Know The Law: Secretly Recording Your Conversations

April 9th, 2009 1:17 am  |  by  |  Published in Activism, Civil Liberties, Individual Responsibility, law, Liberty, privacy  |  4 Responses

Due to the recent TSA detainment audio being released for all to hear it begs the questions: Can I secretly tape my own conversations in my state? Are there federal laws that restrict this type of recording?

A bit of research revealed an excellent web site encompassing the laws for each state. The “Reporters Committee for Freedom of the Press” has a section on their web site called “Can We Tape?” While the site is geared towards journalists the laws apply to all of us when recording conversations without consent.

From the site:

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 and territories have adopted wiretapping statutes based on the federal law, although most also have extended the law to cover in-person conversations. Thirty-eight states and the District of Columbia permit individuals to record conversations to which they are a party without informing the other parties that they are doing so. These laws are referred to as “one-party consent” statutes, and as long as you are a party to the conversation, it is legal for you to record it. (Nevada also has a one-party consent statute, but the state Supreme Court has interpreted it as an all-party rule.)

Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Be aware that you will sometimes hear these referred to inaccurately as “two-party consent” laws. If there are more than two people involved in the conversation, all must consent to the taping.

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 naturally overhear. [Unless you are acting on behalf of the government, apparently.]

Also on the site is a quick glance table showing the laws for each state and a state by state summary of the law.

What about interstate communications? Can they be recorded? Yes, they can, but it is best to adhere to the state’s laws that are more restrictive to be safe. That is the advice given to reporters on the site, but it is a good method to follow for everyone.

So if you live in Virginia and you want to record your conversations with your crazy girlfriend who lives in Maryland you should get her consent before doing so to be safe from the law.

To all of the potential Steve Bierfeldt’s out there… know the law then record away!


  1. LibertarianMike says:

    April 9th, 2009 at 1:22 pm (#)

    These statutes seem to apply to "electronic communications" (i.e. wiretaps). But does that necessarily apply to face-to-face communications, such as in the Bierfelt case?

  2. marcg says:

    April 9th, 2009 at 3:48 pm (#)

    An excerpt from the quoted site:

    "though most also have extended the law to cover in-person conversations."


  3. Ernie Gurzler says:

    April 9th, 2009 at 5:54 pm (#)

    I would say record at anytime, just don't publish it, that is what is really at issue. I think any time a public officer is acting in his capacity as an officer he is fair game.
    This goes back to malum prohibitum versus malum per se , IE victimless so called crimes.

    Malum per se is a crime in itself, malum prohibitum is a crime just because some people calling themselves the government say it is so.

    Are you permitted to take shorthand of the conversation?, are you permitted to write down the conversation afterward ? I would say yes, so the fact that you record the conversation using a device powered by electricity rather than muscle power is BS.

    The only reason that the state has to use a malum prohibitum Rule not law is that it does not want to lose it's plausible deniability defense against misconduct and to use the benefit of belief in an authority figure on the other hand.

  4. JIM F says:

    May 17th, 2009 at 1:02 am (#)