When is Undercover Recording Legal?

Recording telephone calls and in-person conversations is a common practice of undercover private investigators as well as aggressive investigative journalists. Such recordings can make or break a case or investigation.  In fact, most private investigators view undercover recording as an indispensable tool in their arsenal. However, others don't use recordings because of the complex legal risks that it creates.

However, there are important questions of law that must be fully understood before developing a consistent policy about making and using undercover recordings. Both federal and state statutes govern the use of electronic recording equipment. The unlawful use of such equipment can give rise not only to civil lawsuits brought by the "harmed" parties, but also criminal prosecution is possible.

Accordingly, it is critical that investigators, lawyers and journalists fully understand all the laws that may apply to a given set of circumstances, and appreciate what their rights and responsibilities are when recording and disclosing communications.

Although many of the relevant statutes address wiretapping and eavesdropping (i.e., listening in on conversations of others without their knowledge), these same laws may apply to recording of any conversations, including phone calls and in-person discussions.

Federal law generally allows recording of telephone 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 this 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 expressly informing the other parties that they are doing so. These states are generally referred to as "one-party consent" states, and as long as the investigator (or the person doing the recording) is a party to the conversation, it is legal for him to record it.

Twelve other 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.

Regardless of the specific jurisdiction involved, 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 in a public place.

Additionally, complex legal concerns can arise when interstate telephone calls are recorded by one of the parties to the call. For example, an investigator located in New York State who records a telephone conversation without the consent of a party located in Illinois would not violate New York State law, but could be civilly and even criminally liable under Illinois law.

A court located in New York State may even apply Illinois' laws, depending on its "conflict of laws" rules. Therefore, an aggrieved party may choose to file suit or a criminal complaint in either jurisdiction, depending on which law is ultimately more favorable to the party's claim (and where jurisdiction lies).

Additionally, federal law may apply when the conversation is between parties who are in different states, although it is unsettled whether a court will hold in a given case that federal law preempts state law.

Therefore, in light of the complex laws governing electronic recording of conversations between private parties, private investigators are strongly advised to err on the side of caution when recording or disclosing an interstate telephone call.