Anyone who knows me is aware of a penchant for surveillance technology that spans three decades now. I periodically refresh my legal knowledge in this space in an effort to keep abreast of State and Federal statues involving electronic surveillance. Recently, I added some updates to the HORSE Project Wiki located here: http://lazarusalliance.com/horsewiki/index.php/18_USC_2518, and http://lazarusalliance.com/horsewiki/index.php/USAM_9-7.200 specifically.
As things more specifically apply to my current Juris Doctor pursuit, civil procedures and equal protection always gets my mind fired up. The question of whether or not to record a phone call or conversation is really a matter of personal preference. Some professionals consider recording an indispensable tool, while others don’t like the formality it may impose or introduce during conversations. Some would not consider recording a conversation at all without the other parties’ consent, while others do it as a routine course of business.
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 professionals know the statutes that apply and what their rights and responsibilities are when recording and disclosing communications.
Wiretapping or eavesdropping is the listening in on conversations of others without their knowledge. Although most of these statutes address wiretapping and eavesdropping, they usually apply to electronic recording of any conversations, including phone calls and in-person communications.
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. Today, 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.
Twelve states today 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 this means that if there are more than two people involved in the conversation, all must consent to the recording activity.
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 record, and could not naturally overhear from a publicly accessible location. 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 today 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. You should be aware, however, that the audio portion of a video recording 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 may prompt civil lawsuits for invasion of privacy by the other party.
By all means, I am making a suggestion that is based upon my experiences and it does not take the place of legal advice from a lawyer in your state. Just as I did and just as you should also, when you are confronted with a legal problem, consult an attorney in your jurisdiction to understand the law and your rights. I am not attempting to address all aspects of electronic recording laws.
Just one other thing to consider while making the decision to play secret agent and record your business day and is there a corporate policy against recording meetings, conversations, and the like? While corporate policy may never overrule the laws of the land, common sense will, however, tell you that you might get terminated for violating corporate policy in doing so. My advice would be that “Loose lips, sink ships” again and if you remain discreet, tell no one, you should be perfectly comfortable with going about recording your business day. I have personally relied on my recording to provide evidence of criminal activity to federal authorities and corporate investigators. Without those recorded events, push comes to shove, it becomes another hearsay event and your nemesis may very well turn out to be your supervisor and what a messy jam that turns into. Irrefutable evidence is the objective here. Preserve it well, encrypt it on your computer, index it in a meaningful way, and keep an encrypted backup copy safe until you decide you no longer need that recorded information.
Word of advice … “You never know when you are auditioning.”