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Surreptitious Recording of Telephone Conversations

Disclaimer: The information contained in this FAQ is provided for general information purposes only and is not intended to be a legal opinion, legal advice or a complete discussion of the issues related to the surreptitious recording.

Every individual's factual situation is different and you should seek independent legal advice from an attorney familiar with the laws of your state or locality regarding specific information.

Key Link:

http://uscode.house.gov/download/pls/18C119.txt

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We are often asked whether one party to a telephone conversation may tape record the conversation without the consent of the other party. A related question involves surreptitious recordings of employees or others by their employers or others using an extension telephone or similar device on the same premises. This area is subject to a patchwork of both federal and state regulation. Accordingly, it is necessary to look at both federal and state law; whichever law is more restrictive will generally be applicable. Federal law may preempt state law in certain instances. As noted below, an attorney should be consulted because of the complex interplay of different regulatory schemes.

Federal Law
The federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., prohibits the willful interception of telephone communication by means of any electronic, mechanical, or other device without an applicable exemption. There are two principal exceptions:

Federal Exceptions

Consent: In the absence of more restrictive state law, it is permissible to intercept and record a telephone conversation if one or both of the parties to the call consents (as long as the tape is not made for a tortious, criminal or otherwise illegal purpose such as blackmail). Consent means authorization by only one participant in the call; single-party consent is provided for by specific statutory exemption under federal law. 18 U.S.C. § 2511(2)(d).

"Business telephone" exception: The "business telephone" exception, which generally allows monitoring of calls and taping over an extension phone which is both provided to a subscriber in the ordinary course of a telephone company's business and is being used by that subscriber in the ordinary course of its business. This provision generally permits businesses to monitor the conversations of their employees, including personal conversations (although this result may vary depending on the federal circuit in which the taping occurs).

Penalties: The federal statutes provide criminal penalties for unlawful interception of telephone conversations, including up to five years' imprisonment or a maximum of $10,000 in fines. They also allow for civil remedies, by which private parties are entitled to recover actual and punitive damages, together with fees and costs. Violations of the Electronic Communications Privacy Act may also qualify for an award of minimum statutory damages of $10,000 per violation.

State law
State law most directly governs the propriety of any recording and is not consistent with regard to the availability of exceptions to the general rule against interception. In general, the state law of the state where the recording is made (rather than to which the call is placed, if different) will govern. If federal law is more restrictive than the state law of the place where the taping occurs, then federal law will generally be controlling. The following list includes all of the all-party-consent states (and some one-party states) as of March 14, 1994.

California: California prohibits telephone monitoring or recording, including the use of information obtained through interception unless all parties to the conversation consent. Cal. Penal Code §§ 631, 632. There is no statutory business telephone exception and the relevant case law all but excludes this possibility. California courts have recognized "implied" consent as being sufficient to satisfy the statute where one party has expressly agreed to the taping and the other continues the conversation after having been informed that the call is being recorded. Violation is punishable by a fine of up to $2,500, imprisonment for not more than one year, or both. A civil plaintiff may recover the greater of $3,000 or three times the amount of any actual damages sustained.

Connecticut: Under Connecticut law, recording without consent of at least one party is a Class D felony punishable by one to five years' imprisonment. Conn. Gen. Stat. § 53a-189. However, failure to obtain the consent of *all* parties is a statutory tort for which damages, costs and attorneys' fees may be recovered. Conn. Gen. Stat. § 52-570d. There are exception in the latter case for, among other things, recipients of extortionate or harassing calls.

District of Columbia: D.C. follows federal law. Single party consent is sufficient and potentially unlawful interception devices do not include telephone equipment furnished to a telephone company subscriber and used in the ordinary course of business. D.C. Code Ann. § 23-541 et seq.

Florida: Florida is a strict all-party-consent state. Fla. Stat. Ann. ch. 934 (Supp. 1980).