Free speech creates a wonderful mess. People generally are free to let their words fly. Their words could be profound, mundane, offensive, or downright stupid. Cell phones and smart phones capable of recording sound, and other recording devices, makes it relatively easy to have those words caught on tape and exposed to the world. Donald Sterling recently found this out with the leak of a recording of him making racially charged comments.
The furor over his comments overshadows other commentators asking whether the recording was legal. State and federal wiretap laws, the right of privacy, and other factors outline when someone can record a conversation without facing liability. I will focus on the wiretap laws.
Is That a Digital Recorder in Your Pocket or are You Happy to See Me?
Getting everyone involved to knowingly consent to the recording of the conversation is a way to avoid violating the wiretap laws. How about doing it without everyone’s consent? Whether the wiretap laws require everyone to consent depends on whether the laws of a “one party” state or a “two party” state apply. In a “one party” state, at least one person known to be present in the conversation must consent to the recording. In a “two party” state, everyone known to be present in the conversation must consent to the recording. There are exceptions, such as law enforcement acting with a warrant or when a court order allows for the secret recording or monitoring. Just because you feel like doing it, or doing it could help you prove a point, are not likely to be exceptions.
Are You OK That I Secretly Recorded You or are You Happy to Sue Me?
Who remembers Linda Tripp of the Clinton-Lewinsky scandal in the 1990’s? Linda Tripp recorded phone calls she had with Monica Lewinsky, and those recordings caused a stir. However, at least one of them was in a “two party” state when Linda recorded the calls without Monica’s knowledge. Linda faced criminal charges for recording the calls without Monica’s knowledge.
Linda Tripp’s experience highlights an additional risk involved when recording phone calls. If the people on the call are in different states, whomever decides to record the call would be wise to check beforehand the laws of the state of each participant. What may be legal in one state may not be legal in another. It becomes more complicated if one of the participants is in another country.
Watch Out for “Gotcha!” Turning Into “Oh Fudge, What Have I Done?”
For anyone hot to record someone secretly – beware. Failing to follow the law can cause you real trouble. Technology is making it easier to capture the moment both in picture and in sound, but just because you can does not mean you should.
This post provides general information only and is not intended to create an attorney-client relationship or to be legal advice about a specific situation. Laws change and your situation may be different. You should consult with a licensed attorney for legal advice specific to your circumstances.