2006-10-20

Recording your phone calls.

Can you record your own phone calls, ingoing and outgoing? Usually, at least in the United States.

Most states are “one-party-consent law” states. If you live in one of these, you can always record your own in-state calls either openly or surreptitiously, since only one participant’s consent is needed. Likewise, you can get someone else to record them for you.

In interstate calls, it’s important to check this state-by-state summary, because in interstate calls, both states’ laws apply, and you need to apply the most stringent applicable law. For example, if you live in California or are even just speaking to someone in California (an “all-party-consent law” state), you must get the other party's permission to record the call, or risk having to pony up $5000 in statutory damages (or three times the actual damages, whichever is greater). In general, announcing your intent to record and letting the other party hang up if they don’t like it is sufficient in all states: continued participation implies consent.

The all-party-consent law states are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, Washington. In Delaware, Indiana, Iowa, Missisippi, and probably New Mexico as well, a participant may record but a non-participant may not, even with consent. In Vermont the law is unsettled.

I am not a lawyer; this is not legal advice; laws change; errors happen.

8 comments:

Ezra said...

This was very useful (and novel) to me when I went to college in Indiana, and was involved with student journalism. Very, very handy to record all your phone calls when doing interviews! But I still felt somewhat shady doing so, and it did get me into some...er... bad habits when I went back home to an internship at a newspaper in Pennsylvania.

Lauren Wood said...

I believe Canada also has one-party consent. I have no idea what happens if someone in Canada calls someone in one of the US states that requires all-party consent, but I'd be interested if anyone has the answer.

Jim Ley said...

So you're calling me on my UK phone number (one party consent) but I'm sitting in California at the time using VOIP - would that be violation of the California law?

John Cowan said...

Lauren, I don't see any reason why a California court shouldn't be able to assert jurisdiction in such a case if a California plaintiff brings suit. Alternatively, the Californian might bring suit against you in an Ontario court, which would probably then apply California law. I doubt that the California criminal statute would have much purchase provided you stayed out of the jurisdiction.

Jim, I think it would be. However, if I had no reason to think you were in California, that would be a "mistake of fact", and I would probably escape prosecution. Now, however, I'm on notice (/me turns off recording device).

Anonymous said...

My husband and I live in Michigan but he works in Indiana... my husbands ex-wife live in Indiana She is ver abusive on the phone and we are getting ready for a custody fight for the 4 children. We want to record the conversations between my huband and his ex. Even though Michigan is a two party state and Indiana is a one party state, can we record the conversations that occur when he is at work in Indiana and she is also in Indiana? If need be, how can we prove that he was physically in Indiana when the recording was made?

John Cowan said...

Anonymous: I am not a lawyer, and this is not legal advice. Ask your lawyer before doing anything! No lawyer? Get one!

But on the face of things, if both parties are in Indiana, then only Indiana law applies; I can't imagine why the law where you live would matter. Proving your husband is in Indiana would be done in the usual way -- getting someone to testify that he was at work that day, or whatever.

Anonymous said...

Indiana Husband,

I am not a lawyer, and this is not legal advice. Check the law before doing anything.

I have been told that if a party does not given consent to recording, then it is inadmissable in court.

Anonymous said...

http://www.aapsonline.org/judicial/telephone.htm is a helpful summary of where these laws are codified.