All About Wire Tap and Phone Recording Laws

What Does Federal and State Law Say About Phone Call Recording?

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 in this country have adopted wiretapping statutes based on the federal law, although most also have extended the law to cover in-person conversations as well as phone conversations. Thirty-eight states and the District of Columbia allow the recording of conversations to which they are a party without informing the other parties that they are doing so. These are known as "single-party consent" statutes, and as long as you are a party to the conversation, it is legal for you to record it.

Despite Federal law and the "single-party consent" statutes of the majority of states, twelve states require the consent of all parties to a conversation. This is known as "dual-party consent." Obviously, under these same laws, if there are more than two people involved in the conversation, all must consent to the taping.

The twelve “dual-party consent” states are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.

Regardless of the state, it is almost always illegal to record a conversation to which you are not a party, do not have consent to tape, and could not overhear naturally. Federal Law and most state laws also make it illegal to disclose the contents of an illegally intercepted call or communication. Criminal penalties are applied to violations in forty-nine states, Vermont being the only exception. In terms of the potential for Civil Suits under various statutes, Federal Law, as well as Thirty-Five states, have statutes that allow civil suits in specific cases.

Do the Federal and State Laws affect Cell Phones?

With the growth of cellular technology, the Federal Wiretap Law was amended in both 1986 and 1994 to expand the definition of electronic communications to include cellular and cordless phone conversations. Under the statute, cellular and cordless phone conversations can be recorded with the consent of one party.

The Federal Law was changed to accommodate the differences between the cellular telephone system and the traditional telephone system, which transmits communications by wire or cable.

In addition to the federal law, the FCC implemented a rule that prohibits eavesdropping on private cellular telephone conversations. The rule states that a person who is not a party to the conversation may not use a device to overhear or record the private conversations of others unless such use is authorized by all of the parties involved in the conversation.

Many of the state laws specifically apply to cellular and cordless calls through broad and generalized text by covering all electronic communications, which also cover cellular and cordless communication.

What Role Does The FCC Have In Regulating Phone Call Recording?

The Federal Communications Commission (FCC) has its own requirements concerning phone conversation taping. The FCC requires that an individual notify other parties to a call before using a tape recorder in an interstate call. This rule requires that the individual either obtain consent from all parties prior to making the call, notify the participants at the very beginning of the recording, or use a "beep tone" that is repeated regularly throughout the call to notify all involved of the recording.

The FCC rule only applies directly to local telephone companies, but those companies are required to impose similar rules on the public through their customer agreements. The only penalty that can be enforced by the local carrier is revocation of telephone service.

The broadcasting of a telephone conversation while failing to notify the other party involved in the conversation is subject to monetary fines as well as a reprimand under FCC regulations.

The "Phone Rule" states that a person who intends to broadcast a conversation or record a conversation for later broadcast with another party on the telephone does not need consent from the other party, but must simply inform the party at the beginning of the telephone call, that the conversation will be broadcast in the future.

The "Phone Rulev is enforced primarily against radio show hosts whose shows are more geared toward being offensive in their style of humor. This especially comes into play for those hosts who call people while on the air as part of a practical joke. However the "Phone Rule" does not stop there; it has been applied to all kinds of broadcasters, including respected journalists and other news gatherers.