Technology makes it easy—sometimes too easy—to record conversations. Between free voice recording apps or phones that record conversations with the touch of a button, recording conversations has never been easier. In fact, several of my recent cases involved clients that recorded conversations with individuals that later became their adversaries in a subsequent litigation. Those recordings were required to be produced to the adversaries to the extent they were responsive to the adversary’s discovery requests and/or relevant to the litigation. If you intend to record a conversation, however, you should consider whether doing so is legal. This is important because eleven states prohibit recording a conversation unless all parties to the conversation consent and violators can face civil damages and/or criminal penalties. This article will explain the differences between “one” and “two party consent” states and various states’ laws regarding recording conversations.
I. One Party Consent vs. Two Party Consent In General
In the context of recording conversations, the states in our country are divided as either “one party consent” states or “two party consent” states. A “one party consent” state a makes it a crime to record or eavesdrop on an in-person or telephone conversation unless one party to the conversation consents. A “two party consent” state makes it a crime to record or eavesdrop on a conversation, including a private in-person communication or telephone call, without the consent of all parties to the conversation. Most states, like New Jersey, New York and Texas are “one party consent” states. Eleven states, including California, Massachusetts, Florida and Pennsylvania are “two party consent” states. Certain states also have state-specific nuances in their laws that are important to understand before recording conversations. This article discusses the relevant laws of New Jersey, New York, Texas, California, Florida, Pennsylvania and Massachusetts in more detail.
A. New Jersey and New York
New Jersey and New York are “one-party consent” jurisdictions. In particular, New Jersey and New York law make it a crime to record an in-person or telephone conversation unless at least one party to the conversation consents. Thus, in these jurisdictions, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. Violating these laws could subject you to criminal prosecution and civil claims and damages for violating the law relating to recording conversations.
Texas is also a “one-party consent” state. In particular, it is a crime in Texas to intercept or record any “wire, oral, or electronic communication” unless one party to the conversation consents. Texas law, however, does not cover oral communications when the speakers should not have an expectation that their communication is private. Therefore, you may be able to record in-person conversations in Texas without consent if those conversations occur in public places, such as on the street or at a restaurant.
California law is a “two-party consent” law. Thus, in California, it is a crime to record or eavesdrop on a confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. But California law protects only “confidential communications,” which California defines as conversations in which one party has an objectively reasonable expectation that no one is eavesdropping. California also protects confidential conversations occurring in public places as long as it is reasonable under the circumstances for a party to expect the conversation is private. Therefore, in California, you cannot assume that you may record a conversation if you are in public. Similar to the “one-party consent” states, in California, if you violate this law, you can be subject to criminal prosecution and a civil lawsuit for damages.
D. Florida and Pennsylvania
Florida and Pennsylvania are also “two-party consent” states and, therefore, it a crime in these states to record a “wire, oral, or electronic communication,” unless all parties to the communication consent. There is an exception in Florida and Pennsylvania for in-person communications when the parties do not have a reasonable expectation of privacy in the conversation, such as when they are in a public place. Therefore, these conversations may be able to be recorded without violating these states’ laws.
Massachusetts is considered a “two-party consent” state. In particular, in Massachusetts, it is a crime to secretly record any conversation in which sound is being captured. Thus, if you intend to record a conversation in Massachusetts, you must make sure to advise everyone in the conversation that you intend to record it. In Massachusetts, if a participant in a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.
II. Choice of Law
Because each state has different laws on this issue, the next logical question is how to determine which law applies to your case. Unfortunately, it is not always clear which law will apply to a communication, especially if the communication is over the phone. For example, if you are recording a conversation with someone in a different state, it is difficult to say in advance which state’s law applies. If all participants to a conversation are in the same state, however, then it is more likely that the law of that state will govern.
Many times, people record conversations in situations in which they are in a disagreement with another person. The relevant laws across the country, however, are not uniform. Therefore, it is important that you understand the laws of your state before using the freely available technology to record conversations. Otherwise, you may subject yourself to criminal prosecution and a civil suit by an injured party. Indeed, no one wants to have a discovery issue in a litigation that leads to an admission of a possible criminal act. If you have any questions about the laws in the states in which you live or work, you should speak to your trusted counsel.