LAWS ON RECORDING CONVERSATIONS IN ALL 50 STATES

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1 MATTHIESEN, WICKERT & LEHRER, S.C E. Sumner Street, P.O. Box , Hartford, WI Phone: (262) Fax: (262) LAWS ON RECORDING CONVERSATIONS IN ALL 50 STATES The big issue when it comes to recording someone is whether or not the jurisdiction you are in requires that you get the consent of the person or persons being recorded. This begs the question of which jurisdiction governs when you are talking to a person in another state. Some states require the consent of all parties to the conversation, while others require only the consent of one party. It is not always clear whether federal or state law applies, and if state law applies which of the two (or more) relevant state laws controls. A good rule of thumb is that the law of the jurisdiction in which the recording device is located will apply. Some jurisdictions, however, take a different approach when addressing this issue and apply the law of the state in which the person being recorded is located. Therefore, when recording a call with parties in multiple states, it is best to comply with the strictest laws that may apply or get the consent of all parties. It is generally legal to record a conversation where all the parties to it consent. One-Party Consent If the consent of one party is required, you can record a conversation if you re a party to the conversation. If you re not a party to the conversation, you can record a conversation or phone call provided one party consents to it after having full knowledge and notice that the conversation will be recorded. Under Federal law, 18 U.S.C. 2511(2)(d) requires only that one party give consent. In addition to this Federal statute, thirty-eight (38) states and the District of Columbia have adopted a one-party consent requirement. Nevada has a one-party consent law, but Nevada s Supreme Court has interpreted it as an all-party consent law. All-Party Consent Twelve (12) states require the consent of everybody involved in a conversation or phone call before the conversation can be recorded. Those states are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. These laws are sometimes referred to as two-party consent laws but, technically, require that all parties to a conversation must give consent before the conversation can be recorded. Consent What constitutes consent is also an issue of contention when you are considering recording a conversation. In some states, consent is given if the parties to the call are clearly notified that the conversation will be recorded, and they engage in the conversation anyway. Their Work Product of Matthiesen, Wickert & Lehrer, S.C. 1 LAST UPDATED 1/22/16

2 consent is implied. For example, we have all experienced calling a customer service department only to hear a recorded voice warning, This call may be recorded for quality assurance or training purposes. It is usually a good practice for practitioners to let the witness know they are recording the call in order to accurately recall and commemorate the testimony being given such as during the taking of a witness statement. STATE CONSENT AUTHORITY EXPLANATION/ADDITIONAL INFORMATION Federal 18 USC 2511(2)(d) Alabama Ala. Code 13A-11-30(1) and 13A 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. Alabama statute defines eavesdropping as to overhear, record, amplify or transmit any part of the private communication of others without the consent of at least one of the persons engaged in the Alaska Alaska Stat. Ann (a); Alaska Stat. Ann (a)(1); Palmer v. Alaska, 604 P.2d 1106 (Alaska 1979). Alaska law prohibits the use of an electronic device to hear or records private conversations with the consent of at least one party to the conversation. Alaska s highest court has held that the eavesdropping statute was intended to prohibit thirdparty inception of communications only; does not apply to participants in a conversation. Arizona Ariz. Rev. Stat. Ann (9); (5)(c) An individual not involved in or present during a communication must have the consent of at least one party to record an electronic or oral Arizona also permits a telephone subscriber (the person who orders the phone service and whose name is on the bill) to tape (intercept) calls without being a party to the conversation and without requiring any notification to any parties to the call. Arkansas Ark. Code Ann An individual must have the consent of at least one party to a conversation, whether it is in person or electronic. California Cal. Penal Code 632(a)-(d); Kearney v. Salomon Smith Barney Inc., 39 Cal.4 th 95 (Cal. 2006); Kight v. CashCall, Inc., 200 Cal. App. 4 th 1377 (2011); Cal. Pub. Util. Code Gen. Order 107-B(II)(A); Air Transp. Ass n of Am. v. Pub. Utilities Comm'n of State of Cal., 833 F.2d 200 (9 th Cir. 1987). California has very specific laws regulating the recording of oral and electronic communications. All parties must give their consent to be recorded. However, The California Supreme Court has ruled that if a caller in a one-party state records a conversation with someone in California, that one-party state caller is subject to the stricter of the laws and must have consent from all callers. Although California is a twoparty state, it is also legal to record a conversation if an audible beep is included on the recorder and for the parties to hear. Work Product of Matthiesen, Wickert & Lehrer, S.C. 2 LAST UPDATED 1/22/16

3 Colorado Mixed Colo. Rev. Stat. Ann (1) An individual not involved in or present during a communication must have the consent of at least one party to record an electronic or oral Connecticut Conn. Gen. Stat. 53a-187, -89; Conn. Gen. Stat. Ann d Connecticut requires that at least one party must consent to the recording of an inperson communication and all parties must consent to the recording of a telephonic conversation. The consent should be given prior to the communication and should contain a verbal or written warning that said communication is going to be recorded. Delaware Del. Code Ann. tit. 11, 2402(c)(4) Del. Code Ann. tit. 11, 1335(a)(4); U.S. v. Vespe, 389 F. Supp (1975). State privacy laws state that all parties must consent to the recording of oral or electronic conversations. U.S. v. Vespe holds that even under the privacy laws an individual has the right to record their own conversations. Section 1335 says it is a class G felony to intercept without the consent of all parties thereto a message by telephone or other means of communication, except as authorized by law. Section 2402 provides that it is authorized by law for a person communication where the person is a party to the communication or where one of the parties to the communication has given prior consent, unless the communication is intercepted for the purpose of a criminal act. District of Columbia D.C. Code (b)(3) An individual may record or disclose the contents of an electronic or oral communication if they are a party to said communication or it they have received prior consent from one of the parties. Florida Fla. Stat. Ann (3)(d) All parties must consent to the recording and or disclosure of the contents of and electronic, oral or wire Georgia Ga. Code Ann (a); Ga. Code Ann An individual has the right to record or disclose the contents of an electronic, oral or wire communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. Hawaii Haw. Rev. Stat (3)(A) Idaho Idaho Code Ann (2)(d) An individual has the right to record or disclose the contents of an electronic, oral or wire communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. An individual has the right to record or disclose the contents of an electronic, oral or wire communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. Illinois 720 I.L.C.S. 5/14-2(a); People v. Beardsley, 503 N.E.2d 346 (Ill. 1986). All parties must consent to the recording of telephonic, electronic or in person oral conversation. Illinois courts have ruled that eavesdropping only applies to conversations that the party otherwise would not have been able to hear, thereby effectively making it a one-party consent state. However, there still appears to be confusion and debate over the law. Work Product of Matthiesen, Wickert & Lehrer, S.C. 3 LAST UPDATED 1/22/16

4 Indiana Ind. Code Ann An individual has the right to record or disclose the contents of an electronic or telephonic communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. Iowa Iowa Code Ann. 808B.2 (2)(c); Iowa Code Ann An individual has the right to record or disclose the contents of an oral, electronic or telephonic communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. Kansas Kan. Stat. Ann (1); Kan. Stat. Ann (4) Kansas law bars the interception, recording and or disclosure of any oral or telephonic communication by the means of an electronic recording device without the consent of at least one party or if they are a party to said Kentucky Ky. Rev. Stat. Ann ; Ky. Rev. Stat. Ann Kentucky law bars the interception, recording and or disclosure of any oral or telephonic communication by the means of an electronic recording device without the consent of at least one party or if they are a party to said Louisiana La. Rev. Stat. Ann. 15:1303(c)(4) Maine Me. Rev. Stat. Ann. tit. 15, 710 The Electric Surveillance Act bars the inception, recording or disclosure of and oral or telephonic communication by the means of an electronic recording device without the consent of at least one party or if they are a party to said Maine law bars the interception, recording and or disclosure of any oral or telephonic communication by the means of an electronic recording device without the consent of at least one party or if they are a party to said The Wiretapping and Electronic Surveillance Act holds that it is unlawful to: (1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; Maryland Md. Code Ann., Cts. & Jud. Proc (c)(3) (2) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or (3) Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle. However, it is lawful to intercept a wire, oral, or electronic communication where the person is a party to the communication and where all of the parties to the communication have given prior consent. Work Product of Matthiesen, Wickert & Lehrer, S.C. 4 LAST UPDATED 1/22/16

5 Massachusetts Mass. Gen. Laws Ann. ch. 272, 99(B)(4); Mass. Gen. Ann. Laws ch. 272, 99(C)(1) The recording, interception, use or disclosure of any conversation, whether in person or via wire or telephone, without the consent of all the parties is prohibited. However, telephone equipment, which is furnished to a phone company subscriber and used in the ordinary course of business, as well as office intercommunication systems used in the ordinary course of business, is excluded from the definition of unlawful interception devices. Michigan ** Mich. Comp. Laws Ann (c); Sullivan v. Gray, 117 Mich. App. 476, 324 N.W.2d 58 (1982). The recording, interception, use or disclosure of any conversation, whether in person or electronic or computer-based system, without the consent of all the parties is prohibited. **A Michigan Court of Appeals interpreted that the eavesdropping statute only applied to third-party inception of a conversation; a participant in a communication does have the right to record the same. Michigan law is often misinterpreted as requiring the consent of all parties to a conversation. Minnesota Minn. Stat. Ann. 626A.02(d) Mississippi Miss. Code. Ann (e) An individual has the right to record or disclose the contents of an oral, electronic or telephonic communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. An individual has the right to record or disclose the contents of an oral, telephonic, or other communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. Missouri Mo. Ann. Stat (2)(3) Montana Mont. Code Ann An individual has the right to record or disclose the contents of an oral or electronic communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. It is unlawful to record an in person or electronic communication without the consent of all parties except under certain circumstances namely elected or appointed public officials or public employees when the recording occurs in the performance of an official duty; individuals speaking at public meetings; and individuals given warning of or consenting to the recording. Nebraska Neb. Rev. Stat (2)(c); Neb. Rev. Stat It is also lawful for an individual to record electronic communications that are accessible to the general public. Work Product of Matthiesen, Wickert & Lehrer, S.C. 5 LAST UPDATED 1/22/16

6 Nevada Mixed Nev. Rev. Stat ; Nev. Rev. Stat ; Lane v. Allstate Ins. Co., 114 Nev. 1176, 969 P.2d 938 (1998). It is unlawful to surreptitiously record any private in-person communication without the consent of one of the parties to the conversation. The consent of all parties is required to record or disclose the content of a telephonic The Nevada Supreme Court held in Lane v. Allstate that an individual must have the consent of all parties in order to lawful record a telephonic communication even if they are a party to said New Hampshire N.H. Rev. Stat. Ann. 570-A:2(I-a); New Hampshire v. Locke, 761 A.2d 376 (N.H. 1999). It is unlawful to record or disclose the contents of any electronic or in-person communication with out the consent of all parties. The New Hampshire Supreme Court held that an individual efficaciously consented to the recording of a communication when surrounding circumstances demonstrate that they knew said communication was being recorded. New Jersey N.J. Stat. Ann. 2A:156A-4(d); N.J. Stat. Ann. 2A:156A-2 It is also lawful for an individual to record electronic communications that are accessible to the general public. New Mexico N.M. Stat. Ann (C) The reading, interrupting, taking or copying of any message, communication or report is unlawful without the consent of one of the parties to said New York N.Y. Penal Law (1); N.Y. Penal Law North Carolina N.C. Gen. Stat. Ann. 15A-287(a) North Dakota N.D. Cent. Code Ohio Ohio Rev. Code Ann (B)(4); Ohio Rev. Code Ann Work Product of Matthiesen, Wickert & Lehrer, S.C. 6 LAST UPDATED 1/22/16

7 Oklahoma Okla. Stat. Ann. tit. 13, 176.4; Okla. Stat. Ann. tit. 13, Pursuant to the Security of Communications Act, it is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication unless the person is doing so for the purpose of committing a tortious Oregon Mixed Or. Rev. Stat. Ann ; Or. Rev. Stat. Ann It is not unlawful for an individual who is a party to or has consent from a party of an electronic communication to record or disclose the contents of said It is unlawful to record an in-person communication without the consent of all parties involved. Pennsylvania 18 Pa. Cons. Stat. Ann Pa. Cons. Stat. Ann It is unlawful to record an electronic or in-person communication without the consent of all parties. Rhode Island R.I. Gen. Laws Ann ; R.I. Gen. Laws Ann An individual may also disclose the content of any electronic or inperson communication that is common knowledge or public information. South Carolina S.C. Code Ann ; S.C. Code Ann South Dakota S.D. Codified Laws 23A-35A-20; S.D. Codified Laws 23A-35A-1 Tennessee Tenn. Code Ann ; Tenn. Code Ann ; Tenn. Code Ann An individual may also disclose the content of any electronic communication that is readily accessible to the general public. Texas Tex. Penal Code Ann ; Tex. Code Crim. Proc. Ann. art An individual may also disclose the content of any electronic communication that is readily accessible to the general public. Work Product of Matthiesen, Wickert & Lehrer, S.C. 7 LAST UPDATED 1/22/16

8 Utah Utah Code Ann a-4; Utah Code Ann a-3 An individual may also disclose the content of any electronic communication that is readily accessible to the general public. Vermont No Statute or Definitive Case Law Vermont v. Geraw, 795 A.2d 1219 (Vt. 2002); Vermont v. Brooks, 601 A.2d 963 (Vt. 1991). There is no state statute that regulates the interception of telephone conversations. The case law is also lacking in this area and has made a clear indication as to if Vermont is a one-party or all-party consent state. The state s highest court has held that surreptitious electronic monitoring of communications in a person s home is an unlawful invasion of privacy. Vermont v. Geraw, 795 A.2d 1219 (Vt. 2002). On the other hand, the states highest court also has refused to find the overhearing of a conversation in a parking lot unlawful because that conversation was subject to the eyes and ears of passersby. Vermont v. Brooks, 601 A.2d 963 (Vt. 1991). Virginia Va. Code Ann Washington Wash. Rev. Code Ann West Virginia W. Va. Code Ann. 62-1D-3 It is unlawful for an individual to record and or disclose the content of any electronic of in-person communication without the consent of all parties. Wisconsin ** Wis. Stat. Ann ; Wis. Stat. Ann ; **Wis. Stat. Ann (1) **Evidence obtained as the result of the recording a communication is totally inadmissible in civil cases, except when the party is informed that the conversation is being recorded and that evidence from said recording may be used in a court of law. Wyoming Wyo. Stat. Ann Work Product of Matthiesen, Wickert & Lehrer, S.C. 8 LAST UPDATED 1/22/16

9 These materials and other materials promulgated by Matthiesen, Wickert & Lehrer, S.C. may become outdated or superseded as time goes by. If you should have questions regarding the current applicability of any topics contained in this publication or any of the publications distributed by Matthiesen, Wickert & Lehrer, S.C., please contact Gary Wickert at This publication is intended for the clients and friends of Matthiesen, Wickert & Lehrer, S.C. This information should not be construed as legal advice concerning any legal advice concerning any factual situation and representation of insurance companies and\or individuals by Matthiesen, Wickert & Lehrer, S.C. on specific facts disclosed within the attorney\client relationship. These materials should not used in lieu thereof in anyway. Work Product of Matthiesen, Wickert & Lehrer, S.C. 9 LAST UPDATED 1/22/16