The answer varies depending, mainly, on whether the conversation was private, where the conversation occurred and whether the participants consented to the recording.
Only Private Conversations Are Protected
Conversations are protected if the speaker or participants have a “reasonable expectation of privacy.”
So if you come upon two people standing on soap boxes on the corner of two busy streets loudly debating whether the world will end next week or next month, you can lawfully take out your recording device and record some of their pearls of wisdom. That is because they obviously do not intend their conversation to be private.
On the other hand, if you are in a private meeting with a business associate behind closed doors, the associate probably expects the conversation to be private.
Sometimes, what constitutes an expectation of privacy can be difficult to determine. In one Maryland case, an apartment dweller recorded his neighbors’ conversation, which he could hear through the 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.
One-Party And Two-Party Consent Laws
Federal law [18 U.S.C. 2511(2)(d)] and the law of 38 states allow conversations to be recorded if any party to the conversation consents. These are often referred to as “one-party consent” laws.
In those states, you can lawfully record a conversation if you are a participant. If you are not a participant, you can still record the conversation if one of the participants consents. But you cannot record the conversation if you are not a participant and none of the participants consents.
Twelve states have what is commonly called a “two-party consent” law. Actually, it would be more accurate to describe them as “all-party consent” laws since they require the consent of all participants before you can record a conversation, in person or on the phone.
The 12 states believed to have two-party consent laws are: California, Connecticut, Delaware, Florida, Massachusetts, Maryland, Michigan, Montana, New Hampshire, Pennsylvania and Washington.
As you an imagine, determining which law applies can get tricky if you are in a phone conversation with a number of other people in different states. Here, the general rule is to apply the law of the most restrictive jurisdiction.
What Are The Penalties For Violating These Laws?
Regardless of whether state or federal law governs the situation, it is almost always illegal to record a phone call or private conversation to which you are not a party, you do not have consent from at least one party and you could not naturally overhear. In addition, federal and many state laws do not permit you to surreptitiously place a bug or recording device on a person or telephone, in a home, office or restaurant to secretly record a conversation between two people who have not consented.
If you violate any of these laws, you could be criminally prosecuted and subject to a lawsuit for money damages by the people you unlawfully recorded.
**These questions and answers are designed to provide helpful information that can be read quickly. They are neither a full explanation of the subject nor legal advice. To learn more, and to receive legal advice on which you can rely, contact me or another lawyer.