This is a list of the applicable law regarding whether telephone conversations may be lawfully recorded.
The federal statute covering the interception and disclosure of wire communications is codified at 18 U.S.C. § 2511.
Federal law may apply when the conversation is between parties who are in different states but It is unsettled whether a court will hold in a given case that federal law "preempts" state law, but either state may choose to enforce its own laws. Therefore it is better to take caution when recording an interstate telephone call.
In order to be safe remember that interstate calls implicates three bodies of law, federal law, the law of the calling-party's state, and the law of the called- party's state. Each law must be obeyed.
Many of the state statutes in this area are based on the federal law. Federal law It requires one-party consent and states it is lawful
"for a person not acting under the color of state law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortuous act in violation of the Constitution or laws of the United States or of any state." (18 U.S.C. §2511(d).)
There is a federal "Business telephone" exception
The "business telephone" exception, which generally allows monitoring of calls and taping over an extension phone which is both provided to a subscriber in the ordinary course of a telephone company's business and is being used by that subscriber in the ordinary course of its business. This provision generally permits businesses to monitor the conversations of their employees, including personal conversations.
Consumer usually tape record calls in order to use them as evidence in court, there is circumstances where such recordings will not be admissible evidence in court
If for instance, a collector is calling from a state where recording without consent of both parties is illegal and he does not state that they may record the conversation, your tape might not be admissible in court.
As general rule if if the recording is made in violation of any applicable federal or state law, the recordings will certainly be inadmissible. In addition even if lawfully recorded, the tapes might be inadmissible by the hearsay rule
Anyone contemplating an evidentiary use of surreptitious recordings should consult with an attorney prior to making the recording.
As for state law each state can be grouped into one of two categories: One party or two party state
Below are a list of states by category:.
The correspondent state laws are as follows
Alabama Ala. Code § 13A-11-30(1)
The Statutory definition of eavesdropping excludes the recording of a conversation with the consent of one party. Thus, the citizen has a right to record his own conversations.
Alaska Alaska Stat. §§ 42.40.300(a) & 42.20.310(a)(1)
Statute does not prohibit the use of an eavesdropping device to record a private conversation when there is the consent of "a party to the conversation." Accord Palmer v. State , 604 P. 2d 1106, 1108 n. 5 (Alaska 1976)(finding the statute was clearly intended to prohibit third-party eavesdropping and is not applicable to a situation where one of the participants recorded the conversation.)
Arizona Ariz. Rev. Stat. Ann. § 13-3005
Arizona is a "one-party" state, ARS 13-3005.A(1)(2), and also permits a telephone "subscriber" (the person who orders the phone service and whose name is on the bill) to tape (intercept) calls without being a party to the conversation and without requiring any notification to any parties to the call, ARS 13-3012(5)(c).
Arkansas Ark. Code Ann. § 5-80-120(a)
It is lawful to record a communication if one is a party to the communication or has received the prior consent of a party to the communication.
California Cal. Penal Code § 632(a)
Statute prohibits the recording of confidential communications including the use of information obtained through interception without "the consent of all parties."(California Penal Code Sections 631 & 632).
Evidence obtained in violation of this section may not be used in any judicial proceeding.
This prohibition is confined to confidential communications, defined by statute as "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties there to," but does not include communications made under any circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded."
Although California is a two-party state, it is also legal to record a conversation if you include a beep on the recorder and for the parties to hear.
There is no statutory business telephone exception and the relevant case law excludes this possibility.
California courts have recognized "implied" consent as being sufficient to satisfy the statute where one party has expressly agreed to the taping and the other continues the conversation after having been informed that the call is being recorded.
Violation is punishable by a fine of up to $2,500, imprisonment for not more than one year, or both.
A civil plaintiff may recover the greater of $3,000 or three times the amount of any actual damages sustained.
Colorado Colo. Rev. Stat. § 18-9-303(1)
Statute does not prohibit the recording of a conversation by either a "sender or intended receiver" of a telephone communication.
Connecticut Conn. Gen. Stat. Ann. § 52-570d(a)
Statute creates a civil cause of action for any person whose telephone conversation is recorded unless the person recording the conversation received the "consent of all parties to the communication." Consent must be obtained either in writing or at the beginning of the recorded conversation."
Delaware Del. Code. Ann. tit. 11, § 1335(a)(4)
It is a violation of privacy (both a criminal misdemeanour and civilly actionable) to intercept a telephone conversation without the consent of all parties.
District of Columbia D.C. Code. Ann. § 23-542(b)(3)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Georgia Ga. Code Ann. §§ 16-11-62 Statute allows a party to a communication to record the communication. Accord Sheppard v. 16-11-66(a)Reid, 402 S.E.2d 793,793-94 (Ga. Ct. App. 1991)
Hawaii Haw. Rev. Stat. §§803-42(b)(3) & 711-1111(1)(d)
It is neither invasion of privacy nor eavesdropping to record a telephone conversation if a party to the conversation.
Illinois 720 ILS 5/14-2"(a)
Illinois is, by statute, a two-party state. But, Illinois courts have found that the recording of a conversation by a party to the conversation is not a violation of the statute even if another party to the conversation is unaware of the recording. People v. Jansen, 561 N.E.2d 312, 314 (Ill. App. Ct. 1990).
I However, case law from both the IL Supreme Court and various Illinois appellate courts have declared Illinois a one-party state in the case of private citizens (businesses and plain folks - NOT law enforcement).
The reigning consensus is that one-party consensual recording is merely "enhanced note-taking" and since some folks have total recall without recording, how can the other party have any expectation of privacy to a conversation held with another person.
There is no specific business telephone exception, but in general courts have found extension telephones do not constitute eavesdropping devices. Criminal penalties for unlawful eavesdropping include up to three years' imprisonment or $10,000 in fines and the civil remedy provides for recovery of actual and punitive damages.
In the state of Illinois it is illegal to monitor cordless phones.
Indiana Ind. Code Ann. § 35-33.5-1-5(2)
Statute allows the recording of a telephone conversation by either the sender or receiver of the communication As far as what is admissible in court it is still being tested on a per case bases.
Iowa Iowa Code Ann. §§ 727.8 & 808B.2(2)(c)
Statute allows a sender or receiver to record a telephone conversation
Kansas Kan. Stat. Ann. §§ 21-4001(a)(3) & 21-4002(a)(1)
It is neither invasion of privacy nor eavesdropping to record a telephone conversation if the recording is accomplished with the consent of either the sender or receiver of the communication. Accord State v. Norris, 502 P .2d 817, 823 (Kan. 1972)
Kentucky Ky. Rev. Stat. Ann. § 526.010
To avoid falling under the eavesdropping statute the consent of at least one party to the telephone conversation must be received
Louisiana Rev 15:1303 C(4)
A person in Louisiana may tape his or her own telephonic or face-to-face conversation with another without telling the other person, and such tape is admissible. Directly in point is Louisiana Revised Statutes 15:1303 C(4), which provides:
"It shall not be unlawful under this Chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication . . . . "
A prior Louisiana statute prohibiting persons from recording conversations to which they were a party was stricken as unconstitutional in Kirk v. State, 526 So.2d 223 (La. 1988).
Telephonic or face-to-face conversations recorded by one party to the conversation without the knowledge or consent of the other parties have been held to constitute admissible evidence in Louisiana.
There are too many cases to cite. Illustrative are:
- State v. West, 553 So.2d 945 (4th Cir. 1989), and In re Hagarty, 257 La. 1, 241 So.2d 469 (1970).
If it is urged that federal wiretap laws prohibit the recording of a telephone conversation by a person who is a party to the conversation, that argument was put to rest shortly after enactment of the present-day federal wiretap statute.
- Meredith v. Gavin, 446 F.2d 794 (8th Cir. 1971)
stands as good law to this day, with no contrary cases on the federal level.
Any seemingly opposing cases on the federal level are distinguishable: In each, a true "wiretap" was involved and none of the parties to the conversation made or authorized the recording or knew of the eavesdropper's existence.
On the state level, some states (California, Illinois, Massachusetts, Florida and Hawaii, for example) have laws that, unlike Louisiana Revised Statutes 15:1303 C(4), do not permit but specifically prohibit a person recording his or her own conversations with others.
Massachusetts Massachusetts Gen. Laws Ann. ch. 272, Sec. 99
Massachusetts requires consent of al parties unless another exception applies
Telephone equipment, which is furnished to a phone company subscriber and used in the ordinary course of business, is excluded from the definition of unlawful interception devices (Id. at 99(B)(3)).
Office intercommunication systems used in the ordinary course of business are similarly exempt (Id. at 99(D)(1)(b)). The criminal penalty is a fine of up to $10,000, imprisonment for up to five years, or both. In civil litigation, an injured party may recover actual and punitive damages as well as costs and fees. It is a separate violation to divulge or use the information garnered through unlawful interception and an additional penalty of up to two years in prison or $5,000 may be imposed on this count.
Minnesota Minn. Stat. Ann §626A.D2 subd. 2(d)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication
Mississippi Miss. Code Ann. §41-29-531(e)
Statute exempts from civil liability the interception of a communication if the interceptor is a party to the communication or has received the prior consent of a party to the communication
Missouri Mo. Ann. Stat. § 542.402(2)(3)(Supp.)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication
Montana Mont. Code Ann. § 45-8-213
It is a violation of privacy in communications to record a conversation "without the knowledge of all parties to the conversation." But, Montana case law indicates, at least in a criminal setting, that recording a telephone conversation when one of the participants consents is permissible. State v. Coleman , 616 P.2d 1090, 1096 (Mont. 1980). see also State v. Brown 755 P.2d 1364, 1368 (Mont. 1988); State v. Cannon, 687 P .2d 705, 708 (Mont. 1984).
Nebraska Neb. Rev. Stat. § 86-702(2)(c)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Nevada Nev. Rev. Stat. §§200.620 & 48.077
It is unlawful to intercept a telephone conversation unless one party to the communication consents and an emergency situation exists making it impractical to get a court order permitting the interception. But, Nevada statutorily allows the admission in its courts of the contents of any communication lawfully intercepted under the laws of another jurisdiction if the interception occurred in the other jurisdiction.
New Hampshire N.H. Rev. Stat. Ann. §570-A:2(1-a)
It is unlawful to record a telephone conversation without the consent of all parties to the conversation.
New Jersey N.J. Rev. Stat. §2A:156A-4(d)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
New Mexico N.M. Stat. Ann §30-12-1(C)&(E)
It is lawful to record a telephone conversation with the consent of a "sender or intended recipient" of the conversation.
New York N.Y. Penal Law §250.00(1)
It is lawful to record a telephone conversation if one is a party to the conversation or has received the consent of a party to the communication. Accord People v. Lasher, 447 N.E.2d. 70, 71 (N.Y. 1983).However some courts will not admit an interview with a witness to an event if they were not informed they were being recorded. Apparently the judge may use his discretion whether or not the evidence obtained is admissible in court.
North Carolina N.C. Gen Stat. §15A-287(a)
It is lawful to intercept a communication with the consent of one party to the communication.
North Dakota N.D. Cent. Code §12.1-15-02(3)(c)
It is a defense to prosecution for interception of wire communications that one was a party to the communication or one of the parties to the communication gave prior consent to the interception
Ohio Ohio Rev. Code Ann. §2933.52(B)(4)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Oklahoma Okla. Stat. Ann. tit. 13, §176.4(5)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Pennsylvania 18 Pa. Cons. Stat Ann. §5704(4)
It is unlawful to intercept a telephone conversation unless all parties to the conversation give prior consent to the interception (18 Pa. Cons. Stat. Ann. Sec. 5704(4) ). See Commonwealth v. McCoy 275 A. 2d 28, 30 (Pa. 1971); Commonwealth v. Jung, 531 A.2d 498, 502-04 (Pa. Super. Ct. 1987).
There is te following exemptions
- The non-consenting party threatens the life or physical well being of the consenting party, or any member of his/her family.
- The non-consenting party commits any criminal action (the statute specifically uses the example of telling the consenting party that they have marijuana they want the consenter to buy, but does state ANY criminal act).
Felony penalties may be imposed for violation of the Pennsylvania statute
Rhode Island R.I. Gen. Laws §11-35-21(c)(3)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
South Carolina No state statute
South Carolina does not have a state statute on its books that regulates the interception of phone conversations. But, South Carolina case law indicates that when such issues arise in South Carolina courts, the courts will look to 18 U.S.C §2511. the federal statute on the interception and disclosure of wire communications. Under 18 U.S.C. §2511(2)(d), it is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication. See Mays v. Mays, 229 S.E.2d 725, 726-27 (S.C. 1976) (finding that 18 U.S.C. §2511(2)(d) "makes it clear that one party to a telephone conversation may lawfully tape the conversation without the other's knowledge or permission and subsequently disclose [the conversation]."); Thompson v. State , 479 S.E.2d 808, 810-11 (S.C. Ct. App. 1996) (finding that taped telephone conversations between defendant and confidential informant did not violate 18 U.S.C. §2511 and the defendants right to privacy).
South Dakota S.D. Codified Laws Ann. §23A-35A-20(1)
It is lawful to record a telephone communication if one is a sender or receiver of the communication or has received the consent of a sender or receiver of the communication.
Tennessee Tenn. Code Ann. §39-13-601(b)(5)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Texas Tex. Penal Code Ann. §16.D2(c)(4)
It is an affirmative defense to prosecution for interception of wire communications that one was a party to the communication or one of the parties to the communication gave prior consent to the interception.
Utah Utah Code Ann. §§76-9-401(2), 76-9-403(1)(a), & 77-23a-4(7)(b)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Vermont No state statute
There is no state statute on the books regulating the interception of telephone conversations. The case law is sparse in this area and has not yielded a clear indication of whether Vermont is a one-party or two-party consent state. In one case, the court indicated, without deciding the issue, that the federal statute on interception and disclosure of wire communications (18 U.S.C. §2511) was applicable in the state setting. State v. Fuller, 503 A. 2d 550, 551 (Vt. 1985) . The federal statute permits one party to a communication to intercept the communication. Another Vermont case indicates that, in a criminal setting , challenges to recorded conversations may be made on Fourth, Fifth, and Sixth Amendment grounds. State v. Kasper, 404 A.2d 85, 92-93 (Vt. 1979).
Washington Wash. Rev. Code Ann. §9.73.030(1)(a)
It is unlawful to record a telephone conversation without the consent of all the participants in the conversation. Some companies manage to work around that by going to the Indian reservations or any federally owned property to make the call - Federal law is a one party consent.
West Virginia W. Va. Code §62-1D-3(c)(2)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Wisconsin Wis. Stat Ann. §§968.31(c) &885.365(1)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication. But, another section of the Wisconsin code states that evidence obtained by recording telephone conversations is inadmissible in civil actions in the courts of Wisconsin except in murder or drug cases. . The Wisconsin Stats 885.365 Recorded telephone conversation (1) states:
"Evidence obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other number, shall be totally inadmissible in the court of this state in civil actions, except as provided by 968.28 to 968.37."
Exceptions are if the party is informed before the recording, if the party is informed at the time that the conversation is being recorded and that any evidence thereby obtained may be used in a court of law or if such recording is made through a recorder connector proved by the telecommunications utility as defined in WI Stats 968.28 - 968.37 {Wiretaps ordered by a court) which automatically produces a distinctive recorder tone that is repeated at intervals of approximately 15 seconds.
Fire department or law enforcement agencies are exempt as are court ordered wire tapes.
Also a recording on the phone made from a out of state call or made to an out of state party, has to have the party informed of the recording and his consent or the tone on line, every 15 seconds, or a consent in writing before the recording is started.
Needless to say this does not allow a person not a party to the conversation to record any part of the conversation without the parties to the conversation being informed the third party is recording the conversation.
Wyoming Wyo. Stat. §7-3-602(b)(iv)
It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
