August 1, 2012

At first, the question of whether or not to tape record a phone call seems like a matter of personal preference. Some journalists see taping as an indispensable tool, while others don’t like the formality it may impose during an interview. Some would not consider taping a call without the subject’s consent, others do it routinely.

However, there are important questions of law that must be addressed first. Both federal and state statutes govern the use of electronic recording equipment. The unlawful use of such equipment can give rise not only to a civil suit by the “injured” party, but also criminal prosecution.

Accordingly, it is critical that journalists know the statutes that apply and what their rights and responsibilities are when recording and disclosing communications.

Although most of these statutes address wiretapping and eavesdropping — listening in on conversations of others without their knowledge — they usually apply to electronic recording of any conversations, including phone calls and in-person interviews.

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. A majority of the states and territories have adopted wiretapping statutes based on the federal law, although most also have extended the law to cover in-person conversations. Thirty-eight states and the District of Columbia permit individuals to record conversations to which they are a party without informing the other parties that they are doing so. These laws are referred to as “one-party consent” statutes, and as long as you are a party to the conversation, it is legal for you to record it. (Nevada also has a one-party consent statute, but the state Supreme Court has interpreted it as an all-party rule.)

Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Be aware that you will sometimes hear these referred to inaccurately as “two-party consent” laws. If there are more than two people involved in the conversation, all must consent to the taping.

Regardless of the state, it is almost always illegal to record a conversation to which you are not a party, do not have consent to tape, and could not naturally overhear.

Federal law and most state laws also make it illegal to disclose the contents of an illegally intercepted call or communication.

At least 24 states have laws outlawing certain uses of hidden cameras in private places, although many of the laws are specifically limited to attempts to record nudity. Also, many of the statutes concern unattended hidden cameras, not cameras hidden on a person engaged in a conversation. Journalists should be aware, however, that the audio portion of a videotape will be treated under the regular wiretapping laws in any state. And regardless of whether a state has a criminal law regarding cameras, undercover recording in a private place can prompt civil lawsuits for invasion of privacy.

This guide provides a quick reference to the specific provisions of each jurisdiction’s wiretap law. It outlines whether one-party or all-party consent is required to permit recording of a conversation, and provides the legal citations for wiretap statutes. Some references to case law have been provided in instances where courts have provided further guidance on the law. Penalties for violations of the law are described, including criminal penalties (jail and fines) and civil damages (money that a court may order the violator to pay to the subject of the taping). Instances where the law specifically includes cellular calls and the wireless portion of cordless phone calls also are noted, but many laws are purposely broad enough to encompass such calls without specifically mentioning them.

Sidebar articles throughout the guide address specific issues related to taping. Note that these are general discussions, and you will have to consult the state entries to see how these issues apply in particular states.

Important notice

This guide is meant as a general introduction for journalists to the state of the law concerning electronic recording and its implications. It does not take the place of legal advice from a lawyer in your state when you are confronted with a legal problem. Journalists who have additional questions or who need to find a lawyer can contact the Reporters Committee at (800) 336-4243.

Because this guide was written with the needs of journalists in mind, it does not address all aspects of electronic recording laws, including the issues of taping family members’ calls and using a tape recording as evidence in a lawsuit or prosecution. Non-journalists who have questions about taping should contact an attorney in their state.