There are many reasons why someone might want to record a phone call. Businesses do it all the time “for quality assurance purposes”, while individuals may want to record calls in order to remember important information or simply keep a record of a particular exchange of communication. On a dating chatline, for example, callers may want to play back conversations to relive a pleasant experience or to remember specific details about a new friend.
However, it’s important to understand the laws that govern recording conversations. In certain circumstances, recording a phone call is illegal and could lead to criminal prosecution or, at best, a civil suit. The things you need to consider are where the other person is located, what the laws are in his or her state, and whether you might be violating federal wiretapping laws if you’re not a party to the conversation.
According to federal law, it’s illegal to use any kind of device to secretly record someone else’s conversation. In other words, you can’t record the conversation of two or more other people who do not know of the recording or consent to it. This applies to any phone conversation as well as to any private face-to-face conversation that the person recording it could not naturally overhear. Not only is it against the law to record a conversation secretly, it is also illegal to share that conversation or the content of it with others.
One-Party Consent Laws
Federal law states that it is permissible to record a phone conversation if at least one person consents to it. In other words, as long as you agree to record your own call, you’re free to do it, without asking permission from the person on the other end of the line. If you wish to wiretap a phone in order to record someone else’s conversation, you can also do that as long as you have one person’s consent. The majority of states support one-party consent. In fact, thirty-eight states and the District of Columbia currently have their own one-party consent laws.
Two-Party Consent Laws
Eleven states, on the other hand, have some type of two-party consent law. These laws dictate that all parties to a conversation must give consent before a call can be recorded. In other words, a conversation among two or more participants cannot be recorded without permission from each person in the call. In Massachusetts, for example, the law states that calls cannot be recorded “in secret.” This wording is interpreted as a two-party consent law. It’s worth noting, however, that all military bases and Indian reservations are governed by the federal law allowing one-party consent, even if they are in a two-party consent state.
Two-Party Consent States
In a two-party or all-party consent state, you must have permission from all parties to a phone call. The following are two-party consent states along with a few specifics about each state’s law.
California: It is illegal to record a private conversation without the consent of all parties.
Connecticut: It is illegal to record a private conversation without either verbal or tacit consent from all parties. You may record a conversation if you first announce that the call is being recorded, if you secure verbal permission, or if you give an electronic signal that a recording device is being used.
Florida: It is illegal to record any in-person, phone, or electronic conversation that participants reasonably expect to be private unless you have the consent of all parties.
Maryland: It is illegal to secretly record any private conversation without the consent of all parties.
Massachusetts: It is illegal to record any private conversation if the other party or parties are not aware of it. If you announce that the call is recorded, it is up to the other party or parties to leave the conversation.
Michigan: It is illegal to eavesdrop on a private conversation, which includes making a recording of it without all parties’ consent. However, there is some debate about whether “eavesdrop” applies if you’re recording your own conversation.
Montana: It is illegal to record a conversation without providing notification to all parties.
Nevada: While it is legal to record an in-person conversation with only one party’s consent, it is illegal to record a phone call without all parties’ consent.
New Hampshire: It is illegal to record a private in-person, phone or electronic conversation or to share such a conversation without the consent of all parties.
Pennsylvania: It is illegal to record a phone call or in-person conversation where there is an expectation of privacy without all parties’ consent.
Washington State: It is illegal to record a phone call without announcing (and recording) the fact. Then, it is up to the conversation participants to leave the conversation if they don’t want to be recorded.
Vermont is an unusual case because it is the only state that has no laws regarding the recording of phone conversations. However, some court cases have set a precedent supporting all-party consent, so it is advisable to obtain consent if you want to record a call with someone in Vermont.
Calling Across State Lines
The confusion arises when you make a call across state lines, or when you don’t know the location of the person you’re calling. While a one-party consent law may be in effect in your state, your caller’s state may require two-party consent. In this case, it’s not clear whether federal or state law applies, and which state’s law would have priority. That’s why it’s best to get consent from all parties to a conversation when there is the slightest doubt about the legality of recording it.
“This Call May Be Recorded”
When you call any customer service number, you’ll most likely be told, “This call may be recorded for quality assurance purposes.” The company is not just informing you out of courtesy; by staying on the line, you are giving your tacit consent to be recorded, and thus, the company is not violating any wiretapping or two-party consent laws.
If you’re considering recording a phone conversation with a person who does not give his or her consent, check with an attorney who can advise you of the legality of your plan and inform you about any risks you might be taking.