Tempted to secretly record that harassing boss or your vindictive ex the next time they launch into a verbal tirade against you? Incontrovertible evidence is worth a lot but what is the cost? That depends on where you’re standing, literally, when you make that recording.
Federal and State Recording Laws
The U.S. and the states have their own laws governing the legality of surreptitious recording of oral, telephonic, and other communications. A person’s secret taping of a conversation is governed by the laws of the state in which she is making the recording unless the federal law is more protective of privacy.
The Federal Wiretap Act
In response to the public outcry about the government’s covert recording of the activities of political activist groups in the 1960s, Congress enacted the Wiretap Act as part of the Omnibus Crime Control and Safe Streets Act of 1968. (18 U.S.C. § 2510.)
Illegal Recording Under the Wiretap Act
Under the federal Wiretap Act, it is illegal for any person to secretly record an oral, telephonic, or electronic communication that other parties to the communication reasonably expect to be private. (18 U.S.C. § 2511.)
There are two huge exceptions built into this law that have the capacity to gut it of effect. A recording otherwise in violation of the Wiretap Act is legal if:
- one person to the conversation consents to the recording, or
- the person making the secret recording is authorized by law to do.
(18 U.S.C. § 2511.) In practice, this means that recording a conversation is legal if the person making the recording is a party to the conversation (and, therefore, consents to the recording). This creates a rather large loop-hole.
Reasonable Expectation of Privacy
The Wiretap Act (as well as each state law governing secret recording of conversations) protects only those communications that the individuals being secretly recorded reasonably expect to be private. 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.
Consent to Recording
The federal Wiretap Act and most state laws governing secret recordings (see below) allow covert taping where one party (or more, in some states) consents. As noted above, the consent can be made implicitly when one party to the communication is recording another; it can also be made when a consumer stays on a “help” line after receiving the obligatory “this conversation may be recorded for quality assurance purposes.” Or, consent can be explicit, as when a reporter’s source agrees to speak “on the record” for a news story.
Preemption of Less Protective State Laws
The federal Wiretap Act preempts all state laws that are less protective of privacy than it is. Thus, any state law that would allow secret recording of any communication by anyone and without the consent of any party would be void and preempted by the federal law.
More Protective State Laws Not Preempted
But, state laws that afford greater privacy protection to citizens than the Wiretap Act are not preempted by the federal law and their provisions will be enforced.
In twelve states, no person may record a private communication without the consent of every party to that communication. Thus, no surreptitious recording is allowed (with exceptions for law enforcement officials who have obtained warrants to make such recordings). The states with these laws are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.
Anyone who violates federal or state recording laws may face jail time, a fine, or even an order to pay damages in a civil lawsuit.
A person who violates the federal Wiretap Act faces a possible sentence of up to five years in prison, a fine of $500, or both. (18 U.S.C. § 2511.)
A person who violates a state law prohibiting secret recording of conversations will face the penalty prescribed by that law. Virtually every state imposes some criminal penalty for violations of its secret recording law. For example, a person violating California’s law faces a possible misdemeanor conviction, a one-year prison sentence, and a $2,500 fine. (Cal. Penal Code § 631.)
In most states where taping someone who hasn't consented to the recording is illegal, the recorded person can sue the individual doing the recording. Damages are available to a person who wins such a civil lawsuit.
See a Lawyer
Secret recordings carry real risks, and the repercussions vary from state to state. Consult a criminal defense lawyer in your state to find out what the law is and what the possible penalties are for violations before you consider secretly recording any conversations.