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Federal & State Telephone Recording Laws

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Pay Phone TappedIn the last post about suing debt collectors that violate the law, one of Craig’s recommendations was to record your conversations with debt collectors as evidence they violated the FDCPA. In the comments, there was discussion about whether recording or taping telephone conversations was legal. I thought a post clarifying the issue would be valuable.

Federal law permits the recording of phone calls and “other electronic communications” with the consent of at least one party to the call. From a Federal perspective, as long as you consent to the recording, you can record it without telling the other parties on the call that you’re recording the call.

However, just because it’s permitted Federally doesn’t mean every state allows it. The states are separate into “one party consent” states and “all party consent” or “two party consent” states.

One Party Consent

Thirty-eight states and Washington D.C. allow you to record conversations without informing the other parties if you are involved in the conversation. I won’t list all thirty eight states because I list the twelve all party consent below. If the state isn’t on the list below, then it’s a one party consent state.

All Party Consent

Twelve states require that all parties in the call consent to the taping. Sometimes this is called “two party consent” but if you have three or more parties on the line, all have to consent to the recording. The twelve states are:

  • California
  • Connecticut
  • Florida
  • Illinois
  • Maryland
  • Massachusetts
  • Michigan
  • Montana
  • Nevada
  • New Hampshire
  • Pennsylvania
  • Washington

For specific state by state law, I recommend the website Can We Tape?, they have a summary of each state’s law as well as court rulings and interpretations. Their summaries will give you a good idea of what the law is in that state as well as specific statues you can research in case you want to double check their account.

Interstate Calls

What if the call is from Idaho, a one party consent state, to Maryland, an all party consent state? It’s best that you follow the laws of the more strict state because the plaintiff can opt to file suit in the state with the stricter law. Whether the court allows it is another matter, but to be on the safe side you want to follow the laws of the all party consent state.

Finally, it’s always illegal to record conversations in which you were not a part of.

I hope that clears up the issue of whether or not you can record telephone conversations as well as whether you need consent to do so.

(Photo: byungkyupark)

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17 Responses to “Federal & State Telephone Recording Laws”

  1. Craig Ford says:

    Jim,
    Thanks for this post. Even if you cannot record the conversation I think it is important to keep detailed notes and records. I suggest keeping a notebook beside your phone and write down the details of every business related call.

  2. daemondust says:

    So does the “This call may be recorded for quality control and training purposes” message that nearly every customer service call starts with mean I’m allowed to record in an all-party state?

    • codename_47 says:

      I would say yes. They gave you notice, and I have never seen a reciprocal duty to notify.

  3. CK says:

    In an all party state you just have to notify the other party that you are taping the call. a la “Be aware I’m recording our conversation.”

    If they choose to continue talking they are considered to have consented.

  4. BrianC says:

    Very interesting info. Thanks.

  5. Steve says:

    I’ve actually heard the other argument daemondust brought up as well. While I’ve never heard of it going to court, the argument was that the person on the other line (customer service lets say) knew that they were being recorded already. Since that was case, you recording the conversation was legal without informing them (I’m in PA btw).

    Have you heard of anything like this going to court?

    • Jim says:

      I haven’t but I don’t think that argument is valid because you have to notify the other party that you are recording the conversation, not that the conversation is being recorded. The laws are all written in a way that puts the burden of notification on the recorder, even if there are two. It seems silly but that’s how I’d interpret it.

      • daemondust says:

        What’s the difference between “This call may be recorded….” and “We allow you to record this call”? They’re playing lose with their corporate double speak. A literal interpretation of their phrasing would indicate they’re giving you permission to record.

        • :)

          Yeah, I think the problem is that they are incorrectly using the word “may” when they really mean to say “might”.

          • daemondust says:

            Exactly. It’s one of those set phrases that’s made it into the public lexicon, but nobody stops to think what they’re literally saying.

            Those that are sloppy with their phrasing, especially after it’s passed through ‘legal’, deserve what they get.

      • CK says:

        what?
        “you have to notify the other party that you are recording the conversation, not that the conversation is being recorded.”

        ?confused

  6. Good article you have here. It’s possible to get in a lot of trouble with unauthorized recordings. Have a great Thanksgiving too!

    John DeFlumeri Jr

  7. saladdin says:

    Silly question. How do shows like Crank Yankers get away with recording people? I’m sure they don’t let people in on the joke before calling and get permission.

    saladdin

  8. Chip says:

    I’ve been wondering about the consent issue myself when calling customer service lines. In California (where I am), the law states ‘The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.’ Wouldn’t a recorded announcement by the company I’m calling that states “this call may/might be recorded” automatically mean that this call no longer qualifies as a “confidential communication”?


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