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Secret Audio Recordings in the United States

Secret Audio Recordings in the United States A business may want to monitor its employees. A

A business may want to monitor its employees. A spouse or lover may want to hear their partners phone calls. Parties to lawsuits may wish to record comments of their opponents. Reporters may want records of interviews.

There are state and federal limitations on recording conversations. Not following the law can have

serious consequences. The consequences may be criminal felony penalties including prison up to ten years. The civil penalties can include damages or exclusion of evidence gathered through illegal recordings.

exclusion of evidence gathered through illegal recordings. Federal law permits secretly recorded conversations when one

Federal law permits secretly recorded conversations when one party consents, "unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

Recording Electronic Communications

The Electronic Communications Privacy Act (ECPA) addresses access, use, disclosure, interception and privacy protections of electronic communications. The law covers most types of wire and electronic exchanges. Federal law defines electronic communications as any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects interstate or foreign commerce." ECPA prohibits unlawful access and certain disclosures of communication contents.

Recordings by Telephone Companies

The Federal Communications Commission (FCC) has rules about the way telephone companies may record wireline telephone conversations. The FCC currently has no rules regarding recording of telephone conversations by individuals, but federal and many state laws may prohibit this practice.

The FCC requires notice before recording interstate (between different states) or international wireline calls by telephone companies. Interstate or international wireline conversations may not be recorded unless the use of the recording device is:

preceded by verbal or written consent of all parties to the telephone conversation; orpreceded by

preceded by verbal or written consent of all parties to the telephone conversation; orpreceded by verbal notification that is recorded at the beginning, and as part of the call, by the recording party; oraccompanied by an automatic tone warning device, sometimes called a beep tone, that

automatically produces a distinct signal that is repeated at regular intervals during the course of the telephone conversation when the recording device is in use.Complaints about phone conversations

recorded in violation of these rules can be filed with the

FCC.

.Legally Recording Conversations

Federal law allows phone calls and other electronic communication to be recorded with the consent of at least one party to the conversation. A person taking part a conversation can legally record it. If a third party is recording a conversation then at least one person in the conversation must be aware of and consent to the recording.

State Laws on Recording Conversations

Of the 50 states,38 and the District of Columbia permit a participant to record a conversation without informing the other parties. The ECPA permits one-party-consent recording of most telephone conversations. Twelve states prohibit recording private conversations without the consent of all parties. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington

California has an exception. The consent of only one party is needed if certain criminal activity (kidnapping, extortion, bribery or a violent felony) is involved.

Most state statutes allow the recording of speeches and public conversations where parties may reasonably expect to be recorded. Exemptions also exist for law enforcement agencies and public utilities that monitor conversations and phone lines in the course of business. There are also exemptions for conversations recorded pursuant to proper judicial orders.

Check Local and Federal Law Before Recording

The principal rule is that it is illegal for a non-participant to record conversations or communications without the consent of at least one, if not all, of the participants. For calls between states, the law of both states must be followed. Because of significant possible penalties, no recordings should be made without a review of the applicable law.