without the knowledge or consent of the other party in those states that allow one party consent.
It’s important to understand the difference between what has become known as one party consent and two party or all party consent. One party consent simply means that one party to the conversation must have knowledge and give consent to the recording. Two party or all party consent means that every party to the conversation must have knowledge and give consent to the recording.
There are twelve states that require all party consent. They are:
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California |
There are 38 states that permit one party consent. They are:
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Alaska |
In all 50 states and through federal law, it’s considered illegal to record telephone conversations outside of one party consent. There are a couple of exceptions. In the state of California, one party consent can be applied only under circumstances in which one party is involved in criminal activity which would include extortion or blackmail. In the state of Arizona, the subscriber to a telephone service can record telephone conversations with no party consent when criminal activity is involved. Other than those two known exceptions, all other recordings outside of those states that permit one party consent are a violation of state and federal law. The question is often asked by clients if they can record the telephone conversations of their spouse in a domestic case or the conversations of their children concerning drug usage. In both of these cases, the answer is it’s unlawful. Many clients will complain that they own the telephone and pay the telephone bill so they should therefore have a right to record what they want. However, the law doesn’t address who owns the phone nor who pays the phone bill. It only addresses the use of one party and all party consent. Anything outside of that is a violation of state law and federal wiretapping law.
The Federal Communications Commission goes further into details on recording telephone conversations and states that the party recording must give verbal notification before the recording and that there must be a beep tone on the line to indicate that the line is being recorded.
Business Recordings
Federal law permits businesses to monitor phone calls that are business related when the monitoring is part or the ordinary course of business. When the content of the telephone conversation is of a personal nature, the monitoring must stop. In those cases of two party consent states, this exemption may be voided.
Calls Crossing State Lines
Calls that cross state lines become complicated legal issues especially when one state is a one party consent state and the other state is an all party consent state. What has happened is that you didn’t violate the law in the one party consent state and violated the law in the all party consent state. Moreover, since the call went across a state line, the federal laws would certainly apply. The most famous case involving this type of issue is the Linda Trip case. You will recall that Linda Trip recorded the telephone conversations of Monica Lewinski concerning her relationship with President Clinton. Trip was in Maryland and Lewinski was in DC. Note that Maryland is an all party consent state while DC is a one party consent state. The law is actually quite fuzzy on these issues. The recorder is advised to assume that the sticker law would apply.
Cell Phones And Wireless Phones
Cell and wireless telephones transmit conversation through the air like a radio does. You hear old stories of spying using scanners locked onto a wireless telephone frequency with an attached voice activated tape recorder connected to it to eavesdrop on the conversation. Until certainly, the laws concerning this activity was fuzzy. However, federal law now makes it illegal to record both wireless and cell phone conversations outside of one party consent. You used to be able to go into places like Radio Shack and purchase scanners that would lock onto the frequencies needed to pick up wireless and cell phone conversations. These scanners are now illegal to sell or be in possession of.
| STATE-BY-STATE ALPHABETICAL LISTAlabama – One Party Alaska – One Party Arkansas – One Party California – All Party Colorado – One Party Connecticut – All Party Delaware – All Party District of Columbia – One Party Florida – All Party Georgia – One Party Hawaii – One Party Idaho – One Party Illinois – All Party Indiana – One Party Iowa – One Party Kansas – One Party Kentucky – One Party Louisiana – One Party Maine – One Party Maryland – All Party Massachusetts – All Party Michigan – All Party Minnesota – One Party Mississippi – One Party Missouri – One Party Montana – All Party Nebraska – One Party Nevada – One Party New Hampshire – All Party New Jersey – One Party New Mexico – One Party New York – One Party North Carolina – One Party North Dakota – One Party Ohio – One Party Oklahoma – One Party Oregon – One Party Pennsylvania – All Party Rhode Island – One Party South Carolina – One Party South Dakota – One Party Tennessee – One Party Texas – One Party Utah – One Party Vermont – One Party Virginia – One Party Washington – All Party West Virginia – One Party Wisconsin – One Party Wyoming – One Party |
Compiled by: Ralph Thomas
Source: Trents List.org
