Notice - Before reading Call Recording and the Law

This guide is meant as a general introduction to electronic recording and its implications. This information does not constitute legal advice and we recommend you contact a lawyer within your state when you have a specific question or concern.

For Mexico, please read: Call Recording and the Law - The Country of Mexico

General Overview

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. A majority of the states and territories have adopted wiretapping statutes based on the federal law. Thirty-eight states and the District of Columbia 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.

Twelve states require, under most circumstances, the consent of all parties to a conversation. 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. Florida has an exception when both parties are businesses.

Call Recording and Federal Law

It is permissible to intercept and record a telephone conversation if one or both of the parties to the call consents. Consent means authorization by only one participant in the call; single-party consent is provided for by specific statutory exemption under federal law. 18 U.S.C. Sec. 2511(2)(a (i), b, and d).

2)(a)(i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service,whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

This is also referred to as 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. Most states recognize the recording of phone calls by businesses as part of the business operation. A case was tried on this as wiretapping and it went all the way to the S.Court. The court ruled that wiretapping was the surrepticious (gad- what spelling) recording of a phone call (simply put) for possible illegal purposes, etc., while the recording of a phone call by a business was a normal course of events in this day of rapid communications, etc.

2)(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

2)(d) It shall not be unlawful under this chapter for a person not acting under color of 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 tortious act in violation of the Constitution or laws of the United States or of any State.

Call Recording and State Law

As to the individual states, each can be grouped in one of two categories. Specific statute citations for each state follow:

A further explication of the relevant law is as follows:

A complete state-by-state set of regulations regarding telephone call recording may be obtained in the following report: www.rcfp.org/taping/states.html

Recording Telephone Calls with Parties in Different Jurisdictions

Typically Federal law overrides state law when the conversation is between parties who are in different states, although it is unsettled whether a court will hold in a given case that federal law "pre-empts" state law. Either state may choose to enforce its own laws.

References

1. 18 U.S.C. § 2510 and "The Electronic Communications Privacy Act of 1986", amending 18 U.S.C. § 2510
2. "Recording Telephone Conversations" The Reporters Committee for Freedom of the Press: A Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and D.C. www.rcfp.org/taping/
3. Pingram Software - www.callcorder.com/faq.htm
4. Telephone Tape Recording Law. Ralph Thomas. National Association Of Investigative Specialists. www.pimall.com/nais/n.tel.tape.law.html