Secret recordings, privacy, and the pursuit of truth

The legal status of recorded conversations in family law

By James Todd

Wiretapping has been around since before the telephone. During the Civil War, soldiers on both sides routinely cut into telegraph lines, using copper wires and a receiver to intercept messages and send out disinformation. Wiretapping has since been used for everything from corporate espionage and insider trading to organized crime and, of course, criminal investigations. Even in the domestic sphere, the topic is nothing new.

The question for family-law practitioners is how to advise clients when it comes to secret recordings—whether to gather them and, when presented with secret recordings, whether to use those recordings as evidence in a family court proceeding.

In Minnesota, the problem for a too-eager domestic investigator is Minn. Stat. §626A.02, Minnesota’s anti-wiretapping statute. Along with its virtually identical federal counterpart—Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §2511—the statute prohibits the intentional interception and use of “any wire, electronic, or oral communication.”¹ The good news for amateur sleuths is that there is an exemption from prohibition where one of the parties to the communication has given prior consent to such interception.² This is what is known as the “one-party consent” exception to the federal anti-wiretapping statute and the majority of state statutes (including Minnesota’s).³ And it generally means that recordings of conversations to which the person recording is a party do not violate the federal or Minnesota’s anti-wiretapping statute.

But what about a custodial parent’s recording of their minor child’s conversation with an unaware third party, where the recording parent is not also a party to the conversation? Conventional examples might include recordings by custodial parents of telephone or FaceTime conversations between a minor child and the other parent, baby monitors that link to smartphones through an app, smartwatches worn by children with remotely accessible recording functions, or a recording made by a parent, say, from a different part of the house, of the other parent screaming at their child. Can these secret recordings be used as evidence?

Generally, the answer appears to be (probably) yes—but with caution. Every federal district and appellate court, and virtually every state appellate court,⁴ interpreting essentially identical versions of the federal and state anti-wiretapping statutes (including Minn. Stat. §626A.02 itself), has adopted the doctrine of “vicarious consent,” holding that a guardian can provide vicarious consent on behalf of their minor children and intercept a recording of their minor children’s conversations with another person without violating either state one-party consent statutes or the federal anti-wiretapping statute as long as the guardian has a good-faith, objectively reasonable belief that the interception of such a recording is necessary for the best interests of the children in their custody.⁵

Family law practitioners should be aware (and should advise their clients) that Minnesota state courts have never addressed the issue nor explicitly adopted the vicarious consent doctrine. In Wagner, 64 F. Supp. 2d at 896 (D. Minn. 1999), though, the U.S. District Court for the District of Minnesota did adopt the vicarious consent doctrine as to both the federal and Minnesota anti-wiretapping statutes. The court squarely addressed the issue of whether a custodial parent’s secret recording of their minor child and the other parent would violate either the federal or Minnesota anti-wiretapping statute—and found in a 1999 opinion that such a recording would not violate either statute if the custodial parent had an objectively reasonable, good-faith belief that such a recording was necessary for their minor child’s best interests.⁶

In Wagner, Lesa Wagner sued her former husband, Robert, for Robert’s recording of Lesa’s telephone conversations with the parties’ two minor children, and his use of those recordings in their dissolution proceeding.⁷ Robert admitted to intercepting those telephone calls and using them in the dissolution matter but argued that he had vicariously consented to the recording on behalf of the minor children.⁸ Lesa moved for summary judgment against Robert based on his admission.⁹ The Wagner court denied summary judgment, and its decision is worth quoting at length since it provides an excellent analysis of the vicarious consent doctrine and why the Eighth Circuit adopted it:

“The Court is now confronted with an issue upon which the Eighth Circuit has not spoken, specifically, whether the exemption permits a custodial parent to ‘vicariously consent’ to the recording of the minor child’s telephone conversations.

“Although the issue has not been explicitly addressed by the Eighth Circuit, federal courts in other circuits have examined the issue of the vicarious consent doctrine. See, e.g., Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998); Thompson v. Dulaney, 838 F. Supp. 1535 (D. Utah 1993).

“Most recently, the Sixth Circuit analyzed the vicarious exception doctrine in Pollock. Pollock, 154 F.3d at 607 – 10. The Pollock case, in which a non-custodial parent sued the custodial parent for recording telephone conversations between the non-custodial parent and their 14-year-old child, involved facts substantially similar to those in the present matter. As the Sixth Circuit noted, the basis of the case ‘occurred in the context of a bitter and protracted child custody dispute,’ and the custodial parent maintained that the non-custodial father was subjecting the child to emotional abuse and manipulation by pressuring the child regarding custodial matters. Pollock, 154 F.3d at 603 – 04.

“After an in-depth analysis of the issue, including a thorough examination of the relevant case law from other jurisdictions, the Sixth Circuit adopted the vicarious consent doctrine and held as follows: ‘As long as the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording.’ Pollock, 154 F.3d at 610.

“The court held that the issue of material fact as to the defendant’s motivation in taping the telephone conversations precluded summary judgment. Pollock, 154 F.3d at 612.

“In addition, another district court in the Eighth Circuit addressed the vicarious consent doctrine in Campbell v. Price, 2 F. Supp. 2d 1186 (E.D. Ark. 1998). In analyzing the issue, the court recognized that the ‘Eighth Circuit has not addressed whether parents may vicariously consent to the recording of their minor children’s conversations’ and noted that the court had ‘uncovered no cases rejecting a vicarious consent argument, and, furthermore, finds persuasive the cases allowing vicarious consent.’ Campbell, 2 F. Supp. 2d at 1189. The court thus adopted the vicarious consent doctrine, holding that the custodial parent’s ‘intercepting the telephone conversations must have been founded upon a good faith belief that, to advance the child’s best interests, it was necessary to consent on behalf of his minor child.’
Campbell, 2 F. Supp. 2d at 1191. In reaching its decision, the court noted that it ‘merely applied what it concludes to be the majority law on the subject…’ Campbell, 2 F. Supp. 2d at 1192.

“Indeed, the only case in which the court explicitly declined to adopt the vicarious consent doctrine in connection with Title III was that of Williams v. Williams (“Williams I”), 581 N.W.2d 777 (Mich. App. 1998). In rejecting the doctrine, the Michigan court recognized that it was deviating from the majority. Williams, 581 N.W.2d at 780-81. The Sixth Circuit, in Pollock, observed of the Williams court that, ‘in declining to adopt the doctrine of vicarious consent, it was departing from the path chosen by all of the other courts that have addressed the issue.’ Pollock, 154 F.3d at 609.

“In fact, the Michigan Supreme Court later remanded the Williams case back to the Michigan Court of Appeals for reconsideration in light of Pollock. Williams v. Williams (“Williams II”), 593 N.W.2d 559 (Mich. 1999). On remand, the Michigan Court of Appeals reversed its earlier ruling regarding the vicarious liability exception to Title III liability. The court recognized that, ‘because the Sixth Circuit Court of Appeals has now spoken on the issue and no conflict among the federal courts exists, we are bound to follow the Pollock holding on the federal question in the case.’ Williams v. Williams (“Williams III”), 603 N.W.2d 114, 1999 WL 692342 (Mich. App. 9/3/1999). Accordingly, the only case which had explicitly rejected the vicarious consent exception was subsequently reversed, and its decision was brought into conformity with all other federal decisions that have addressed the issue.

“Finally, therefore, as the Court has uncovered no cases explicitly rejecting the vicarious consent doctrine, as there appears to be no conflict among the federal courts, and as the Court finds persuasive the cases adopting the vicarious consent doctrine, the Court determines that the vicarious consent doctrine should apply in the present matter.”¹⁰

While virtually every federal and state court addressing the issue has adopted the vicarious consent doctrine in one-party consent states like Minnesota, family-law practitioners should still exercise caution because it is still the case that Minnesota never explicitly adopted it. Clients should be advised accordingly. It is technically still possible that clients who secretly record their children’s conversations, to which the clients themselves are not a party, could be found in violation of Minn. Stat. §626A.02 and subjected to criminal and civil penalties.

But it seems unlikely that Minn. Stat. §626A.02 was “intended to subject parents and guardians to criminal and civil penalties when, out of concern for the best interests of their minor children, they record their children’s conversations.”¹¹ If clients possess unassailable recordings of their children experiencing abject abuse, for example, one would be hard-pressed not to use that evidence to protect the children.

JAMES TODD is an attorney and partner at DeWitt’s Minneapolis office (dewittllp.com), where he focuses on family law. He can be reached by email or by calling 612-305-1601. DeWitt LLP, founded in 1903, is one of the 10 largest law firms based in Wisconsin, with an additional presence in Minnesota.

Notes

¹ Minn. Stat. §626.02, subd. 1(1); see also 18 U.S.C. §2511(1)(a).

² Minn. Stat. §626A.02, subd. 2(d); see also 18 U.S.C. §2511(2)(d).

³ Eleven states require the consent of all parties to a telephone conversation before it can be recorded: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. The remaining states, except for Vermont (which has no statutory prohibition on secret recordings), only require the consent of one party to the conversation.

⁴ The only state court to have considered and rejected the doctrine was the Michigan Court of Appeals, which was subsequently reversed and has since brought its decision into conformity with all other decisions to have addressed (and adopted) the vicarious consent doctrine as applied to the federal statute. See Williams v. Williams, 581 N.W.2d 777 (Minn. Ct. App. 1998) (rejecting the vicarious consent doctrine); Williams v. Williams, 593 N.W.2d 559 (Mich. 1999) (remanding the Williams case back to the Michigan Court of Appeals in light of the 6th Circuit’s adoption of the vicarious consent doctrine in Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998)); Williams v. Williams, 603 N.W.2d 114, 1999 (Mich. Ct. App. 9/3/1999) (adopting the vicarious consent doctrine as to the federal statute, but declining to adopt the doctrine to Michigan’s anti-wiretapping statute).

⁵ See, e.g., Wagner v. Wagner, 64 F. Supp. 2d 895, 896, 899 – 901 (D. Minn. 1999); Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir. 1998); State v. Spencer, 737 N.W.2d 124, 128 – 34 (Iowa 2007); State v. Whitner, 732 S.E.2d 861, 863 – 65 (S.C. 2012); Campbell v. Price, 2 F. Supp. 2d 1186, 1189, 1191 – 92 (E.D. Ark. 1998); People v. Badalamenti, 54 N.E.3d 32, 37 – 40 (N.Y. 2016); Griffin v. Griffin, 92 A.3d 1144, 1152 (Me 2014); Commonwealth v. F.W., 986 N.E.2d 868, 873 – 75 (Mass. 2013); Lawrence v. Lawrence, 360 S.W.2d 416, 418 – 20 (Tenn. Ct. App. 2010); Alameda v. State, 235 S.W.3d 218, 221 – 23; Smith v. Smith, 923 So.2d 732, 740 (La. Ct. App. 2005); State v. Morrison, 56 P.3d 63, 65 (Ariz. Ct. App. 2002); In re Marriage of Radae, 567 N.E.2d 760, 763 – 64 (Ill. Ct. App. 1991); State v. Diaz, 706 2d 264, 269 – 70 (N.J. Ct. App. 1998); Silas v. Silas, 680 So.2d 368, 370 – 72 (Ala. Ct. App. 1996).