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.

Recording, Wiretap, and Eavesdropping Laws

The U.S. 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, will not 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.

Understanding the Federal Wiretap Act

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.

Illegal Recordings and One-Party Consent

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 (2024).)

Penalties for Violating the Federal Wiretap Act

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 (2024).)

Understanding State Wiretap Laws

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 and All-Party Consent States

The majority of the states follow the federal one-party consent rule, as long as that party is in the conversation. But, in a dozen or so states, the law requires all parties to the conversation to consent to a recording (for most purposes). These all-party consent states include California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, and Washington. Michigan might also be on the all-party consent list (courts disagree on this issue).

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.

Privacy 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.

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

Parties 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.

Penalties for Violating State Wiretap Laws

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 possible misdemeanor conviction, a one-year jail sentence, and a $2,500 fine. A subsequent conviction can result in a maximum $10,000 fine per violation (Cal. Penal Code §§ 631, 632 (2024).) State criminal penalties vary widely though. Many states impose felony penalties for wiretap violations, including Illinois, New York, and Texas. (720 Ill. Comp. Stat 5/14-2, -3, -4; N.Y. Penal Law §§ 250.00, 250.05; Tex. Penal Code § 16.02 (2024).)

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.

Talking to 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.