November 17, 2017

Can I Legally Tape a Phone Conversation?

With today’s technology, it’s easier to do, but can you legally record a phone call without the other party knowing?

The answer is not very simple. It depends on many things, most importantly, which state you are in as different states deal with the issue in different manner. Please note that for the purpose of this article we will restrict ourselves to taping of private telephone conversation only by private individuals.

Can you legally record a phone call?

Federal Law on Recording Telephonic Conversations

Federal law states that you may record a private conversation as long as one of the parties consents to the recording of the conversion. This is known as “one-party consent”. Simply put if you are a party to the conversation, under the federal law you may record it. You do not need permission of the other party for recording.

If you are not one of the parties, you may still tape a telephone conversation legally if one of the parties of the call knows and is agreeable to you recording the call.

States Deal With Taping Telephone Conversation in Different Ways

Thirty eight states and District of Columbia follow the same logic as federal laws and permit recording with one-party consent. There are 12 states including California where you can legally tape a telephone conversation only with consent from all parties to the telephone. Though known as “two-party consent”, in reality you need consent of all the parties involved in the conversation.

Can I Legally Tape a Telephone Conversation in California?

Under California Penal Code Section 632-638 it is a crime to record a telephone call – besides several other types of private conversations – without consent of all parties to the conversation.While telephone conversations by their nature are assumed to be two party conversations, if more people are involved everyone needs to consent. There is no statutory exception of business calls like in many other states.

There is one interesting interpretation of the statute by courts in California and some other states. If one party has given explicit permission to tape a phone conversation and other parties know that the conversation is being recorded, the recording is legal as long as the other parties to the call have not specifically objected to the recording. One of the work-around employed is to include a ‘beep’ in the conversation indicating that recording is taking place.

Taping of Interstate Telephone Conversations

One major gray area in matter of taping telephone conversations is interstate phone calls. When both the parties to the call are in the same state, it is easy to understand which statute applies. What happens when the parties involved in the telephonic conversation are in different states? Federal law may apply here. It is up to courts in all the states concerned to hold “can state law be pre-empted by the federal law?”

In absence of clarity it I would advise to err on the side of caution and not record these conversations without consent of all parties.

Illegal Tape of Telephone Calls

Recording of telephonic conversation without permission of one or all parties involved, as required by the state laws, will not only subject you to criminal prosecution, you may also be liable to damages through a civil lawsuit by any one of the injured parties.

Most often one tapes telephone conversations to use it as evidence, illegal recordings are not admissible as evidence under law.

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