Wiretapping and Eavesdropping: A Legal Primer

When most people hear the term “communication interception,” they think of government agencies tapping phones and installing bugging devices to record everything that’s said in a person’s home/office. However, this term is more broad and situational. It can refer to anyone recording regular phone calls between two or more people, and even face-to-face public and private conversations.The first form of communication interception that we’re going to discuss is phone call interception (wiretapping), which means recording someone’s call in which you are or are not an active participant.

The U.S. federal law states that it is legal to record a phone call if at least one party or participant in the conversation knows that the call is being recorded. This means that you can record your own phone call, or someone else’s phone call if you have consent from at least one party. However, there are 12 states that require both parties or participants to know that the conversation is being recorded.

The states that require two-party consent are:

  • California
  • Connecticut
  • Delaware
  • Florida
  • Illinois
  • Maryland
  • Massachusetts
  • Michigan
  • Montana
  • New Hampshire
  • Pennsylvania
  • Washington

All other states fall under single-party laws.

The one party consent law does have an exception that would make recording illegal, and this exception is when the recording is done for a criminal or “tortious” purpose, like the intent to blackmail or threaten someone. But keep in mind that while secret recording for criminal or tortious purposes is illegal, a secret recording is not punishable simply because it might embarrass a participant in the conversation.

Also, when making calls between states with different laws, it is difficult to say which state’s law will prevail. Just to be safe you should get all participants’ consent before recording the call.

Another question that most people have is if they can record the phone conversation of their spouse or children in a domestic case. The answer here is no, and doing so would be considered illegal, as you would be breaking federal and state wiretapping laws. It does not matter if the person recording the conversation owns the phone and pays the bill, as the law only takes participating parties’ consent into consideration.

Next we’re going to discuss eavesdropping laws and recording in-person conversations.

The first thing you have to keep in mind when deciding if it is legal to record the conversation is if it is considered private. Phone calls are usually considered to be private and would require one or all party consent. In-person conversations in public places that can be naturally overheard without any special device are not considered to be private and can be legally recorded in most states. However, if the conversation was discussed in a private space, like an office or a bedroom, it would be considered private and would require consent (one or all party depending on the state) before recording.

An example of a situation where you can legally record would be if you were in front of a grocery store and people were having a loud conversation. In this case they would not have a reasonable expectation of privacy and you would be free to record them as you wish.

There are some states like Connecticut, however, where unless you are part of the face-to-face conversation, it is still illegal to record it, no mater how easy it is to overhear. Just to be safe you should look up you state’s local laws or consult an attorney.

One thing that really differentiates in-person conversations from phone calls is having a recording device out in the open during the interaction. By taking out an object that is clearly a recording device and making it obvious to all participating parties that it is recording, you are legally allowed to record the conversation. By continuing the conversation after they are aware that you started recording, the participating parties give their consent, making the recording legal.

In summation, before recording a phone call you need either one or all parties’ consent, depending on the state’s laws. And for in-person conversations you need to know if the conversation is private or not. Private conversations are the same as phone calls, where you need one or all parties’ consent; and if it is a conversation that can be naturally overheard in a public place, then it is usually legal to record.

Getting arrested because you’re ill-informed isn’t an excuse. Always be on the safe side and know the exact laws for your state. If there is any doubt, you should always consult with an attorney before recording any conversations.

(Via RCFP and Cit Media Law) / (Image by B Rosen, licensed under Creative Commons)

About the author  ⁄ BrickHouse Security

BrickHouse Security is the industry's premier supplier of security and surveillance solutions. As a recognized authority in GPS tracking, hidden cameras, cell phone/PC monitoring, video surveillance and counter surveillance, we help our customers use technology to get the clarity they need. We proudly serve consumers, businesses of all sizes and the law enforcement community. When you need to know, BrickHouse has the answers.

  • http://www.facebook.com/profile.php?id=100003407143291 Asoma

    - I agree the prices are just plain silly James, but heofpully the new 3GS version will help drive down the cost of the current 3G version in the UK, certainly thats what I have seen from the USA prices they have announced, although we always seem to pay a premium over here don’t we :-/ Will have to wait and see what the UK prices come out at.