Summary of Consent Requirements for Taping Telephone Conversations from Joseph Culligan

Summary of Consent Requirements for Taping
Telephone Conversations from Joseph Culligan

Summary of Consent Requirements for Taping Telephone Conversations

This chart sets forth the applicable law regarding whether telephone conversations may be lawfully recorded. Remember that unless the caller and the called party are in the same state - then only that state's law would apply - the interstate call actually implicates three bodies of law, federal law, the law of the calling-party's state, and the law of the called- party's state. Each law must be obeyed.

The federal statute convering the interception and disclosure of wire communications is codified at 18 U.S.C. § 2511. The statute is the blueprint for many of the state statutes in this area of the law. It requires one-party consent and states it is not unlawful "for a person not acting under the color of state 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 tortuous act in violation of the Constitution or laws of the United States or of any state." 18 U.S.C. §2511(d).

As to the individual states, each can be grouped in one of two categories. Specific statute citations for each state follow.

One Party Consent States		Two Party Consent States
Alabama	New Mexico	California
Alaska	New York	Connecticut
Arizona	North Carolina	Delaware
Arkansas	North Dakota	Florida
Colorado	Ohio	Maryland
District of Columbia	Oklahoma	Massachusetts
Georgia	Oregon	Nevada (see other statute)
Hawaii	Rhode Island (see case law)	New Hampshire
Idaho	South Carolina (no statute, see case law)	Pennsylvania
	South Dakota	Vermont
Indiana	Tennesee	Washington
Iowa	Texas	Illinois
Kansas	Utah
Kentucky	Virginia
Louisiana	West Virginia
Maine	Wisconsin (see other statute)
Michigan (see other statute)	Wyoming
Minnesota
Mississippi
Missouri
Montana
Nebraska
New Jersey

A further explication of the relevant law is as follows:

Alabama	Ala. Code § 13A-11-30(1)	The Statutory definition of eavesdropping excludes the recording of a conversation with the consent of one party. Thus, the citizen has a right to record his own conversations.
Alaska	Alaska Stat. §§ 42.40.300(a) & 42.20.310(a)(1)	Statute does not prohibit the use of an eavesdropping device to record a private conversation when there is the consent of "a party to the conversation." Accord Palmer v. State , 604 P. 2d 1106, 1108 n. 5 (Alaska 1976)(finding the statute was clearly intended to prohibit third-party eavesdropping and is not applicable to a situation where one of the participants recorded the conversation.)
Arizona	Ariz. Rev. Stat. Ann. § 13-3005	A party is not prohibited from intercepting oral communications.
Arkansas	Ark. Code Ann. § 5-80-120(a)	It is lawful to record a communication if one is a party to the communication or has received the prior consent of a party to the communication.
California	Cal. Penal Code § 632(a)	Statute prohibits the recording of confidential communications without "the consent of all parties." Evidence obtained in violation of this section may not be used in any judicial proceeding. This prohibition is confined to confidential communications, defined by statute as "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties there to," but does not include communications made under any "circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded."
Colorado	Colo. Rev. Stat. § 18-9-303(1)	Statute does not prohibit the recording of a conversation by either a "sender or intended receiver" of a telephone communication.
Connecticut	Conn. Gen. Stat. Ann. § 52-570d(a)	Statute creates a civil cause of action for any person whose telephone conversation is recorded unless the person recording the conversation received the "consent of all parties to the communication." Consent must be obtained either in writing or at the beginning of the recorded conversation."
Delaware	Del. Code. Ann. tit. 11, § 1335(a)(4)	It is a violation of privacy (both a criminal misdemeanor and civilly actionable) to intercept a telephone conversation without the consent of all parties.
District of Columbia	D.C. Code. Ann. § 23-542(b)(3)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Georgia	Ga. Code Ann. §§ 16-11-62	Statute allows a party to a communication to record the communication. Accord Sheppard v. 16-11-66(a)Reid, 402 S.E.2d 793,793-94 (Ga. Ct. App. 1991)
Hawaii	Haw. Rev. Stat. §§803-42(b)(3) & 711-1111(1)(d)	It is neither invasion of privacy nor eavesdropping to record a telephone conversation if a party to the conversation.
Illinois	720 ILS 5/14-2"(a)	Statute prohibits recording a telephone conversation without the consent of "all parties to [the] conversation." But, Illinois courts have found that the recording of a conversation by a party to the conversation is not a violation of the statute even if another party to the conversation is unaware of the recording. People v. Jansen, 561 N.E.2d 312, 314 (Ill. App. Ct. 1990).
Indiana	Ind. Code Ann. § 35-33.5-1-5(2)	Statute allows the recording of a telephone conversation by either the sender or receiver of the communication
Iowa	Iowa Code Ann. §§ 727.8 & 808B.2(2)(c)	Statute allows a sender or receiver to record a telephone conversation
Kansas	Kan. Stat. Ann. §§ 21-4001(a)(3) & 21-4002(a)(1)	It is neither invasion of privacy nor eavesdropping to record a telephone conversation if the recording is accomplished with the consent of either the sender or receiver of the communication. Accord State v. Norris, 502 P .2d 817, 823 (Kan. 1972)
Kentucky	Ky. Rev. Stat. Ann. § 526.010	To avoid falling under the eavesdropping statute the consent of at least one party to the telephone conversation must be received
Minnesota	Minn. Stat. Ann §626A.D2 subd. 2(d)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication
Mississippi	Miss. Code Ann. §41-29-531(e)	Statute exempts from civil liability the interception of a communication if the interceptor is a party to the communication or has received the prior consent of a party to the communication
Missouri	Mo. Ann. Stat. § 542.402(2)(3)(Supp.)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication
Montana	Mont. Code Ann. § 45-8-213	It is a violation of privacy in communications to record a conversation "without the knowledge of all parties to the conversation." But, Montana case law indicates, at least in a criminal setting, that recording a telephone conversation when one of the participants consents is permissible. State v. Coleman , 616 P.2d 1090, 1096 (Mont. 1980). see also State v. Brown 755 P.2d 1364, 1368 (Mont. 1988); State v. Cannon, 687 P .2d 705, 708 (Mont. 1984).
Nebraska	Neb. Rev. Stat. § 86-702(2)(c)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Nevada	Nev. Rev. Stat. §§200.620 & 48.077	It is unlawful to intercept a telephone conversation unless one party to the communication consents and an emergency situation exists making it impractical to get a court order permitting the interception. But, Nevada statutorily allows the admission in its courts of the contents of anycommunication lawfully intercepted under the laws of another jurisdiction if the interception occurred in the other jurisdiction.
New Hampshire	N.H. Rev. Stat. Ann. §570-A:2(1-a)	It is unlawful to record a telephone conversation without the consent of all parties to the conversation.
New Jersey	N.J. Rev. Stat. §2A:156A-4(d)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
New Mexico	N.M. Stat. Ann §30-12-1(C)&(E)	It is lawful to record a telephone conversation with the consent of a "sender or intended recipient" of the conversation.
New York	N.Y. Penal Law §250.00(1)	It is lawful to record a telephone conversation if one is a party to the conversation or has received the consent of a party to the communication. Accord People v. Lasher, 447 N.E.2d. 70, 71 (N.Y. 1983).
North Carolina	N.C. Gen Stat. §15A-287(a)	It is lawful to intercept a communication with the consent of one party to the communication.
North Dakota	N.D. Cent. Code §12.1-15-02(3)(c)	It is a defense to prosecution for interception of wire communications that one was a party to the communication or one of the parties to the communication gave prior consent to the interception
Ohio	Ohio Rev. Code Ann. §2933.52(B)(4)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Oklahoma	Okla. Stat. Ann. tit. 13, §176.4(5)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Pennsylvania	18 Pa. Cons. Stat Ann. §5704(4)	It is unlawful to intercept a telephone conversation unless all parties to the conversation give prior consent to the interception. Accord Commonwealth v. McCoy 275 A. 2d 28, 30 (Pa. 1971); Commonwealth v. Jung, 531 A.2d 498, 502-04 (Pa. Super. Ct. 1987).
Rhode Island	R.I. Gen. Laws §11-35-21(c)(3)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
South Carolina	No state statute	South Carolina does not have a state statute on its books that regulates the interception of phone conversations. But, South Carolina case law indicates that when such issues arise in South Carolina courts, the courts will look to 18 U.S.C §2511. the federal statute on the interception and disclosure of wire communications. Under 18 U.S.C. §2511(2)(d), it is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication. See Mays v. Mays, 229 S.E.2d 725, 726-27 (S.C. 1976) (finding that 18 U.S.C. §2511(2)(d) "makes it clear that one party to a telephone conversation may lawfully tape the conversation without the other's knowledge or permission and subsequently disclose [the conversation]."); Thompson v. State , 479 S.E.2d 808, 810-11 (S.C. Ct. App. 1996) (finding that taped telephone conversations between defendant and confidential informant did not violate 18 U.S.C. §2511 and the defendants right to privacy).
South Dakota	S.D. Codified Laws Ann. §23A-35A-20(1)	It is lawful to record a telephone communication if one is a sender or receiver of the communication or has received the consent of a sender or receiver of the communication.
Tennessee	Tenn. Code Ann. §39-13-601(b)(5)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Texas	Tex. Penal Code Ann. §16.D2(c)(4)	It is an affirmative defense to prosecution for interception of wire communications that one was a party to the communication or one of the parties to the communication gave prior consent to the interception.
Utah	Utah Code Ann. §§76-9-401(2), 76-9-403(1)(a), & 77-23a-4(7)(b)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Vermont	No state statute	There is no state statute on the books regulating the interception of telephone conversations. The case law is sparse in this area and has not yielded a clear indication of whether Vermont is a one-party or two-party consent state. In one case, the court indicated, without deciding the issue, that the federal statute on interception and disclosure of wire communications (18 U.S.C. §2511) was applicable in the state setting. State v. Fuller, 503 A. 2d 550, 551 (Vt. 1985) . The federal statute permits one party to a communication to intercept the communication. Another Vermont case indicates that, in a criminal setting , challenges to recorded conversations may be made on Fourth, Fifth, and Sixth Amendment grounds. State v. Kasper, 404 A.2d 85, 92-93 (Vt. 1979).
Washington	Wash. Rev. Code Ann. §9.73.030(1)(a)	It is unlawful to record a telephone conversation without the consent of all the participants in the conversation.
West Virginia	W. Va. Code §62-1D-3(c)(2)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Wisconsin	Wis. Stat Ann. §§968.31(c) &885.365(1)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication. But, another section of the Wisconsin code states that evidence obtained by recording telephone conversations shall be totally inadmissible in civil actions in the courts of Wisconsin.
Wyoming	Wyo. Stat. §7-3-602(b)(iv)	It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.

Compare the United States to the United Kingdom

The interception, recording and monitoring of telephone calls is governed by a number of different pieces of UK legislation. The requirements of all relevant legislation must be complied with. The main ones are:

Regulation of Investigatory Powers Act 2000 ("RIPA"). · Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 ("LBP Regulations"). · Data Protection Act 1998.
Telecommunications (Data Protection and Privacy) Regulations 1999.
Human Rights Act 1998.

Recording Private Calls

The relevant law, RIPA, does not prohibit individuals from recording their own communications provided that the recording is for their own use. Recording or monitoring are only prohibited where some of the contents of the communication - which can be a phone conversation or an e-mail - are made available to a third party, i.e. someone who was neither the caller or sender nor the intended recipient of the original communication.

According to Oftel, you do not have to let people know that you intend to record their telephone conversations, provided you are not intending to make the contents of the communication available to a third party. If you are you will need the consent of the person you are recording.

Businesses and Other Organizations

A business or other organisation cam record or monitor phone calls n a limited set of circumstances relevant for that business which has been defined by the LBP Regulations. The main ones are:

to provide evidence of a business transaction
to ensure that a business complies with regulatory procedures
to see that quality standards or targets are being met
in the interests of national security
to prevent or detect crime
to investigate the unauthorised use of a telecom system
to secure the effective operation of the telecom system.

Businesses do not have to tell if they are going to record or monitor phone calls. As long as the recording or monitoring is done for one of the above purposes the only obligation on businesses is to inform their own employees. If businesses want to record for any other purpose, such as market research, they will have to obtain your consent.

Where organisations do feel it necessary to record or monitor calls - for whatever reasons - the rules under which they do so have been set by the Privacy of Messages condition of the major two telecom class licences - the Self-Provision (SPL) and Telecommunication Services (TSL) Licences. The most fundamental requirement of this condition has been that every reasonable effort is made to inform all parties to a telephone conversation that it may or will be recorded.

In addition, businesses can monitor, but not record, phone calls or e-mails that have been received to see whether they are relevant to the business (i.e. open an employee's voicemail or mailbox systems while they are away to see if there are any business communications stored there).

However, any interception of employees' communications must be proportionate and in accordance with Data Protection principles. The Data Protection Commissioner is consulting on a Code of Practice on The use of personal data in employer/employee relationships. It is proposed that where the standards in the Code of Practice are, in the Commissioner's opinion, necessary for compliance with the Data Protection Act 1998 they may be directly enforceable as a breach of the Data Protection principles. Accordingly this Code of Practice and the Data Protection Act must also be considered by any business before it intercepts employees' communications (see next paragraph).

Recording Employee's Conversations

Companies and organisations that routinely record telephone calls must ensure that their employees are able to make personal calls that are not also recorded under the same system.

Staff must also be made aware that personal conversations could be recorded on their telephone and must have access to a separate telephone on the premises where they can make and receive personal calls that are not recorded.

Companies that do not provide this guarantee of confidentiality could be in breach of Article 8 of the Europe Convention on Human Rights that covers people's right to privacy.