iRecorded a private conversation: Call recording and the law

In the days of landlines, before iPhone was a household name, proving what was said during a private phone conversation generally came down to “he said, she said” and who was ultimately more believable. Nowadays, apps such as TapeACall Pro, Call Recorder-Int Call, Call Recorder for iPhone, Call Recorder Lite, and Call Recorder Unlimited enable almost anyone with a smartphone to record private telephone conversations with the mere click of a button. While this may sound like an attractive option—especially when a client’s case hinges on the contents of a private conversation, and the client just so happens to have a recording of such conversation—it is vital to brush up on the applicable wiretapping law(s) before using any telephone call recording for a case (especially since violations of wiretapping laws can result in hefty fines and prison time). 

At its most basic level, “wiretapping laws” are laws that govern telephone call recording. The U.S. government has passed a federal wiretapping law, and most states have passed similar laws as well. The federal law, “Title III of the Omnibus Crime Control and Safe Streets Act,” provides the following as it relates to the recording of private telephone conversations among private individuals: 

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.¹

The federal wiretapping law is known as a “one-party consent” law. If a client is a party to the conversation, the client—and the client alone—can lawfully be the party to consent to the recording, without notifying the other party to the conversation. 

Minnesota’s wiretapping law tracks the federal statute and similarly requires one-party consent:

It is not unlawful under this chapter for a person not acting under color of law to intercept a wire, electronic, or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state.²

Nonetheless, the requisite amount of consent is not uniform among the states. Indeed, some states, like Pennsylvania and California, require the consent of all parties to the conversation prior to recording. States with this requirement are known as “two-party consent” states or “all-party consent” states. Thus, when a private individual client in a one-party consent state (like Minnesota) records a telephone conversation with another private individual in a two-party consent state (like Pennsylvania or California), the situation warrants preemption, choice of law, ethical, and evidentiary considerations. 

The law concerning how and when the federal wiretapping law comes into play is pretty well settled. The federal wiretapping law will only control if the state’s wiretapping law is less strict than the federal law, or if the state does not have a wiretapping law at all.³ The choice of law inquiry is not nearly as well-settled. While some courts apply the wiretapping law of the state where the recording took place, other courts apply the wiretapping law of the state where the recorded individual was located.⁴ Minnesota courts have not yet directly opined on this particular issue. 

Although this gray area may lend itself to colorful and novel arguments, the risk of subjecting the client to potential criminal liability should be weighed against the desire to win the client’s current case by introducing a recorded telephone conversation. A conversation can almost always be introduced through an evidentiary vehicle other than an exact recording—one that poses no risk of criminal liability. 

Amidst the uncertainty, a couple of things are clear. First, telephone call recording has become more widespread and generally accepted in society over the past few years, with some individuals even expecting all their conversations to be recorded. Second, violations of wiretapping laws have hefty penalties, so it is important that a thorough analysis of preemption, choice of law, ethical, and sometimes evidentiary issues be considered before using a recorded telephone conversation for a client’s case. Remember, even though a recording may win the client’s case, it may also subject the client to criminal liability. Finally, the majority of state wiretapping laws only require one-party consent (see table), so more likely than not, a private individual client can lawfully surreptitiously record a telephone conversation so long as that individual is a party to the conversation. When in doubt, though, the best practice is to obtain consent of all parties to a telephone conversation prior to recording. That way, the client will not be in any danger of criminal liability. 

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State wiretapping laws: Consent requirements

Notes

¹ 18 U.S.C. §2511, subd. 2(d).

² Minn. Stat. §626A.02, subd. 2(d). 

³ See, e.g., Roberts v. Americable Int’l Inc., 883 F. Supp. 499 (E.D. Cal. 1995).

⁴ Compare Broughal v. First Wachovia Corp., 14 Pa. D. & C. 4th 525 (Pa. Com. Pl. 1992), with Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914 (Cal. 2006).