Wiretapping is the process of electronically intercepting the electronic signal of associated with a telephone call. Electronic eavesdropping is conducted by electronically recording or transmitting a conversation in order to monitor that conversation. Federal and state laws restrict the use of wiretapping and electronic eavesdropping by private individuals.
Federal wiretap law applies to landline, cordless and wireless telephone conversations. Federal law requires that at least one party to a telephone conversation agree to the recording of the conversation. This means that as long as you are a party to call, your consent is sufficient for the call to be legally recorded. However, a person may not record a telephone conversation if the recording is for a criminal or tortious purpose.
Most states' laws mirror this federal requirement, while others require all parties to the call consent to the recording of a conversation. The states requiring all parties to consent are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.
Sometimes it is unclear which law applies to a conversation. The applicable law depends upon where the call originates, the reason for the recording of the conversation, and who places the telephone call.
Liability and Penalties
A person who violates the federal or state recording laws may be held liable civilly for damages or prosecuted criminally. A person may violate these laws when he is not a party to the call, proper consent is not obtained, and it is a conversation that one could not naturally overhear. Additionally, the Electronic Communications Privacy Act makes it illegal to disclose the contents of an illegally obtained recording.
Interstate Telephone Calls
When making and recording telephone calls from one state to another, a person should be aware of each state's laws regarding the recording of telephone conversations. For example, the state in which the telephone call originates may provide that only one person need consent to the recording of the conversation. However, the state in which the recipient of the telephone call is located may have an all-party consent statute. In those cases, a party who wishes to sue for violation of the consent statute would choose to sue under whatever state law is more favorable to his position.
While federal consent law may apply to and preempt state laws for telephone calls placed between states, this issue has not been addressed. At any rate, a state is likely to take the position that it can enforce its own state laws.
Federal Communication Commission (FCC)
The FCC has requirements covering the recording of telephone conversations. The FCC requirements apply only to telephone companies, but the telephone companies are required to impose similar rules upon the public using the carriers' telephone lines. The carrier may revoke the telephone service of any person failing to comply with these requirements.
The FCC requires that a person recording an interstate telephone conversation either obtain the consent of all parties to the conversation, employ an announcement at the beginning of the conversation indicating that the conversation will be recorded, or use an intermittent beep tone throughout the conversation signaling the conversation is being recorded.
Federal and state laws, as well as FCC regulations, impose requirements upon private individuals seeking to record a telephone conversation. Most states have a one party consent rule, meaning that at least one party must consent to the recording, while a minority of states has a two party or all party consent rules, requiring all parties to the conversation to consent to the recording of a telephone call.