WITH ALL EYES ON COMEY, DOES IT MAKE YOU WONDER: “when is it legal to secretly record a conversation?”

With the plethora of portable digital recording devices – hey everyone’s got one in their pocket or on their hip – this is no longer an issue for some undercover law enforcement action. Think conversations at work, spousal communications, interactions in a store – or just use your imagination.

The laws for secretly recording conversions focus on 2 situations: telephone and in person conversations. There are both federal and state wiretapping laws that apply. Violation of these laws can subject you to both criminal and civil actions.

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What’s the law?

You might be surprised. For telephone calls and other types of conversations, federal law and many state laws require only that one party to the conversation consent to the recording, and that person can be you. In such case, the other parties to the call or other conversation could be recorded without their knowledge. This is referred to as one-party consent. 38 states and the District of Columbia follow the one-party consent approach. If you are the person recording a conversation that you are a part of, then your consent is a given. However, if a third party is doing the recording, then the consent must be obtained from a participant in the conversation prior to the recording.

The following 8 states require consent of all parties to the conversation: California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.

Federal law and most state laws prohibit the disclosure of illegally recorded conversations.

See the Electronic Communications Privacy Act of 1986 (ECPA) for the federal law  and here for state laws.

Here’s the language from the ECPA:

“It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.”

What law applies?

Confusion can come when the participants on a call are in different states, so it may be unclear which state law applies or whether federal law applies. If both parties are in the same state, then only that state’s law would normally apply. Often the law of the state where the recording device is located will govern, though some states take the position that the law of the state where the person being recorded applies.

What’s consent?

What is consent of all parties? Well, if there is mention that the call is being recorded and everyone continues speaking, then that would constitute consent. You’ve heard those recordings when calling for customer service – now you know why. In any case, consent should be clearly documented.

In the workplace too?

There are estimates that up to 50% of employees have recorded conversations in the workplace and up to 1/3 of employees filing discrimination charges supply digital evidence. This conduct would only be unlawful in the 8 states requiring all parties to consent. When legal, this evidence is admissible in hearings and in court. What’s an employer to do?  

Many courts have held that employers may have enforceable policies that prohibit secret recording of conversations if the employer has a valid justification for such a policy, like encouraging free and open communications and protecting trade secrets, provided the policy does not interfere with employees’ rights to engage in “protected concerted activity” under the National Labor Relations Act (NLRA). Such policies are usually lawful even if their prohibitions may result in an employee not being unable to record the evidence of the allegedly discriminatory activity. It is advisable for employers to put such a policy in place. A disclaimer stating that the policy is not intended to interfere with employee rights to engage in protected concerted activity under the NLRA should be included in the policy.

So, would it be legal for President Trump to have secretly recorded his conversation with James Comey??

In the District of Columbia, the consent of only one participant to a conversation is required before any recording can take place under the District’s wiretapping law. D.C. Code § 23-542. So, unless there is an employment policy otherwise – it would be legal.

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William Galkin manages GalkinLaw. Mr. Galkin has dedicated his legal practice to representing Internet, e-commerce, computer technology and new media businesses across the U.S. and around the world. He serves as a trusted adviser to both startup and multinational corporations on their core commercial transactions.