Recording Phone Calls and Conversations

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Recording Phone Calls and Conversations

Introduction

Recording telephone calls or in-person conversations (including by recording video that captures sound): there are federal and state wiretapping laws applicable to expose to the risk of criminal prosecution and potentially give an injured party a civil claim for money damages against the other.

In most countries and U.S. states is almost always illegal to record a phone call or private conversation to which you are not a party, do not have consent from at least one party, and could not naturally overhear. In addition, those countries do not permit you to surreptitiously place a bug or recording device on a person or telephone to secretly record a conversation between two people who have not consented.

Most countries (including U.S. Federal law and most state statutes) also make disclosing the contents of an illegally intercepted telephone call illegal.

One-party consent law

As in some other countries, in the United States, Federal law permits (the so-called “one-party consent”law) recording telephone calls and in-person conversations with the consent of at least one of the parties (See 18 U.S.C. 2511(2)(d)). Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation. Furthermore, if you are not a party to the conversation, a “one-party consent”law will allow you to record the conversation or phone call so long as your source consents and has full knowledge that the communication will be recorded.

See below the list of U.S. states (and the District of Columbia) that have adopted “one-party consent”laws.

“Two-party consent”laws

Several countries (and serveral U.S. states) require the consent of every party to a telephone call or conversation in order to make the recording lawful. Although they are referred to as “two-party consent”laws, consent must be obtained from every party to a phone call or conversation if it involves more than two people. In some of these countries and states, it might be enough if all parties to the call or conversation know that you are recording and proceed with the communication anyway, even if they do not voice explicit consent.

See below the list of U.S. states that have adopted “two-party consent”laws.

Telephone recording Legislations

As said above, several countries (for example, Spanish and Canadian legislation) require that at least one party in the phone call be aware of the recording of telephone conversations.

Telephone recording Laws in the United Kingdom

The interception, recording and monitoring of telephone calls is governed by a number of different pieces of UK legislation. The requirements of all relevant legislation must be complied with. The main ones are:

Regulation of Investigatory Powers Act 2000 (“RIPA”)
Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 (“LBP Regulations”)
Data Protection Act 1998
Telecommunications (Data Protection and Privacy) Regulations 1999
Human Rights Act 1998

Recording Telephone Conversations of the own home (telephone)

In the United Kingdom, users can record telephone conversations on their own home teephone. The relevant law, RIPA, does not prohibit individuals from recording their own communications provided that the recording is for their own use. Recording or monitoring are only prohibited where some of the contents of the communication – which can be a phone conversation or an e-mail – are made available to a third party, ie someone who was neither the caller or sender nor the intended recipient of the original communication.

Under RIPA it is a tort to record or monitor a communication unlawfully. This means that if an user thinks he/she has suffered from unlawful interception of his/her phone calls or e-mails, he/she has the right to seek redress by taking civil action against the offender in the UK courts.

The user do not have to let people know that he/she intend to record their telephone conversations with another person, provided the user is not intending to make the contents of the communication available to a third party. If the user is intending to make the contents of the communication available to a third party, then the user will need the consent of the person he/she isy recording.

LBP Regulations

Businesses and organisations are able to record or monitor private phone calls or e-mail correspondence with them, but only in a limited set of circumstances relevant for that business which have been defined by the LBP Regulations. The main ones are:

to provide evidence of a business transaction
to ensure that a business complies with regulatory procedures
to see that quality standards or targets are being met in the interests of national security
to prevent or detect crime to investigate the unauthorised use of a telecom system
to secure the effective operation of the telecom system.

In addition, businesses can monitor, but not record, phone calls or e-mails that have been received to see whether they are relevant to the business (ie open an employee’s voicemail or mailbox systems while they are away to see if there are any business communications stored there). For further information see the Encyclopedia of Law entry about the LBP Regulations.

However any interception of employees’ communications must be proportionate and in accordance with Data Protection principles. The Information Commissioner has published a Data Protection Code on “Monitoring at Work”available on its website. The Code is designed to help employers comply with the legal requirements of Data Protection Act 1988. Any enforcement action would be based on a failure to meet the requirements of the act – however relevant parts of the Code are likely to be cited in connection with any enforcement action relating to the processing of personal information in the employment context. Accordingly this Code of Practice and the Data Protection Act must also be considered by any business before it intercepts employees’ communications.

Businesses do not have to tell people if they are going to record or monitor the phone calls or e-mails, as long as the recording or monitoring is done for one of the above purposes the only obligation on businesses is to inform their own employees. If businesses want to record for any other purpose, such as market research, they will have to obtain the consent of the person.

Telephone recording in the United States

Covertly recording phone conversations in the United States

One party consent means that one party to the conversation must have knowledge and give consent to the recording. Two party or all party consent means that every party to the conversation must have knowledge and give consent to the recording.

State laws recording telephone conversations:

There are twelve states that require all party consent. They are:

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

There are 38 states that permit one party consent. They are:

Alaska
Arkansas
Colorado
District of Columbia
Georgia
Hawaii
Idaho
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
West Virginia
Wisconsin
Wyoming

Note: a Summary of Consent Requirements for Taping Telephone Conversations is found in https://www.aapsonline.org/judicial/telephone.htm.

Telephone Recording: FCC rules

The Federal Communications Commission (FCC) has adopted rules regarding the manner in which telephone companies may record wireline telephone conversations. The FCC currently has no rules regarding recording of telephone conversations by individuals, but federal and many state laws may prohibit this practice.
FCC’s Rules Regarding Telephone Company Recording of Interstate or International Wireline Telephone Conversations

The FCC protects the privacy of telephone conversations by requiring notification before a recording device is used to record interstate (between different states) or international wireline calls. Interstate or international wireline conversations may not be recorded unless the use of the recording device is:

preceded by verbal or written consent of all parties to the telephone conversation; or
preceded by verbal notification that is recorded at the beginning, and as part of the call, by the recording party; or
accompanied by an automatic tone warning device, sometimes called a “beep tone,” that automatically produces a distinct signal that is repeated at regular intervals during the course of the telephone conversation when the recording device is in use.

Also, a recording device can only be used if it can be physically connected to and disconnected from the telephone line or if it can be switched on and off.

If the citizen thinks his/hery wireline telephone conversations are being recorded in violation of these rules, he/she can file a complaint with the FCC.

Recording Intrastate Wireline Conversations

Questions or complaints about recording intrastate (within the same state) wireline telephone conversations should be addressed to your state public service commission. Your public service commission should be able to tell you whether such recording is legal or illegal and how it is regulated. Contact information for your state public service commission can be found at www.naruc.org or in the blue pages or government section of your local telephone directory.
Wiretapping Wireline Phones

Wiretapping is regulated by both the state and federal governments and, if illegal, can be punished by criminal sanctions. For more information concerning your state wiretapping laws, contact your state Attorney General’s office. Look for contact information in the blue pages or government section of your local telephone directory.

For information concerning federal wiretapping laws, contact the Federal Bureau of Investigation (FBI)

VoIP Call-Recording

This is now questioned with VoIP call-recording, whereby you can record and save your VoIP calls and conversations.

Interception and Divulgence of Radio Communications

Interception and divulgence of radio communications is governed, in the United States, by many jurisdictions, including federal and state. In the U.S., some federal and state laws make intercepting and divulging radio communications unlawful and may subject the violator to severe criminal penalties. The Department of Justice has the authority to prosecute violators of these laws.

Unauthorized Publications of Communications

In the United States, the FCC has the authority to interpret Section 705 of the Communications Act “Unauthorized Publication of Communications.” This section generally does not prohibit the mere interception of radio communications, although merely intercepting radio communications may violate other federal or state laws.

Section 705 prohibits a person from using an intercepted radio communication for his or her own benefit. A more recent Supreme Court decision, however, questions the ability of the government to regulate the disclosure of legally-obtained radio communications, and this area of the law remains unsettled.

In addition, the courts have determined that the act of viewing a transmission such as a pay television signal that the viewer was not authorized to receive is a “publication” and this violates Section 705. Section 705 also prohibits the interception of satellite cable programming for private home viewing if the programming is either encrypted (i.e., scrambled) or is not encrypted, but is sold through a marketing system. To legally intercept such a transmission, you must have authorization from the programming provider.

Several Questions

Is recording a phone call illegal?

What about covertly recording phone conversations?

Can you legally record a phone conversation?

See Also

LLSDC’s Legislative Source Book Title Index by Keyword
Robinson List
Treaty on Open Skies 9
International Covenant on Civil and Political Rights 6

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