Is It Legal to Secretly Record People?
General consideration for investigators who want to record over the phone or in-person conversations
Moments, when we need to record a call or a conversation, happen often in our private lives or work as investigators. It’s often unclear if it’s legal to do so, especially if the recordings are planned to be used in a legal case. The U.S. federal law requires that at least one person need to know that the conversation is recorded, but state laws have distinctive rules that we need to follow to comply with the law.
Two types of state law require different levels of consent. You can live in a state where it’s mandatory to notify all parties of the conversation or just one, which is usually the initiator of the recording. If the initiator is not present, which can happen in the case of a listening and recording device, consent still needs to be obtained (unless there is an exception from a state that allows recording in public settings or to collect evidence of a crime). The consent warning can be made via a verbal or written notification or an audible beep tone repeated at regular intervals during the call.
State law exceptions can affect how consent needs to be obtained. Nine states are required to notify both parties of the conversation without exceptions – California, Florida, Maryland, Montana, New Hampshire, Pennsylvania, Washington, Massachusetts, and Illinois. Two-party consent means that all participants of the conversation have to be notified about the recording, not just two.
Michigan will require two-party consent if the recording person isn’t a part of the conversation. South Dakota has a similar requirement but allows one participant’s consent.
Some states have conditional recording laws. Connecticut and Nevada require all parties to be notified in electronic recordings, but in-person conversations allow only one-party consent. Oregon requires one-party consent for electronic communication and two-party consent for in-person recordings.
Hawaii requires one-party consent unless the recoding happens in a private place. Rhode Island doesn’t require consent when privacy is not expected. Vermont doesn’t have a special law so it’s considered a one-party state.
Interstate communication has requirements too. For example, if you call from a one-party state to someone in California, which is a two-party state, you have to comply with the laws of California. Other states apply the law of the physical location of the recording device. A general recommendation for interstate communication is to receive consent from everyone participating in the recording.
Breaking a recording law can be considered a misdemeanor in some states or a felony in others. Violators can also become subjects of civil liability. Recordings made with a violation of law are also inadmissible in a court, so investigators need to consult a law professional before engaging in the act.
