What You Need to Know Before Secretly Recording Your Enemies

Given how often presidents and questionable political activist groups secretly tap into telephone conversations, this may seem acceptable. But is it? It turns out the answer is pretty tricky. If you are thinking of secretly recording a conversation with someone, you should probably read this first.

Whether you are recording a phone call, a one-on-one conversation, or trying to record other people’s conversations, it all comes down to consent and how it is determined by the federal government and the individual laws of each state. You might want to film the true nature of your enemy for everyone to hear, but here’s the thing: This is probably illegal.

What the federal law says

Under the Telephone Wiretapping Act 1968 (18 USC § 2511) , it is unlawful to secretly record any oral, telephone, or electronic message reasonably expected to be confidential. So, for example, recording a conversation with someone in a bedroom with a closed door about private property without their knowledge is technically a federal crime in the broadest sense of the word.

However, there are several exceptions to this law that create significant loopholes. The biggest of these is the “unilateral consent” rule, which states that you can record people in secret if at least one person in the conversation consents to the recording, or if the person making the recording is authorized by law to do so (for example, a police officer with a warrant ). If we go back to the recording in our bedroom, it means that you can record your conversation as long as one person – you – agree to it. Dastardly, huh? But here’s the catch: you have to really participate in this conversation. If you were just recording how two other people are talking while standing side by side and not speaking, you have no agreement from either side, and therefore it would be illegal.

State Laws May Supersede Federal Law

When it comes to recording conversations in the United States, federal law does not always apply. Eleven states have “two-way (or all-party) consent” laws, which means you can’t record conversations unless every single person in that conversation agrees. These states are:

• California
• Connecticut
• Florida
• Illinois
• Maryland
• Massachusetts
• Montana
• Nevada
• New Hampshire
• Pennsylvania
• Washington (not DC)

If we go back to the secret bedroom recording example, everyone in the room will have to agree to your recording if you are in one of the states listed above. But then it won’t be a secret record anymore, will it?

While state recording laws generally govern the legality of recording conversations, federal law prevails and overrides all state laws if it is deemed to be more confidential. Thus, even if a state allows secret recordings without any consent, federal law overrides that state’s laws.

Location, location, location

Another important aspect to consider is where you record your conversation. Federal wiretapping law promises “reasonable expectations” for privacy, so there is room for wiggle room. A closed bedroom in a private home is a reasonable place to expect privacy, so enrolling there can be risky, even with the consent of one party. However, if a party was being held in this house, things might be a little different. Judge Deborah S. Logan explains :

Does the person have reasonable expectations of privacy in a given situation, depending on the context: was the conversation in a public or private place? Did the person being recorded treat the topic as private? A person bragging about cheating on a friend in a business transaction at a party cannot subsequently object to the inclusion of the recording of that confession as evidence in a lawsuit filed by his former friend.

As you can see, public spaces open up a little new horizons. Secretly recording a conversation in a park or train station is perfectly legal as long as you are in a state of unilateral consent and participate in the conversation. But it is still illegal in a state of bilateral agreement.

And the definition of “safe places to write” changes from state to state, from case to case. Public spaces are almost always safe, but the definition of a public space can sometimes be lengthy. For example, a private office may seem private, but some states, such as Florida , “do not recognize the absolute right to privacy in the office or workplace of a party.” This does not mean that you should secretly record your evil boss, as it can still be illegal depending on where you are, what they say and how .

You also need to be careful when recording phone calls, especially if you are talking to someone in a state with different laws than yours . If you live in New York, a one-party state, and want to record a telephone conversation with someone in California, a two-way state, you need to obtain their consent in addition to the consent you provided automatically. If you are using mobile phone call recording app, you need to double check that you are not recording all calls by default and accidentally taping people illegally.

Audio and video are not the same thing, but they can be linked together

Videorecording Law is different from Sound Recording Law — and that’s a topic for another time — but it’s important to know what the differences are. Generally, you have the right to record videos in all public places without consent. Public space is defined as any place where any member of the community has legal access, so public transport, parks, streets, etc. are fair game. However, video recording on private property is at the discretion of the property owner, private security or police, but secret video recordings are illegal on all private property in some states, such as California .

But here’s the most important part: recording a video of a public conversation may be legal, but recording audio along with that video isn’t if you’re in a two-way state. For example, video recording of your heated conversation with a moody salesperson is illegal in all bilateral states unless they give you permission to record it. Even in one-party states, the recording of such a video is questionable at best.

However, you have the right to record video and audio of police officers or government officials performing their duties if they are in public places . However, you can only do this as long as you do not interfere with these activities or violate other laws in the process.

What happens if you get caught

If you are arrested while secretly recording conversations, you face jail time, fines, or even legal action. The federal wiretapping law provides for a possible sentence of five years in prison with a fine of at least $ 500. But this is usually in addition to breaking state law. For example, an arrest in California (Cal. Penal Code, § 631.) could result in another year in prison and a $ 2,500 fine. In addition, most states allow a registered dissenting party to sue for damages, which can be much worse than other fines.

When in doubt, follow these tips.

If you’re thinking of recording a conversation, do yourself a favor and follow these tips from the Digital Media Bill Draft :

• Check your local laws first: always know what your state’s recording laws are before doing anything, and double-check the laws if you are recording calls from another state. Do you need universal consent? Or just yours? Where do you record?
• Know what consent looks like and get it before recording: consent is best when it is verbal and part of your recording, but also give proactive warning. Tell the other parties that you are going to tape your interaction, wait for their consent, start recording, then ask for permission to tape again.
• Don’t be smart: I know you would probably like to catch a cheater red-handed or tape your boss sexually stalking you, but such secret tapes can backfire. More often than not, the tapes are usually considered illegal and unacceptable in court, and then you are arrested for breaking the law and sued by the person you were hoping to remove.

It can be a tough pill, but secret tapes are rarely a good idea, no matter if you are the president or a copycat IP Get consent, do not hide your camera, microphone, or voice recorder, and do not try to incite people to reveal their deepest and darkest secrets lest they knew they were on tape or you would make yourself worse.

This story was originally published in May 2017 and updated on December 21, 2020 to bring content in line with the current Lifehacker style.