Covertly
Recording Telephone Conversations
Compiled By Ralph Thomas
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:
California |
There are 38 states that permit one party consent. They are:
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 LIST |
Other
Related Links:
A Practical Guide
to Taping Phone Calls
and In-Person Conversations in the 50 States and D.C.
http://www.rcfp.org/taping/
18 USC 2510, et seq, The Electronic Communications Privacy Act of 1986.
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION
AND INTERCEPTION OF ORAL COMMUNICATIONS
 |
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Copyright: 2006, Ralph D. Thomas
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