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Know the Law Before Recording Conversations

  • September 13, 2010
  • by Cynthia Padilla

There are legal and ethical issues surrounding the recording of conversations. The laws regarding recording phone conversations for private investigators as well as the general public vary by state. But both Federal and state statutes govern the use of electronic recording equipment (electronic recording of conversations by phone or in person). The Federal and state wiretapping laws may limit your ability to record telephone conversations. Violations of these laws not only expose you to criminal prosecution, but also civil lawsuits in many states.

Federal law allows recording phone conversations and other electronic communications with the consent of at least one party to the call. It is almost always illegal to record a conversation when you are not a party, do not have consent to record, and the conversation could not naturally be overheard. Federal law and most states also prohibit the disclosure of the contents of an illegally intercepted call or communication.

The question to ask regarding the recording of phone conversations is whether you must get consent from one or all of the parties to a phone call or conversation before recording it. State statutes can be divided into two types: "one-party consent" statutes and "two-party consent" statutes. One-party consent laws permit recording conversations by one party without informing the other parties that they are doing so. Thirty-eight states and the District of Columbia are "one-party" states. Federal law is also one-party consent, allowing you to record a phone call or conversation as long as you are a party to the conversation.

Two-party consent laws require the consent of all parties (not just two) to a conversation before it can be recorded. The 12 two-party states include: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.

Criminal penalties are provided for in all states except Vermont. Vermont's statutes do not address interception of communications. But Vermont's Supreme Court ruled in 2002 that surreptitious electronic monitoring of communications in a person's home is an unlawful invasion of privacy. In Hawaii it's a misdemeanor for someone just to possess any material obtained through illegal surveillance.

About thirty-five states allow civil suits and penalties. For example, under California law, anyone injured by a violation of laws against disclosure of telephonic messages can recover civil damages of $5,000 or three times the actual damages (whichever is greater).

All laws regarding surveillance, not just recording conversations, are important for private investigators to be aware of since they may make certain services impossible to perform. For example, if you practice in Arizona and a client wants you to catch a cheating spouse "in the act," that may be impossible. That's because Arizona law makes it unlawful to photograph or film a person without consent while that person is in a bedroom or is undressed or involved in sexual activity (unless the surveillance is for security purposes and notice is posted!).

Also, Federal and many state laws do not permit you to surreptitiously place a bug or recording device on a person or telephone, or in a home or office in order to secretly record a conversation between two people who have not consented.

Know the laws before performing any kind of surveillance work or you may find yourself without a license and in jail.

This article was written by staff writer Cynthia Padilla.

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