Audio Recording Laws in the US
With so much great technology on the market these days, it’s easier than ever to record conversations, whether it’s over a landline, mobile phone, or even in person with a hidden recording device.
Recorded conversations (whether on tape or digital) are often very useful in a variety of scenarios. These audio recordings can assist in an investigation of employee misconduct or business or personal lawsuits, including potential criminal investigations.
However, it is very important to make sure that any recording, whether of a telephone conversation or an in-person conversation, complies with federal and state laws. Otherwise, you may very well expose yourself to criminal charges or civil lawsuits. And it is unlikely that you will be able to legally use the recording for its original purpose.
Therefore, if you are thinking of recording some phone calls or placing a voice-activated recorder in a room to record conversations, you will need to check the applicable laws.
The first place to look is the federal wiretapping statute, also known as the Electronic Communications Privacy Act. Federal law allows telephone calls (traditional, cellular, and wireless) and other electronic communications to be recorded with the consent of at least one party to the conversation.
This means that if you are one of the people participating in the conversation, it can be recorded because a person (you) has consented to the recording. If you do not participate in the conversation, at least one person in the conversation must know and consent to the recording.
However, you can’t stop after considering federal law and assume your recording passes the test. Each state and territory has its own statutes regarding the recording of conversations. Most state wiretapping and eavesdropping laws are based on federal law and allow recording with the consent of one of the parties to the conversation.
The 37 states that allow the recording of a party’s consent to oral communications are: Alaska, Arkansas, Colorado, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin and Wyoming.
The District of Columbia also allows people to record conversations with the consent of only one party. Nevada has a one-party consent statute, but there is some question about how courts should interpret the law. It could be considered a state of consent of all parties.
The 12 states that definitely require consent from all parties to a conversation before it can be recorded are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington.
In California, there is an exception. You can record a conversation with the consent of only one party if it involves certain criminal activity (kidnapping, extortion, bribery, or a violent felony).
Therefore, the basic rule is that it is illegal to record conversations or communications in which you do not participate, unless you have given your consent to at least one, if not all, of the participants.
The obvious exception to this general rule is that law enforcement officials may seek permission from a court to conduct wiretapping without consent as part of a criminal investigation. For the finer points of your own state’s laws and requirements, you should always consult an attorney.