Tape-recording communications between two or more people is legal in some circumstances and illegal in others. Journalists use audio and videotape to record unsuspecting people, and law enforcement officials sometimes eavesdrop on conversations between people to use as evidence in a criminal trial. Knowing the law in their state helps them negotiate the legal boundaries of tape recording.
The federal law on recording another individual in person, on the telephone or via another communication device is the one-party consent rule. As long as one person in the conversation is aware that the recording is going on, then it is a legal recording. However, recording a private conversation without the knowledge of either party is illegal and an invasion of privacy.
Most states have adopted the federal one-party consent law, but 12 states require all parties to be aware that the recording is going on. These states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. According to the Reporters Committee for Freedom of the Press, in any state it is usually illegal to secretly record a conversation that you are not involved in that you could not naturally overhear.
Federal law allows recording of a conversation with one-party consent as long as it is not done for a criminal purpose. Many states have adopted the federal guidelines.
Criminal purpose includes situations such as a news organisation sending hidden cameras or recorders into a business to conduct an investigation with the intent of defaming the proprietor and not simply to report a story.
Expectation of Privacy
People who are recorded may claim that the person recording them was trespassing because they were not aware that the recording was going on. The law allows for protection of the recorded party in this instance if the recording took place in a location where the person had a reasonable expectation of privacy.
If the recording takes place on a public street or in an office building, it is unlikely that a court will rule that the person had a right to expect privacy. However, if a person is invited into someone's home and records what happens inside without the homeowner's knowledge, the homeowner is likely to succeed in a complaint that he or she had an expectation of privacy.
Eavesdropping means secretly listening in or recording a conversation in which the listener is not involved. This means that there can be no one-party consent, and a recording in this circumstance is illegal.
However, law enforcement officials are allowed to monitor phone or other communications if they have probable cause to suspect unlawful activity and they have obtained a court order. The order will usually define the length of time during which the officials can record and what specific information can be disclosed from the recordings.