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The Legality of Recording Conversations

This episode deals with the legality of recordings made by private citizens who are not working in cahoots
with the government.

By Michael W. Flynn

August 18, 2012

In the first step, the most common issue is whether a conversation is private; most statutes only cover
confidential or private communication. A general rule is that if the people engaged in the conversation
can reasonably expect their conversation to remain private, then the statute protects that
conversation. Courts normally consider telephone conversations to be private. Some exceptions
include fellow members of a family listening by picking up an extension in the same house, and an
employee using a work telephone to make a personal call.
Some in-person discussions are considered private, and some are not. For example, in one case,
bugging a private house with a hidden microphone violated state law because the residents inside
reasonably expected their conversations to remain private. By contrast, one court held that a private
investigator who recorded a conversation while standing on a sidewalk outside a first-story apartment
did not record any "private communication" because the conversation could be heard clearly from the
public sidewalk through an open window. Another court held that a television station did not violate
state law when it secretly recorded a conversation between an actor and a producer at an outdoor
restaurant. The expectation of privacy analysis is very fact-specific.
Once a court determines that a conversation is private, and covered by the statute, then it will
consider various exceptions. The most common, and most litigated, is consent. Federal law allows
recording of phone calls and other electronic communications with the consent of at least one party
to the call. Thirty-eight states and the District of Columbia have followed federal law and permit
individuals to record conversations to which they are a party without informing the other parties that
they are doing so. These laws are referred to as "one-party consent" statutes, and as long as you are a
party to the conversation, it is legal for you to record it.

Consent of Parties

Twelve states require, under most circumstances, the consent of all parties to a conversation. Those
jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana,
Nevada, New Hampshire, Pennsylvania, and Washington. Be aware that you will sometimes hear
these referred to inaccurately as two-party consent laws. If there are more than two people involved
in the conversation, all must consent to the taping. The more accurate term is "all-party consent."
The situation can get hairy when a person in a one-party consent state calls and records a
conversation with a person in an all-party consent state, but does not get that persons permission.
There are several factors that go into which consent law applies. It is generally safer to assume that
the stricter, all-party consent law will apply where either the caller or receiver is in an all-party state.
Often, notice will be considered sufficient to find consent. For example, when you call tech support for
the laptop you just cannot figure out, the first thing you might hear is "this conversation may be
recorded for quality assurance." Most courts hold that, if you speak after hearing this notice, you have
given implied consent to the recording and cannot later maintain a civil suit.
There are a host of other exceptions based on legitimate business recordings, crime-tort exceptions,
and exceptions for telephone companies. Those will have to wait for another episode.

An Answer
Returning to Davids question, the answer is that "it depends." First, the court would determine whether
the resident could reasonably expect the conversations to be private given that they occur in a quasipublic place: at the front desk of a condominium complex. If the conversations are not considered
private, then David may record. If they are considered private, then the court would determine
whether proper consent would defeat the claim. If David lives in a one-party consent jurisdiction, then
only he would need to consent to the recording, but he would need the resident's consent or
knowledge in an all-party consent state.
Overall, be very careful before you record conversations with people. To be safe, always get the
express consent of all parties to the conversation, and check with an attorney licensed to practice in
your jurisdiction to help you wade through these issues.
Thank you for listening to Legal Lads Quick and Dirty Tips for a More Lawful Life. Send questions and
comments to legal@quickanddirtytips.com. Please note that doing so will not create an attorney-client
relationship and will be used for the purposes of this podcast only.

Surveillance image from Shutterstock

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Bill Taylor Grand Junction High School

In Colorado, is it legal for a third party to record on an iPad a visitation between a married couple?
Reply Like December 23 at 11:29am
Bonita Reppart Miller Shepherd University
Hi, Wondering the legal issues of this scenario? We experienced a house fire on July 2, 2014 we are
in month five and still no monetary assistance from insurance company. Today my adjuster
Promptinforms
Payment
me our Training
last phone conversation was being listened in on. Is this legal without my
knowledge? His office is in Fredrick MD and he phoned me in WV.
Reply Like December 12 at 1:37pm
Sean Kennedy

Top Commenter

I wish the answer could be more definitive. Here's my situation: I'm an armed security officer
working on a "government" contract and as such "government" property. I would like to wear my
voice recorder for my own protection, should I ever need to defend myself with lethal force or if I'm
ever accused of no being polite to a visitor OR if I ever have a conversation with my management
but some people have told me (without knowing the law or the facts) that I'm not suppose to have it
or wear it.
Reply Like August 31 at 9:45pm
Paige D'Agostino Chef at Self-Employed
If our Government can listen in on all transmissions..phone/internet/microwave trans, cells......our
constitution, guarantee of privacy, is shot........be careful with recordings use, check your laws...but
our government has gone over the edge.........record your relatives...mine have tried to screw
me...but wisdom out weighs stupidity, except in our Congress! isn't COVERED CALIFORNIA..ACA/
OBAMA..WELL ORGANIZED & THOUGHT OUT...OUR ONE PARTY SYSTEM DEM/REPUB IS 1
PARTY......THE PEOPLE MUST TAKE THE GOV'T BACK, only one thing in our way.....the army, the
police, THE 7 OR 8 WORLDS LARGEST BANKS....THE WATCHERS//THE SHOT CALLERS...AND
NOW THE UNHEARD OF CHANGE IN WEATHER, DO THE SHEEP IN THIS COUNTRY(CITIZENS),

NOW THE UNHEARD OF CHANGE IN WEATHER, DO THE SHEEP IN THIS COUNTRY(CITIZENS),

EVER LOOK UP///THOSE LINES IN THE SKY? PARALLEL CLOUDS, THOSE R CALLED CHEM
TRAILS, THE ONES OUR AIR COMMAND SPRAYS DAILY IN SONOMA COUNTY NORTH OF
S.F...LOOK UP PLEASE...BAAAHHHH! WHAT IS SPRAYED, OUR GOV'T USUALLY COMES UP WITH
A LIE, IN THIS SITUATION...ITS AS QUITE AS A DRONE RELEASING ITS MISSILE ON SOME
UNSUSPECTING SOUL? EDUCATE UR KIDS, KEEP THEM FROM DRUGS, AND HAVE BACK UP
WATER AND FOOD SUPPLIES, NOT PARANOID, ***SMART LIVING*** GOOD LUCK U.S.
CITIZENS......
Reply Like

2 February 1 at 10:31am

Eric Speier Composer at Speier Music Productions

I have a question. In California, if you call a business that has a recording, or says live at the
beginning of the voice call that the call may be recorded for quality assurance, does that allow the
consenting party to also record the call without further consent of the originally recording party?
I ask because it seems like the law is designed to inform the parties that a 3rd party may listen to
the privileged conversation, which would have already been established by the recording party and
the consenting as an acknowledgement of that fact.
Reply Like November 18, 2013 at 2:45pm
Lucero Maria Oceanside, New York
Hi I have a question .and sorry ahead I'm trying to express myself as clear I can do .my first
language is Spanish..I been a victim of domestic violence And I voice record my husband because
there is no other way to proof how he talks to me in front of our child and giving me hope saying we
will fix our marriage after he serve me divorce paper ,in a manipulated way trying to foce me to take
me to his parents house ,which I'm don't feel comfortable with discrimination Toward me even I
was born in the USA.I lived in south America .my husband lawyer Spoke to my lawyer to do a
settlement toward our son with custody ..I'm afraid I've been set up.meaning my husband family
has influence with the lawyer..I ve told my lawyer I had voice record of all incident with my husband
,as proof be mention I need metrication and he yells at my calling me names in front of my
child..this is the only wayni can proof to a judge? My lawyer say it's shaker the law ,can someone
tells me is true? How can I proof if my husband chande the words and makes me feel he never
mention or do anything wrong towards me ..is the only way getting out the thrift from him .and I
can protect my child .please answered for my peace of mind..thank you( M )
Reply Like

1 July 13, 2013 at 8:54pm

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