Episode 28: August 17, 2012
by Michael W. Flynn
Today’s topic is recording conversations.
But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
"I am a concierge at a condominium. On occasion, a certain resident of the condominium has made false claims that I was rude to them in our interactions at the front desk. I would like to make secret audio recordings of our future conversations, so that if the resident makes false claims in the future, I can provide proof against the claim to the management. Is this legal?"
Thanks David. Other listeners have written questions regarding the legality of recording telephone conversations as well. The answer to this question, and the answer to so many legal questions, is "it depends." This area of the law is not completely settled, and changes as our technology and notions of privacy change.
First, please note that this episode does not cover recordings made by government entities such as the FBI or local police. When government officials act, they are constrained by the Constitution and other laws. This episode only deals with the legality of recordings made by private citizens who are not working in cahoots with the government.
Is the Surveillance Legal?
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. §§ 2510-2520) generally provides that any person whose communication is intercepted, disclosed, or intentionally used can file a civil lawsuit. Many states have adopted the federal law, and some states provide greater protection.
Under most communication interception statutes, a two-step analysis is used to determine whether surveillance is legal. First, a court must examine the statute to determine whether the communication at issue falls within the scope of the statute. If so, the court then examines whether an exception might apply.
A two-step analysis is used to determine whether surveillance is legal. First, a court must examine the statute to determine whether the communication at issue falls within the scope of the statute. If so, the court then examines whether an exception might apply.
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 person’s 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.
Returning to David’s 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 quasi-public 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.
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