Attorneys at Law

Disclaimer: The information contained in this FAQ is provided for general information purposes only and is not intended to be a legal opinion, legal advice or a complete discussion of the issues related to the area of surreptitious recording. Every individual's factual situation is different and you should seek independent legal advice from an attorney familiar with the laws of your state or locality regarding specific information.

We are often asked whether one party to a telephone conversation may tape record the conversation without the consent of the other party. A related question involves surreptitious recordings of employees or others by their employers or others using an extension telephone or similar device on the same premises. This area is subject to a patchwork of both federal and state regulation. Accordingly, it is necessary to look at both federal and state law; whichever law is more restrictive will generally be applicable. Federal law may preempt state law in certain instances. As noted below, an attorney should be consulted because of the complex interplay of different regulatory schemes.

Federal Law

The federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., prohibits the willful interception of telephone communication by means of any electronic, mechanical, or other device without an applicable exemption. There are two principal exceptions:

Federal Exceptions

Consent

In the absence of more restrictive state law, it is permissible to intercept and record a telephone conversation if one or both of the parties to the call consents (as long as the tape is not made for a tortious, criminal or otherwise illegal purpose such as blackmail). Consent means authorization by only one participant in the call; single-party consent is provided for by specific statutory exemption under federal law. 18 U.S.C. § 2511(2)(d).

"Business telephone" exception

The "business telephone" exception, which generally allows monitoring of calls and taping over an extension phone which is both provided to a subscriber in the ordinary course of a telephone company's business and is being used by that subscriber in the ordinary course of its business. This provision generally permits businesses to monitor the conversations of their employees, including personal conversations (although this result may vary depending on the federal circuit in which the taping occurs).

Penalties

The federal statutes provide criminal penalties for unlawful interception of telephone conversations, including up to five years' imprisonment or a maximum of $10,000 in fines. They also allow for civil remedies, by which private parties are entitled to recover actual and punitive damages, together with fees and costs. Violations of the Electronic Communications Privacy Act may also qualify for an award of minimum statutory damages of $10,000 per violation.

State law

State law most directly governs the propriety of any recording and is not consistent with regard to the availability of exceptions to the general rule against interception. In general, the state law of the state where the recording is made (rather than to which the call is placed, if different) will govern. If federal law is more restrictive than the state law of the place where the taping occurs, then federal law will generally be controlling. The following list includes all of the all-party-consent states (and some one-party states) as of March 14, 1994.

California

California prohibits telephone monitoring or recording, including the use of information obtained through interception unless all parties to the conversation consent. Cal. Penal Code §§ 631, 632. There is no statutory business telephone exception and the relevant case law all but excludes this possibility. California courts have recognized "implied" consent as being sufficient to satisfy the statute where one party has expressly agreed to the taping and the other continues the conversation after having been informed that the call is being recorded. Violation is punishable by a fine of up to $2,500, imprisonment for not more than one year, or both. A civil plaintiff may recover the greater of $3,000 or three times the amount of any actual damages sustained.

Connecticut

Under Connecticut law, recording without consent of at least one party is a Class D felony punishable by one to five years' imprisonment. Conn. Gen. Stat. § 53a-189. However, failure to obtain the consent of *all* parties is a statutory tort for which damages, costs and attorneys' fees may be recovered. Conn. Gen. Stat. § 52-570d. There are exception in the latter case for, among other things, recipients of extortionate or harassing calls.

District of Columbia

D.C. follows federal law. Single party consent is sufficient and potentially unlawful interception devices do not include telephone equipment furnished to a telephone company subscriber and used in the ordinary course of business. D.C. Code Ann. § 23-541 et seq.

Florida

Florida is a strict all-party-consent state. Fla. Stat. Ann. ch. 934 (Supp. 1980).

Illinois

Illinois requires prior consent of all participants to monitor or record a phone conversation. 720 ILCS 5/14-2. There is a new specific business telephone exception, but in general courts have found extension telephones do not constitute eavesdropping devices. Criminal penalties for unlawful eavesdropping include up to three years' imprisonment or $10,000 in fines and the civil remedy provides for recovery of actual and punitive damages.

Maryland

Maryland is an all-party-consent state. Md. Cts. & Jud. Proc. Code Ann. § 10-402 (1980).

Massachusetts

Massachusetts requires consent of all parties unless another exception applies. Mass. Gen. Laws Ann. ch. 272, § 99. Telephone equipment which is furnished to a phone company subscriber and used in the ordinary course of business is excluded from the definition of unlawful interception devices. Id. at 99(B)(3). Office intercommunication systems used in the ordinary course of business are similarly exempt. Id. at 99(D)(1)(b). The criminal penalty is a fine of up to $10,000, imprisonment for up to five years, or both. In civil litigation, an injured party may recover actual and punitive damages as well as costs and fees. It is a separate violation to divulge or use the information garnered through unlawful interception and an additional penalty of up to two years in prison or $5,000 may be imposed on this count.

Michigan

Michigan's statute is ambiguous on its face, but judicial authority suggests that the consent of any one party is sufficient. MCL 750.539c; MSA 28.807(3); Sullivan v. Gray, 117 Mich.App. 476, 324 N.W.2d 58 (1982).

Montana

Montana is an all-party consent state. Mont. Rev. Codes § 94-8-114 (1973).

New Hampshire

New Hampshire requires the consent of all parties. N.H. Rev. Stat. Ann. §§ 570 A:2 (Replacement 1974).

New York

New York is a one-party-consent state. N.Y. Penal Law § 250.00. There is no business telephone exception; the New York Attorney General has taken the position that an employer must obtain the prior consent of one party before intercepting an employee's calls. Violation carries a maximum criminal penalty of four years' imprisonment. There is no civil cause of action.

Oregon

Oregon requires the consent of all parties. Or. Rev. Stat. §§ 165.540 (Replacement 1979).

Pennsylvania

Pennsylvania requires the consent of all parties. 18 Pa. Cons. Stat. Ann. § 5704(4), but surreptitious use of extensions for these purposes constitutes interception within the wiretapping statute. Felony penalties may be imposed for violation of the Pennsylvania statute.

Washington

Washington requires the consent of all parties. Wash. Rev. Code Ann. Sec. 9.73.030 (Supp. 1979).

Lawyers

Under ABA Formal Opinion 337 (August 10, 1974), and certain state and local opinions, it is generally unethical for an attorney to make an undisclosed recording of other persons.

FCC Rules

The FCC Regulations require telephone carriers to file tariffs with the Commission to the effect that: (1) adequate notice be given to all parties that their conversation is being recorded; (2) that such notice be given by the use of an automatic tone warning device; and (3) that the tone warning device be furnished, installed and maintained by the telephone company along specified technical guidelines. 11 FCC 1033, 1050, 12 FCC 1005, 1008 (1947). These regulations are directed toward the telephone carriers, and do not make recording a criminal offense. However, a person who fails to use the "beep" tone as required may have his telephone service terminated.

Evidentiary issues

Individuals and businesses that make surreptitious recordings often do so with the expectation that the recordings will be useful as evidence. Such recordings are subject to significant barriers to use as evidence. First, if made in violation of either federal or state law, the recordings will almost certainly be inadmissible. Second, even if lawfully recorded, the tapes will constitute "hearsay" and thus need to come under some exception to the hearsay rule in order to be usable for impeachment or other evidentiary purposes. Anyone contemplating an evidentiary use of surreptitious recordings should consult with an attorney prior to making the recording.

Conclusion

Because the law relating to surreptitious recording of telephone conversations varies from state to state, a person who may have valuable rights affected by such laws should consult with an attorney who specializes in such matters. The foregoing is intended to be a general summary, not an exhaustive treatise, and should in no event be construed as legal advice, which can only be given by an attorney who is admitted to practice in your state, to whom you pay a fee, and who in return undertakes to protect your rights and to explain your responsibilities.

Copyright (c) 1996 Hilary B. Miller