Career Advice

Illegally Recording Private Conversations


Lately I have ran across numerous situations involving the illegal recording of private conversations and thought I would highlight the legalities and pitfalls involved. With the mass availability of devices (cell phones, mini-recorders, laptops, watches, i-pads) that can surreptitiously record telephone and face to face conversations there is now an increased temptation by many individuals to do so. However, without researching the legalities of such actions, this could result in being criminally prosecuted for a felony offense or having a civil lawsuit filed against you. It would behoove you to be familiar with Federal and state wiretapping laws before engaging in any such activity.

In general, Federal law requires at a minimum that one party consent to recording telephone and in-person conversations as long as the other party has full knowledge that the communication will be recorded. Laws vary from state to state, but the majority of states also have this same requirement. Additionally, Federal and most state laws make it illegal to disclose the contents of an illegally recorded conversation to any outside parties. Eleven states requires that everyone involved in the conversation to give consent. Does this mean all parties have to have their consent recorded in order for it to be legal? No, in some states it is enough that they are informed and know that you are recording and voluntarily proceed with the conversation anyway.

Where consent is not required

Some situations where consent is not required is at public gathering, speeches, or events where there is no reasonable expectation of privacy. What about recording police in the performance of their duties? A lot of media attention has focused on this topic as of late. Generally speaking, case law has established that you may record police officers in public settings as long as you are not interfering with an arrest, trespassing onto government or private property, not interfering with an official activity, and are following legitimate orders or instructions of an appointed official.

The bottom line is this: failure to provide notification or obtain consent, or the failure to adhere to the above guidelines regarding recording police and public officials could result in felony charges or monetary damages being awarded against you in a civil suit. Make sure you know what the legal requirements are both Federal and for the state you are located in order to prevent any additional unwanted consequences like loss of a security clearance or termination from employment.

Comment Archive

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    Technology has made it too easy to do something stupid, and felonious. And at the same time laws are becoming a matter of perception and interpretation. Truly Orwellian. See the book “Three Felonies a Day: How the Feds Target the Innocent” by civil libertarian lawyer and professor Harvey Silverglate. The average American goes through his or her day and commits– unbeknownst to him or her– three felonies on average that day. This is due to the laws becoming both broad and vague, which makes it possible to pin federal felony crimes on innocuous behavior.

    This is a little off topic but related…

    In addition to the federal laws, many states have passed “upskirting” or “downblousing” laws which make it a crime to record a person in a public space for vouyeristic purposes. The laws have become very general and it seems it could be at the discretion of the person being recorded as to what constitutes a violation. E.g., a guy sees an attractive woman in a t-shirt and shorts (no upskirting or downblousing possible) on a subway platform and starts recording on his iPhone. He places the iPhone in his shirt pocket and walks past the woman a couple times. She suspects he hit record prior to walking by her and calls the cops. She says she feels as if she has been violated by this vouyeristic creapster. There are upskirting laws on the books in that state so the cop makes the arrest and leaves it to the courts to sort out. The guy is then left with a choice, plead to a misdemeanor sexual crime or go to court, pay $20k in legal bills, and possibly land a more serious conviction. Either way, Phe can look forward to a lifetime of registering as a sex offender and having neighbors and coworkers and potential suitors Google his name and find his mugshot on the state’s sexual offender registry.

    So, be extremely careful when using the audio and video recording features on your smartphone.

  2. Avatar

    Here is an interesting twist. In “Joisey” its legal to record a conversations with one person consent/knowledge. If you place a telephone call to Pennsylvania, where two party consent is required, who has jurisdiction and where did the crime occur, if any ?

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      Over the phone and across state lines might be federal jurisdiction. But what on the NJ/PA state line, e.g., standing in PA recording the conversation with a parabolic microphone directed at a person talking on a phone across the state line in NJ?

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        Legal counsel should be sought to find the “legal” answer, but from what I can gather it matters not which state the offender is in, whichever state has a law against it can prosecute.