Many people inquire as to the rules and regulations regarding recording telephone calls and in-person discussions. Can I do it without telling the other person? Do I have to tell the other person? How do I have to tell the other person? Here is the basic information regarding recording telephone calls and in-person conversations.
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 also adopted statutes addressing “wiretapping” that are based upon the federal law. States have gone a step further, expanding their laws to include in-person conversations. 38 states and the District of Columbia permit people to record conversations to which they are a party without informing the other party (or parties) that they are doing so. We call these states/territories “one-party states.” Provided you are a party to the conversation, it is absolutely legal for you to record it. (Nevada also has a one-party consent statute, but the state Supreme Court has interpreted it as an all-party rule.)
12 states require the consent of all parties to a conversation in all but the fewest circumstances. Those states include: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. One caveat! These states are often referred to as “two-party states.” This is not completely true. If more than two people are involved in the conversation, all parties must be informed. Therefore, they are more accurately described as “two-or-more party states.”
Regardless of the state, it is almost always illegal to record a conversation to which you are not a participant, have not obtained the consent to tape (from all parties), and could not normally overhear.
Federal law and most state laws also make it illegal to disclose the contents of an illegally intercepted call or communication.
At least 24 states have laws outlawing certain uses of hidden cameras in private places, although many of the laws are specifically limited to attempts to record persons in the nude (or any of various states of undress). Also, many of the statutes concern unattended hidden cameras, not cameras hidden on a person engaged in a conversation. Further, regardless of whether a state has a criminal law regarding cameras, undercover recording in a private place can prompt civil lawsuits for invasion of privacy.
I have called the FCC (Federal Communications Commission) directly and asked them what constitutes consent and when. I was told that in those “two-or-more party states” – one must disclose at the outset of the phone discussion that you are recording the conversation. If the other party fails to clearly acknowledge granting you permission to tape record the conversation, you are required to turn the recorder off, lest you be in violation of state and federal laws regarding wiretapping.
IMPORTANT NOTE: For inter-state telephone conversations, the government defaults to the state with the more strict regulations! So, if you’re in a one-party state and the other person is in a two-or-more party state, the law that will apply is the two-or-more party law. You cannot record them without their consent just because you are in a one-party state when they’re in a two-or-more party state.