What's this Guide About?
In a nutshell, this guide is about when it is permissible, or not permissible, to record a telephone conversation. Always proceed with caution, for it is almost universally, NOT OK to record a phone conversation if you do not have the prior consent of at least one of the parties who is participating in the call. For example, if you ran a wire to your neighbor's house and attached it to the phone company's interface in order to listen in on the neighbor's phone conversations, you would be committing an illegal act. However, is it legal to record if one of the participants does consent? Or, when all parties consent? Does it make a difference if the parties are located in different states? This guide will attempt to answer such questions. Nevertheless, you should always consult with a local attorney to confirm whether a planned recording is legal before proceeding.
When One Party Consents
Let's use a hypothetical case. John has been cheating on Mary and their marriage is disintegrating. John has left the marital residence in Brentwood, Tennessee, and now lives in a hotel in Nashville. During court proceedings, John denied having been unfaithful. However, he has been calling Mary nightly asking her to forgive his infidelity and to take him back. Is it permissible for Mary to record these calls? Under Tennessee law the answer is YES, because Mary is a participant in the call and is consenting to the recording. Thirty-eight states (known as "single-consent states"), including Tennessee, allow telephone recordings so long as one party is aware of the recording and has agreed to it.
When One Party Isn't Enough
What if, instead of residing in Tennessee, John and Mary live in Orlando, Florida? The answer then changes to NO, as Florida is one of twelve "multiple-consent states" (the others being California, Connecticut, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington) that require ALL parties to a recording be aware of and consent to that recording being made. In Florida, therefore, Mary would be committing a crime if she taped John's nighttime confessions without his knowledge.
What if the Parties are in Different States?
Let's change our scenario one more time...now, John has left the marital residence in Tennessee and is living in Florida. His nightly confessions are coming from a condo in Orlando. Can Mary still legally record the conversation? The answer is a big MAYBE and could hinge on whether John initiates the call from Florida (in which case it would be more likely that Florida law would apply) or Mary initiates the call from Tennessee (in which case it would be more likely that Tennessee law would apply). Other factors that might be considered are why the recording is being made (recordings made to document crimes are given greater leeway) and who actually placed the call (e.g. John's mistress placed the call and then put the phone receiver in John's hands). If you are wondering, federal law follows the "single-consent" model and, therefore, is usually not determinative.
Is the Recording Admissible in Court if I Didn't Consent?
Generally speaking, YES, subject to the rules of evidence in a particular jurisdiction and whether or not the recording was made in compliance with prevailing law. As a precaution, if you are having relationship issues, DO NOT DISCUSS ANYTHING over a telephone line that you wouldn't want recorded and played before a judge.
So, when is it OK to record a telephone conversation? If both parties are located in a "single-consent state" it is probably safe to record the call. If one party is located in a "single-consent state" and the other party is located in a different "single-consent state", it is also probably safe to record the call. If either or both parties are in a "multiple-consent state", DO NOT RECORD. The recording may not be legal and you could find yourself facing a criminal charge. When in doubt, notify all parties involved in a telephone call that it is going to be recorded. Again, I strongly recommend that if you are inclined to record a telephone conversation, meet first with a local attorney who can review the facts and circumstances and advise you whether or not to proceed.