Trump was in the news recently for possibly taping conversations in the oval office. But can you do that? Turns out the answer is kinda complicated. If you’re thinking of secretly recording a conversation with someone, you should probably read this first.
Whether you’re recording a phone call, an in-person conversation, or trying to record the conversations of others, it all comes down to consent and how the federal government, and each state’s individual laws, define that. You might want to capture your enemy’s true nature on tape for all to hear, but here’s the deal: it’s probably illegal.
What Federal Law Says
According to the Wiretap Act of 1968 (18 U.S.C. § 2511.), it’s illegal to secretly record any oral, telephonic, or electronic communication that is reasonably expected to be private. So, for example, recording a conversation with somebody in a bedroom, with the door shut, on private property, without them knowing is technically a federal crime in the loosest sense.
There are, however, a few exceptions to this law that create some sizable loopholes. The biggest being the “one-party consent” rule that says you can record people secretly if at least one person in the conversation consents to the recording, or if the person recording is authorized by law to do it (like police with a warrant). If we go back to our bedroom recording, that means you could record your conversation as long as one person—you—consents to it. Sneaky, eh? But here’s the catch: you have to actually be a part of that conversation. If you were simply recording two other people talking while standing nearby and not saying a word, you then have no consent from any of the parties, and thus it would be illegal.
State Laws Can Preempt Federal Law
Federal law does not always reign supreme when it comes to recording conversations in the U.S., though. Twelve states have “two-party (or all-party) consent” laws, meaning you cannot record conversations unless every single person in that conversation gives consent. Those states are:
- New Hampshire
- Washington (not D.C.)
If we go back to the secret bedroom recording example, everyone in the room would need to consent to your recording if you were in one of the states listed above. But then it wouldn’t really be a secret recording anymore, would it?
While a state’s recording laws usually determine the legality of taping conversations, federal law takes precedence and preempts all state laws if it’s considered to be more protective of privacy. So even if a state did allow secret recordings without any consent, federal law would preempt that state’s laws.
Location, Location, Location
The other important aspect to consider is where you’re recording your conversation. The federal Wiretap Act promises a “reasonable expectation” of privacy, so there’s some wiggle room there. A closed-off bedroom in a private home is a reasonable place to expect privacy, so taping there can be risky, even with the power of one-party consent. If there was a party being thrown in that house, however, things could be a little different. Litigator Deborah C. Logan explains:
Whether one has a reasonable expectation of privacy in a given situation depends upon the context: Was the conversation in a public or private location? Did the individual being recorded treat the subject matter as private? A person who is bragging at a party about cheating a friend in a business deal cannot later object to the introduction of a recording of this admission as evidence in a lawsuit filed by his ex-friend.
As you can see, public locations open things up a tad. Secretly recording a conversation at a park or train station is perfectly legal if you’re in a one-party consent state and part of the conversation. But it’s still illegal in a two-party consent state.
And the definition of “safe places to record” changes on a state-by-state, case-by-case basis. Public places are almost always safe, but the definition of public place can get stretched sometimes. For example, a privately owned business office may seem like a private location, but some states, like Florida, do not “recognize an absolute right to privacy in a party’s office or place of business.” That doesn’t mean you should go secretly recording your mean boss, though, since it can still be illegal depending on where you are, what’s being said, and how it’s being said.
You also have to be careful about recording phone calls, especially if you’re talking with someone who’s in a state with different laws than yours. If you live in New York, a one-party state, and want to record a phone call with someone in California, a two-party state, you need to have their consent in addition to the consent you’ve automatically granted. If you use an app like Total Recall on Android or Tape a Call on iOS, you need to double-check that you’re not recording all calls by default and accidentally taping people illegally.
Audio and Video Aren’t the Same Thing, but Can Be Intertwined
Video recording law is different from audio recording law—and a topic for another time—but it’s important to know what those differences are. Generally speaking, you have the right to record video in all public spaces without need of consent. A public space is defined as anywhere any member of the public can legally access, so public transit facilities, parks, streets, etc. are all fair game. Recording video on private property, though, is up to the discretion of the property owner, private security, or police, but secret video recordings are illegal on all private property in some states, like California.
But here’s the most important part: recording video of a conversation in public might be legal, but recording audio along with that video is not if you’re in a two-party state. For example, recording a video of your heated conversation with a surly sales associate is illegal in all two-party states if they don’t give you permission to record them. Even in one-party states, recording video like that is dubious at best.
You do, however, have the right to record video and audio of police officers or public officials performing official duties if they are in public places. That said, you may only do so as long as you are not interfering with those activities or violating other laws in the process.
What Happens If You Get Caught
If you get busted secretly recording conversations, you could face jail time, fines, or even be sued. The federal Wiretap Act lists a possible sentence of five years in prison with a fine of $500. But that’s usually in addition to the state law’s being violated. Getting busted in California (Cal. Penal Code § 631.), for example, can net you another year in prison and a $2,500 fine. Also, most states let the non-consenting party who was recorded sue you for damages, which could be much worse than those other fines.
When In Doubt, Follow These Tips
If you’re thinking of recording a conversation, do yourself a favor and follow these tips from the Digital Media Law Project:
- Check local laws first: Always know what your state’s recording laws are before you do anything, and double check laws if you’re recording calls from out of state. Do you need everyone’s consent? Or just yours? Where are you recording?
- Know what consent looks like, and get it before you record: Consent is best when it’s verbal and part of your recording, but give a preemptive warning as well. Notify the other parties that you intend to record your interaction, wait to record until they agree, begin recording, then ask for permission again on tape.
- Don’t be sneaky: I know, you’d probably love to catch a cheater red handed, or record your boss sexually harassing you, but those types of secret recordings can seriously backfire. More often than not, the recordings are usually deemed illegal and inadmissible in court, then you get busted for breaking the law and sued by the person you were hoping to take down.
It may be a hard pill to swallow, but secret recordings are rarely a good idea, whether you’re a president or a wannabe P.I. Get consent, don’t hide your camera, microphone, or recorder, and don’t try to goad people into revealing their deepest, darkest secrets without them knowing they’re on tape or you’re going to make things worse for yourself.
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