The U.S. federal law allows recording of phone calls and other
electronic communications with the consent of at least one party to
the call. A majority of the states and territories have adopted
wiretapping statutes based on the federal law, although most have
also extended the law to cover in-person conversations. 38 states
and the D.C. permit recording telephone conversations to which they
are a party without informing the other parties that they are doing
12 states require, under most circumstances, the consent of all
parties to a conversation. Those jurisdictions are California,
Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan,
Montana, Nevada, New Hampshire, Pennsylvania and Washington.
It is illegal under all jurisdictions to record calls in which
one is not a party.
A complete state-by-state set of regulations regarding telephone
call recording may be obtained in the following report published by
The Reporters Committee for Freedom of the Press:
The US Federal Law
The federal Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C. Sec. 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
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. 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. Sec. 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.
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
Individuals and businesses that make surreptitious recordings
often do so with the expectation that the recordings will be useful
as evidence. Such recordings are subject to significant barriers to
use as evidence. First, if made in violation of either federal or
state law, the recordings will almost certainly be inadmissible.
Second, even if lawfully recorded, the tapes will be exempt from the
hearsay rule and will not, in most jurisdictions, be usable for
impeachment. Anyone contemplating an evidentiary use of
surreptitious recordings should consult with an attorney prior to
making the recording.
Recording Telephone Calls with Parties in Different
Federal law may apply when the conversation is between parties
who are in different states, although it is unsettled whether a
court will hold in a given case that federal law "pre-empts" state
law, but either state may choose to enforce its own laws. Therefore
it is better to err on the side of caution when recording an
interstate telephone call.
The Role of FCC
The FCC's role in assisting consumers who believe their telephone
conversations were unlawfully recorded is generally limited to
ensuring that telephone companies enforce their tariff provisions
regarding recording of telephone conversations. The only penalty
that can be enforced by the local carrier is revocation of telephone
service. (In the Matter of Use of Recording Devices in Connection
with Telephone Service)
The FCC protects the privacy of telephone conversations by
requiring notification before a recording device is used to record
interstate or foreign telephone conversations. These types of
conversations may not be recorded unless the use of a recording
- Preceded by verbal or written consent of all parties to the
telephone conversation; or
- Preceded by verbal notification which is recorded at the
beginning, and as part of the call, by the recording party; or
- Accompanied by an automatic tone warning device, sometimes
called a beep tone, which automatically produces a distinct signal
that is repeated at regular intervals during the course of the
telephone conversation when the recording device is in use.
- Also, no recording device may be used unless it can be
physically connected to and disconnected from the telephone line
or switched on and off.
The above FCC rule requirements apply to telephone common
carriers. Similar requirements are imposed on consumers through the
State Laws (Table)
While the U.S. federal law only requires one-party consent, many
states have accepted different laws. In some states all
parties must give their consent or at least be notified that
the call is about to be recorded (with necessary opt-out option: if
you don’t like them to record the call, you can ask them to stop
recording). There also was a case law decision from many years ago
(the 1950's) that went to the Supreme Court and affirmed that the
federal law does not supersede state authority/statutes unless the
call or the tap crosses state lines – that is why each state went
ahead and established their own guideline/statute.
|States Requiring One Party Notification
District Of Columbia
Interesting Facts About Recording Telephone Calls In Different
Arizona is a "one-party" state, ARS 13-3005.A(1)(2), and also
permits a telephone "subscriber" (the person who orders the phone
service and whose name is on the bill) to tape (intercept) calls
without being a party to the conversation and without requiring any
notification to any parties to the call, ARS 13-3012(5)(c).
Illinois is, by statute, a two-party state. However, case law
from both the IL Supreme Court and various Illinois appellate courts
have declared Illinois a one-party state in the case of private
citizens (businesses and plain folks - NOT law enforcement). The
reigning consensus is that one-party consensual recording is merely
"enhanced note-taking" and since some folks have total recall
without recording, how can the other party have any expectation of
privacy to a conversation held with another person.
Illinois requires prior consent of all participants to monitor or
record a phone conversation. Ill. Rev. Stat. Ch. 38, Sec. 14-2.
There is no specific business telephone exception, but in general
courts have found extension telephones do not constitute
eavesdropping devices. Criminal penalties for unlawful eavesdropping
include up to three years' imprisonment or $10,000 in fines and the
civil remedy provides for recovery of actual and punitive damages.
In the state of Illinois it is illegal to monitor cordless
Wisconsin is currently a one-party state though recent attempts
in the legislature there have attempted, unsuccessfully so far, to
change it to two-party. Even so, any evidence gathered by a
one-party consensual recording is inadmissible except in murder or
drug cases, as they say.
The Wisconsin Stats 885.365 Recorded telephone conversation (1)
states "Evidence obtained as the result of the use of voice
recording equipment for recording of telephone conversations, by way
of interception of a communication or in any other number, shall be
totally inadmissible in the court of this state in civil actions,
except as provided by 968.28 to 968.37." Exceptions are it the party
is informed before the recording is informed at the time that the
conversation is being recorded and that any evidence thereby
obtained may be used in a court of law or such recording is made
through a recorder connector proved by the telecommunications
utility as defined in WI Stats 968.28 - 968.37 (which is the stat
for court ordered wiretaps) which automatically produces a
distinctive recorder tone that is repeated at intervals of
approximately 15 seconds. Fire department or law enforcement
agencies are exempt as are court ordered wire tapes.
Also a recording on the phone made from a out of state call or
made to an out of state party, has to have the party informed of the
recording and his consent or the tone on line, every 15 seconds, or
a consent in writing before the recording is started.
Needless to say this does not allow a person not a party to the
conversation to record any part of the conversation without the
parties to the conversation being informed the third party is
recording the conversation.
Although California is a two-party state, it is also legal to
record a conversation if you include a beep on the recorder and for
the parties to hear. This information was included with my telephone
California prohibits telephone monitoring or recording, including
the use of information obtained through interception unless all
parties to the conversation consent (California Penal Code Sections
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.
Washington requires the consent of all parties. Some companies
manage to work around that by going to the Indian reservations or
any federally owned property to make the call - Federal law is a one
In the state of Indiana it is one party authorization. As far as
what is admissible in court it is still being tested per each case
individually by the prosecutors office in the county in which the
investigation or case was done.
New York is a one party state, however some courts will not admit
an interview with a witness to an event if they were not informed
they were being recorded. Apparently the judge may use his
Pennsylvania requires the consent of all parties. 18 Pa. Cons.
Stat. Ann. Sec. 5704(4) with the following exception: any individual
may record a phone conversation without the other party's consent
- The non-consenting party threatens the life or physical well
being of the consenting party, or any member of his/her family.
- The non-consenting party commits any criminal action (the
statute specifically uses the example of telling the consenting
party that they have marijuana they want the consenter to buy, but
does state ANY criminal act).
Felony penalties may be imposed for violation of the Pennsylvania
Connecticut joined the ranks of two-party consent about 3 years
ago. The State Police there is quite diligent in enforcing the law.
Ironic, since they were the ones responsible for the law going into
effect by illegally recording the telephone calls of prisoners at
the individual barrack when arrested.
Massachusetts requires consent of al parties unless another
exception applies (Massachusetts Gen. Laws Ann. ch. 272, Sec. 99).
Telephone equipment, which is furnished to a phone company
subscriber and used in the ordinary course of business, is excluded
from the definition of unlawful interception devices (Id. at
99(B)(3)). Office intercommunication systems used in the ordinary
course of business are similarly exempt (Id. at 99(D)(1)(b)). The
criminal penalty is a fine of up to $10,000, imprisonment for up to
five years, or both. In civil litigation, an injured party may
recover actual and punitive damages as well as costs and fees. It is
a separate violation to divulge or use the information garnered
through unlawful interception and an additional penalty of up to two
years in prison or $5,000 may be imposed on this count.