Can I Legally Record a Conversation Between Myself and Another Person?

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? Unlawfully recording a conversation can result in criminal charges, civil penalties, or both.

Is It Illegal to Record a Conversation Without Consent?

The federal government and states all have their own laws governing the legality of secretly recording oral, telephonic, and other communications. Generally, these laws prohibit recording a conversation unless at least one party consents. Some states require all parties to consent.

The law that applies depends on where the conversation occurs. For in-person conversations, this determination is generally an easy one—it's the state where the parties are located. Laws get more complicated when conversations involve parties located in different states. Typically, the state law with the strictest standards (the most privacy protections) will prevail.

A state's law, however, won't apply if it doesn't provide the minimum protections afforded under federal law. If a state law provides less protection than federal law, federal law preempts (takes the place of) state law.

What Is the Federal Law on Recording Conversations?

Congress enacted the Wiretap Act as part of the Omnibus Crime Control and Safe Streets Act of 1968, in response to public outcry about the government's covert recording of political activist groups' activities.

One-Party Consent Under Federal Law

The Federal Wiretap Act makes it illegal for any person to secretly record an oral, telephonic, or electronic communication that other parties to the communication reasonably expect to be private, unless one party consents to the recording. In practice, this means that recording a conversation is legal if the person making the recording is a party to the conversation (and has effectively consented to the recording). The law also permits a person authorized by law or court order (such as a warrant) to secretly record a conversation.

Reasonable Expectation of Privacy

The Wiretap Act 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? For instance, a person who is bragging openly at a party about cheating a friend in a business deal has not treated the conversation as private. This person likely can’t object to the introduction of a recording of this admission as evidence in a lawsuit filed by his ex-friend.

What Counts as Consent?

As noted above, federal law permits one-party consent to record a conversation. That consent can be made implicitly when one party to the communication is recording another. Consent can also be explicit, like when a reporter's source agrees to speak "on the record" for a news story.

It’s also generally valid if the party knows they are being recorded. For instance, a consumer who stays on a "help" line after receiving the obligatory notice that "this conversation may be recorded for quality assurance purposes" has consented.

(18 U.S.C. §§ 2510, 2511 (2026).)

What Are the Federal Penalties for Illegally Recording a Conversation?

A person who violates the Federal Wiretap Act faces a possible sentence of up to five years in prison. The judge can also order an injunction to stop future violations. If the person doesn’t abide by this court order, they can face a $500 civil fine for each violation.

The injured party can also file a civil action against the offending party for monetary damages, an injunction, and reasonable attorneys' fees and litigation costs.

(18 U.S.C. §§ 2511, 2520 (2026).)

What Are the State Laws on Recording Conversations?

In most instances, state wiretap laws cover secret recordings of conversations by private citizens. The Federal Wiretap Act generally comes into play only if a state’s laws don’t meet the minimum privacy standards set in the federal law. (This situation has happened—usually when a state doesn’t update its law to reflect federal law changes.)

One-Party Consent States

The majority of the states follow the federal one-party consent rule, as long as that party is in the conversation. These states include Alabama, Alaska, Arizona, Arkansas, Colorado, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.

All-Party Consent States

In close to a dozen states, the law requires all parties to the conversation to consent to a recording (for most purposes). These all-party consent states include California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington. Michigan generally falls on the all-party consent list, with an exception that allows a participant to record their own conversations (without others' consent).

Multiple Consent Standards

A few states use different standards depending on whether the conversation occurs in person or over a phone line or electronic communication device. For instance, an in-person conversation might require one-party consent and a phone conversation all-party consent or vice versa. Connecticut, Missouri, Nevada, and Oregon have different rules for different situations. Hawaii and Maine also have special rules for certain private conversations.

What Happens If the Recorded Parties Are in Different States?

If parties to the conversation are in different states, the best practice is to use the state’s law with the strictest standards. While a court ruling might go the other way, it’s less risky to abide by the strictest law in terms of protecting privacy rights. An all-party consent law, for example, would be stricter than a one-party consent law.

What Are the State Penalties for Illegal Recordings?

A person who violates a state law prohibiting secret recording of conversations can face the penalty or penalties prescribed by that state. Those penalties may include criminal charges, injunctions, and civil damages.

Virtually every state makes a wiretap violation a crime. For example, a person violating California's law faces a misdemeanor or felony conviction (called a wobbler). Many states impose felony penalties for wiretap violations, including Illinois, New York, and Texas.

Most states also allow the injured party to file a civil lawsuit for damages. These damages can include actual damages, as well as statutory damages (such as $100 per day), punitive damages, and attorneys' fees.

(Cal. Penal Code §§ 631, 632; 720 Ill. Comp. Stat 5/14-2, 5/14-3, 5/14-4; N.Y. Penal Law §§ 250.00, 250.05; Tex. Penal Code § 16.02 (2026).)

Exceptions to Recording Consent Laws

Federal and state wiretap laws make some exceptions that allow recordings without consent, although only in limited circumstances. These exceptions typically apply to recordings made by:

• law enforcement when they have court order or in emergency situations
• communication service providers handling certain business needs
• emergency services personnel, and
• employers monitoring for security and compliance reasons.

Organizations should consult with legal counsel to ensure their recording practices comply with all applicable laws.

What to Know Before Recording a Conversation

Before recording conversations, take the time to:

• identify the participants' locations
• determine which law applies, and
• understand what the law requires in terms of notice and consent.

Just like the federal law, state laws may impose privacy requirements for a law’s protections to kick in and define what type of notice counts as consent. For instance, a few states require explicit or affirmative consent, so knowledge alone wouldn’t suffice for consent.

The safest option is to err on the side of disclosing the recording and seeking explicit consent from all participants. Documentation of the recorded conversation, including date, time, notification of recording, and consent from participants, can be invaluable if questions arise.

State laws vary quite a bit on these matters, and a review of state statutes and case law (court decisions) may be necessary.

Getting Legal Help

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.