Legal Info - 1-Party vs. 2-Party Consent Laws for Recording Phone Calls

[Saul_Goodman]

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Legal Disclaimer: The legal information below is for educational purposes only and does not constitute legal advice. If you are engaged in activities that may raise potential legal concerns, you should contact a lawyer in your jurisdiction for legal advice.
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*NOTE: I'm going to be editing this post going forward. This is just a very raw first draft with the basic info - Saul Goodman

See Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, Appendix B, 98-326 (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-326_12-3-2009.pdf.

***Laws Governing Recording Phone Calls (Consent Requirements Under State Law)*****
- Alabama: Ala.Code §13A-11-30 (one party consent)

- Alaska: Alaska Stat. §§42.20.310, 42.20.330 (one party consent)

- Arizona: Ariz.Rev.Stat.Ann. §13-3005 (one party consent)

- Arkansas: Ark.Code §5-60-120 (one party consent)

- California: Cal. Penal Code §§ 631, 632 (one party consent for police; all party consent otherwise), 632.7 (all party consent)

- Colorado: Colo.Rev.Stat. §§18-9-303, 18-9-304 (one party consent)

- Connecticut: Conn.Gen.Stat.Ann. §§53a-187, 53a-188 (criminal proscription: one party consent); §52-570d (civil liability: all party consent except for police)

- Delaware: Del.Code tit.11 §2402 (one party consent)

- Florida: Fla.Stat.Ann. §934.03 (one party consent for the police; all party consent for others)

- Georgia: Ga.Code §16-11-66 (one party consent)

- Hawaii: Hawaii Rev.Stat. §§ 711-1111, 803-42 (one party consent)

- Idaho: Idaho Code §18-6702 (one party consent)

- Illinois: Ill.Comp.Stat.Ann. ch.720 §§5/14-2, 5/14-3 (all party consent with law enforcement exceptions)

- Indiana: Ind.Code Ann. §35-33.5-1-5 (one party consent )

- Iowa: Iowa Code Ann. §808B.2 (one party consent)

- Kansas: Kan.Stat.Ann. §§21-4001, 21-4002 (one party consent)

- Kentucky: Ky.Rev.Stat. §526.010 (one party consent)

- Louisiana: La.Rev.Stat.Ann. §15:1303 (one party consent)

- Maine: Me.Rev.Stat.Ann. tit. 15 §709 (one party consent)

- Maryland: Md.Cts. & Jud.Pro.Code Ann. §10-402 (all party consent)

- Massachusetts: Mass.Gen.Laws Ann. ch.272 §99 (all parties must consent, except in some law enforcement cases)

- Michigan: Mich.Comp.Laws Ann. §750.539c (proscription regarding eavesdropping on oral conversation: all party consent, except that the proscription does not apply to otherwise lawful activities of police officers)

- Minnesota: Minn.Stat.Ann. §626A.02 (one party consent)

- Mississippi: Miss.Code §41-29-531 (one party consent)

- Missouri: Mo.Ann.Stat. §542.402 (one party consent)

- Montana: Mont.Code Ann. §§45-8-213 (all party consent with an exception for the performance of official duties)

- Nebraska: Neb.Rev.Stat. § 86-290 (one party consent)

- Nevada: Nev.Rev.Stat. §§200.620, 200.650 (one party consent)

- New Hampshire: N.H.Rev.Stat.Ann. §570-A:2 (all party consent)

- New Jersey: N.J.Stat.Ann. §§2A:156A-4 (one party consent)

- New Mexico: N.M.Stat.Ann. §§30-12-1 (one party consent)

- New York: N.Y.Penal Law §250.00 (one party consent)

- North Carolina: N.C.Gen.Stat. §15A-287 (one party consent)

- North Dakota: N.D.Cent.Code §§12.1-15-02 (one party consent)

- Ohio: Ohio Rev.Code §2933.52 (one party consent)

- Oklahoma: Okla.Stat.Ann. tit.13 §176.4 (one party consent)

- Oregon: Ore.Rev.Stat. §165.540 (one party consent for wiretapping and all parties must consent for other forms of electronic eavesdropping)

- Pennsylvania: Pa.Stat.Ann. tit.18 §5704 (one party consent for the police; all parties consent otherwise)

- Rhode Island: R.I.Gen.Laws §§11-35-21 (one party consent)

- South Carolina: S.C. Code Ann. § 17-30-30 (one party consent)

- South Dakota: S.D.Comp.Laws §§23A-35A-20 (one party consent)

- Tennessee: Tenn.Code Ann. §39-13-601 (one party consent)

- Texas: Tex.Penal Code §16.02 (one party consent)

- Utah: Utah Code Ann. §§77-23a-4 (one party consent)

- Virginia: Va.Code §19.2-62 (one party consent)

- Washington: Wash.Rev.Code Ann. §9.73.030 (all parties must consent, except that one party consent is sufficient in certain law enforcement cases)

- West Virginia: W.Va.Code §62-1D-3 (one party consent)

- Wisconsin: Wis.Stat.Ann. §968.31 (one party consent)

- Wyoming: Wyo.Stat. §7-3-702 (one party consent)

- District of Columbia: D.C.Code §23-542 (one party consent).”

[rbcp]

Even if you're in a one-party state, isn't there a federal law that says both parties have to know about the recording?  (Assuming you're calling from one state to the other.)

[Saul_Goodman]

Hey RBCP,
Actually, the federal rule is that only one-party consent is required. Here's a basic summary of the federal statute:

SUMMARY OF FEDERAL STATUTE (18 U.S.C. 2511)
At the heart of Title III/ECPA lies the prohibition against illegal wiretapping and electronic eavesdropping, 18 U.S.C. 2511(1), that bans:
• any person from
• intentionally
• intercepting, or endeavoring to intercept,
• wire, oral or electronic communications
• by using an electronic, mechanical or other device
• unless the conduct is specifically authorized or expressly not covered, e.g.

• one of the parties to the conversation has consent to the interception
• the interception occurs in compliance with a statutorily authorized, (and ordinarily judicially supervised) law enforcement or foreign intelligence gathering interception,
• the interception occurs as part of providing or regulating communication services,
• certain radio broadcasts, and
• in some places, spousal wiretappers.

"INTERCEPTION" DEFINED
Interception “means the aural or other acquisition of the contents” of various kinds of communications by means of “electronic, mechanical or other devices.” 18 U.S.C. 2510(4). This definition has been interpreted to include recording phone calls.

***IMPORTANT***
WHERE "INTERCEPTION" OCCURS
The definition in 18 USC 2510(4) raises questions of where, when, what, and how an "interception" takes place. Although logic might suggest that interception occurs only in the place where the communication is captured, the cases indicate that interception occurs as well where the communication begins, is transmitted, or is received. United States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006)(“an interception occurs where the tapped phone is located and where the law enforcement officers first overheard the call . . . United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992); accord United States v. Ramirez, 112 F.3d 849, 852 (7the Cir. 1997)(concluding that an interception occurs in the jurisdiction where the tapped phone is located, where the second phone in the conversation is located, and where the scanner used to overhear the call is located); United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996)”).

Hope this helps.

- Saul Goodman

[Saul_Goodman]

In other words, you should avoid calling to or from 2-party or all-party consent states.
1-party consent requires only your own consent to tape your phone calls. The other person is screwed.

[Saul_Goodman]

Here's an administrative law update to the statutory law posts above:

***ADMINISTRATIVE LAW
There are no FCC regulations related to individuals recording their own phone calls.

See FCC Website, Recording Telephone Conversations, at http://www.fcc.gov/guides/recording-telephone-conversations.

***QUOTED FROM THE FCC'S WEBSITE
"The Federal Communications Commission (FCC) currently has no rules regarding recording of telephone conversations by individuals, but federal and many state laws may prohibit this practice." From FCC Website, "Recording Telephone Conversations," available at http://www.fcc.gov/guides/recording-telephone-conversations.

I've listed the federal and state statutes above.

- Saul Goodman

[Saul_Goodman]

ONE MORE UPDATE

While the FCC doesn't have regs related to individuals recording their phone calls, they do have regulations related to telephone companies recording phone conversations.

Here is all the information related to relevant FCC regulations from the FCC's page on recording phone calls.

FROM http://www.fcc.gov/guides/recording-telephone-conversations.
"Recording Telephone Conversations

Background
The Federal Communications Commission (FCC) has adopted rules regarding the manner in which telephone companies may record wireline telephone conversations. The FCC currently has no rules regarding recording of telephone conversations by individuals, but federal and many state laws may prohibit this practice.

FCC’s Rules Regarding Telephone Company Recording of Interstate or International Wireline Telephone Conversations
The FCC protects the privacy of telephone conversations by requiring notification before a recording device is used to record interstate (between different states) or international wireline calls. Interstate or international wireline conversations may not be recorded unless the use of the recording device is:

    preceded by verbal or written consent of all parties to the telephone conversation; or
    preceded by verbal notification that 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,” that 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, a recording device can only be used if it can be physically connected to and disconnected from the telephone line or if it can be switched on and off."

This was quoted from the FCC Website, "Recording Telephone Conversations," http://www.fcc.gov/guides/recording-telephone-conversations.

Again, this just deals with FCC regulations as a matter of administrative law. There are still the federal and state statutes I've listed above in previous posts.

I hope this was not too lengthy and convoluted. 

- Saul

[rbcp]

That's cool, I thought the federal law said both parties had to consent, but I never really looked into it because I'm a rebellious lawbreaker that just doesn't care.  Guess it's a good thing that I moved from an all-party state to a one-party state a few years ago.

[Saul_Goodman]

Yeah, definitely.
By the way, I hope I'm not freaking out any PLA members with these legal posts. I'm just posting it as useful information--stuff that's good to know. There's almost certainly nothing to worry about for a number of reasons:

• Federal law is one-party consent, so federal law isn't implicated;
• State statutes of limitations on even the most serious felonies like rape usually don't run more than 7 years tops, and are less in many states;
• In addition, even the least busy police department in the country is likely way too busy to devote much time to hassling out-of-state prank phone callers.
• Extraditing a prank phone caller from one state to another to face charges for playing a harmless joke would be a ridiculous waste of time and money for almost any state.

As long as the pranker follows your rules [http://www.phonelosers.org/rules] and doesn't make threats or mention bombs, terrorism, or violence, there is little chance of a police department wasting resources on forming an interstate task force to hunt you down for making a prank call.

I didn't want to freak anyone out by posting this legal info, I just figured it was better to have all the law located in one place for PLA members.

I'm not a great hacksor like the other PLA members, but I do know the law in this area better than almost anybody.
I thought this would be the best way for me to contribute to the forums.

- Saul Goodman

[rbcp]

You're not freaking anyone out because these forums are DEAD.   

You're actually the 3rd person that's offered legal advice on PLA forums.  Years ago we had Yo Mama and a few years after that we had RougeClown.  They both got lives and left us.  Hopefully you won't let that happen to you.

[Saul_Goodman]

You're actually the 3rd person that's offered legal advice on PLA forums.  Years ago we had Yo Mama and a few years after that we had RougeClown.  They both got lives and left us.  Hopefully you won't let that happen to you.

Hey RBCP,
Thanks for letting me know about those other two members. I read the legal post by yo_mama and it is excellent. I'm also looking through rogueclown's posts for legal stuff too, but she has a ton of posts so I'm only halfway through.

After reading yo_mama's post, I feel I have to clarify that my posts above deal ONLY with the laws governing "recording phone calls." There are other laws that apply that criminalize harassment. I'll start a separate thread to start to address those issues.
- Saul

[Saul_Goodman]

You're actually the 3rd person that's offered legal advice on PLA forums.  Years ago we had Yo Mama and a few years after that we had RougeClown.  They both got lives and left us.  Hopefully you won't let that happen to you.

As for getting a life and leaving the Forums, I've been a pretty big fan of PLA since 2006. I'm not going anywhere.
The only reason I hadn't contributed to the Forums up until last weekend was because I never thought I had anything valuable to contribute.

Last weekend, I was listening to the Snow Plow Show while drinking boxwine and I knew I finally had to jump in and start contributing to the forums. The forums may be dead because of Facebook, etc., but they still serve as an excellent repository for useful prank call info. I hope some of this legal info will help less careful prank callers avoid potential legal headaches.

- Saul

[ravenmaddox]

Years ago we had Yo Mama and a few years after that we had RougeClown.  They both got lives and left us. 

I miss RogueClown 

[Saul_Goodman]

It sucks that she left. I read through a lot of her posts, looking for legal info to evaluate. She was a die-hard phone loser for years.
I'm sure she'll come back around, once they make a "Phone Losers" movie.