Episode 103: August 17, 2012
by Adam Freedman
Today’s topic: Recording conversations.
Is It Legal to Record a Conversation?
Blaine from Viriginia asks whether it’s illegal to record a conversation with a “smartpen.” A smartpen, evidently, is a pen with a tiny digital recording device hidden inside--who knew? Blaine says that he goes to meetings where he takes notes with this pen, and well, why not switch on the recording device and make his life a little easier?
Blaine, the short answer is that you might be able to record a conversation with your smartpen, but only if you’re also wearing your Maxwell Smart shoephone. Actually, the answer is a little more complicated than that.
What is the “Wiretap Act”?
People ask me about recording conversations and telephone calls all the time. With technology advancing ever faster, there are more and more devices for intercepting our communications--yes, even smartpens.
The federal law allows any person whose conversation is illegally recorded to sue the offending party.
The first thing you should know is that the federal government, all 50 states and the District of Columbia, have laws regulating the interception of communications. The federal law, often referred to as the “Wiretap Act,” prohibits people from intercepting certain communications, and allows any person whose conversation is illegally recorded to sue the offending party. The state laws are often carbon copies of the federal law, but some of them are even more strict.
Only “Private” Conversations are Protected
Under these laws, the first question you should always ask yourself is whether the conversation you’re thinking of recording is actually covered by the statute. Generally speaking, the test is whether the parties to the conversation have a “reasonable expectation of privacy.” For example, if a person is standing on a busy corner, and yelling through a megaphone about how the world is coming to an end, he probably does not expect his words to be private, so he can hardly object if you whip out your smartpen and record some of his pearls of wisdom. On the other hand, when you sit down to have a glass of wine with your best friend, she might be surprised to discover that you’re wearing a wire.
What is a Reasonable Expectation of Privacy?
But it’s not always clear what is a “reasonable” expectation of privacy. In one Maryland case, an apartment dweller recorded his neighbor’s conversation, which he could hear right through the adjoining wall. An appeals court rejected the claim that this recording was unlawful, on the grounds that anybody who speaks loudly enough to be heard in the next apartment has no reasonable expectation of privacy. It just confirms what your mother probably told you long ago: remember to use your “inside voice” when you’re talking indoors.
This brings me to a question from another listener to this podcast, Jax from Washington State, who asks whether it would be lawful to record the local school bus driver, who he suspects is being verbally abusive to the children on the bus. In a case that went up to the Wisconsin Supreme Court last year, it was held that a school bus driver does not have a reasonable expectation of privacy while driving the bus. It appears that administrators in other states have reached similar conclusions, although I cannot find a Washington State decision exactly on point.
In any event, if a conversation is, or might be, considered “private” by a court, then the next question is whether there are any exceptions to the statutory prohibitions. For example, the law generally exempts employees of communication service providers--like mobile phone networks--who are allowed to intercept communications to the extent it’s necessary to their job.
Consent is Not Always Required
The most commonly-invoked exception is consent. Thirty-eight states and the District of Columbia have so-called “one-party consent” statutes. That means individuals can record conversations to which they are a party without telling the other parties. In the other 12 states, you generally have to get the consent of all parties to a conversation in order to make a recording. Logically enough, these laws are known as “all-party consent” statutes.
In the case of telephone conversations, even if you live in a one-party state, be careful about recording conversations with people in other states. If the other person lives in an all-party consent state, a court might decide that you had to get his or her consent regardless of what your state law says.
Different Rules Apply to the Police
One final note: the laws I’ve been discussing apply to the actions of private individuals, not government officials. When the FBI, police, or other government officials intercept communications, a whole different set of legal considerations apply, including constitutional issues of due process.
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