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

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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

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