Is It Legal to Secretly Record People?
General considerations for investigators who want to record over the phone or in-person conversations
Recording conversations is a common practice in our personal and professional lives, particularly for investigators. However, the legality of such recordings can be murky, especially when intended for use in legal proceedings. According to U.S. federal law, at least one participant must know the conversation is being recorded. Yet, individual state laws introduce specific nuances that investigators must navigate to ensure compliance.
Two main types of state laws governing consent exist. You can live in a state where it’s mandatory to notify all parties of the conversation or just one, which is usually the initiator of the recording. If the initiator is not present, which can happen in the case of a listening and recording device, consent still needs to be obtained (unless there is an exception from a state that allows recording in public settings or to collect evidence of a crime). This notification can be delivered verbally, in writing, or through audible beep tones during the call.
State law exceptions can affect how consent needs to be obtained. Nine states require to notify all parties of the conversation without exceptions – California, Florida, Maryland, Montana, New Hampshire, Pennsylvania, Washington, Massachusetts, and Illinois. Michigan will require two-party consent if the recording person isn’t a part of the conversation. South Dakota has a similar requirement but allows one participant’s consent.
Some states have conditional recording laws. Connecticut and Nevada require all parties to be notified in electronic recordings, but in-person conversations allow only one-party consent. Oregon requires one-party consent for electronic communication and two-party consent for in-person recordings.
Hawaii requires one-party consent unless the recording happens in a private place. Rhode Island doesn’t require consent when privacy is not expected. Vermont doesn’t have a special law so it’s considered a one-party state.
Interstate communication has requirements too. For example, if you call from a one-party state to someone in California, which is a two-party state, you have to comply with the laws of California. Other states apply the law of the physical location of the recording device. A general recommendation for interstate communication is to receive consent from everyone participating in the recording.
Breaking a recording law can be considered a misdemeanor in some states or a felony in others. Violators can also become subjects of civil liability. Recordings made with a violation of law are also inadmissible in a court, so investigators need to get legal advice before engaging in the act.