• Categories

  • Pages

  • Archives

“I Have Him Saying That On Audio!” Yes, But Is That Legal? State Recording Laws

Hands down, the best publicly available guide to electronic recording law is that provided by the Reporters Committee For Freedom Of The Press (RCFP). The guide also includes FCC rules and updates to laws already in existence.

Comprehensive yet easily absorbed and implemented, the RCFP’s Recorders Reporting Guide outlines the tape-recording laws and then options with state-by-state definitions and laws. For example, the tape-recording laws for New York:

New York

Summary of statute(s): An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents. N.Y. Penal Law §§ 250.00, 250.05 (McKinney 2012).

In-person conversations: The “mechanical overhearing of a conversation,” or the “intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present” is illegal. N.Y. Penal Law § 250.00. A state appellate court held that individuals who talk in a manner such that a non-participating third party may freely overhear the conversation may have no reasonable expectation of privacy in it. New York v. Kirsh, 575 N.Y.S.2d 306 (N.Y. App. Div. 1991). Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Electronic communications: The consent of at least one party to any telephone communication, including a cellular telephone communication, is required to record it. Sharon v. Sharon, 558 N.Y.S.2d 468 (N.Y. Sup. Ct. 1990). And because the provision of the statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. N.Y. Penal Law § 250.00.

Hidden cameras: It is a felony to photograph or record “the sexual or other intimate parts” of a person in a place where the person has a reasonable expectation of privacy, and to use a hidden camera, regardless of whether a person has a reasonable expectation of privacy, to “up-skirt” or “down-blouse,” or secretly photograph or record that person under or through his or her clothing. N.Y. Penal Law § 250.45. The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony offense. N.Y. Penal Law § 250.05.

Disclosing recordings: Disclosing the contents of a sealed communication that has been opened or read in violation of the wiretap law without the consent of the communication’s sender or receiver is considered “tampering with private communications,” a misdemeanor. N.Y. Penal Law § 250.25.

Straightforward language for a sometimes gray area of investigative rules.

BNI Operatives: Situationally aware.

As always, stay safe.

 

Tactical Trainer, Christian Swann, on NSA-resistant Communication Encryption.

(This week, we bring you an informative article on protecting sensitive client data from our friend and one-woman whirlwind of accomplishments, Christian Swann (featured below): Christian is a writer, mom, edged and blunt tool instructor for law enforcement and the military, and a risk mitigation security and vulnerability assessment specialist.

christianswann

Be vigilant about protecting sensitive  client data with these tools.

 I wrote an article not long ago about protecting our personal and sensitive important information. As some of you are well aware, once your data is out there, it’s out there. From the first click of the “check out now” button, you are being traced, watched and analyzed. From how much you spend, where you shop, to your favorite products to your prime shopping time – you’re being tracked. But that’s just one aspect of this passive monitoring.   Big Brother (e.g. and fact, as we now all know,  the NSA) has the capability and may not only watching but also listening, recording and even transcribing your confidential client conversations.

What about when it’s not only your information that is being tracked, but your clients’ confidential information is at risk of also being recorded? As a risk and security director of a multi-million dollar company, it is one of the toughest questions and concerns I have. I’m in constant contact with high-profile clients and sensitive data.

The good news for lawyers, corporations and medical professionals, concerned about maintaining their duty of confidentiality is that there are tools and safeguards now to help them.

Legal and risk management specialists, such as myself, need to be very aware of the possibility (or now, probability) of  their communications being intercepted by empowered governmental agencies.  Given the ever-changing, nebulous status of agency data collection laws, legal professionals have to deal with the ambiguity of this usage of collected data –  while contending with the secretive nature of intelligence agency operations, as well as the U.S. Foreign Intelligence Surveillance Court that oversees surveillance warrants.

Lawyers –  and anyone for that matter – should assume all of their conversations are subject to covert surveillance an should  take steps to protect confidential information.

I can’t stress enough that all pertinent emails, electronic messages and communications should be encrypted. There is no shortage of available encryption hardware and software, and I highly recommend using an encryption service such as ZixCorp or the open-sourced TrueCrypt: (Warning: this is an open source method and may not be as stable as desired.) Platform-specific devices are also available, such as, Apple’s FileVault.

“One can also purchase self-encrypting hard drives such as the Seagate Secure and already-encrypted flash drives – e.g.,  IronKey from Imation Corp.  and encryption software such as Symantec Whole Disk Encryption and Sophos Ltd.’s Safeguard“, says Lina Maini of Beacon Network Investigations, LLC.

As for passwords, I recommend a more secure method of authentication, such as security tokens or USB tokens.

Perhaps apparently, I’m a big fan of firewalls, and encrypting everything networked – from email to any and all telecomm technology apps.   I’ve also become a huge fan of the company Silent Circle. One of my favorite features of Silent Circle’s service is the ability to program burn settings.  I.e., one I’ve  sent any type of message: email, text, audio, it is then encrypted and will burn itself at the pre-set time. I’ve chosen.

Many people forget that one a voice message, text or email  has bent sent, that data  has to go through a provider, e.g.,  Apple, and is then is transferred back to the end-user, therefore leaving data footprints that can be copied.

For professionals that mainly communicate via phone, relief from eavesdropping is on its way. This month: Spanish smartphone company GeeksPhone and software company Silent Circle launch Blackphone, an encrypted smartphone that protects phone calls, text messages, emails and Internet browsing. Using VPN technology, Blackphone promises to be an NSA-resistant phone.I’m looking forward to ours arriving soon.

State-by-State Audio Recording Laws

audio recording

The NSA apparently does not need to follow audio, video and electronic communication recording laws but the rest of us must.  In this week’s Beacon Bulletin, we set forth a state-by-state guide of each jurisdictions’ audio recording laws.

This is only a general guide; therefore, it is highly recommended that you review a state’s entire recording law by clicking on the state name at the Reporters Committee for Freedom of the Press

Although most of these statutes address wiretapping and eavesdropping, they usually apply to electronic recording of any conversations, including phone calls and in-person interviews.

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. Federal law and most state laws also make it illegal to disclose the contents of an illegally intercepted call or communication. Some states have laws against criminal or tortuous purpose use of recordings, regardless of consent.

One-Party Consent Statutes

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.)

All-Parties Consent Statutes

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.

All-Parties Consent Statutes States:

California – Must have consent of all parties to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication. Conversations that occur at any public gathering where one could expect to be overheard, including any legislative, judicial or executive proceeding open to the public, are not covered by the statute.

Connecticut – It is illegal to tape a telephone conversation in Connecticut without the consent of all parties. Consent should be given prior to the recording, and should either be in writing or recorded verbally, or a warning that the conversation is being taped should be recorded. However, re-recording an illegally taped conversation by a third party may not violate the statute.

Florida – All parties must consent to the recording or the disclosure of the contents of any wire, oral or electronic communication in Florida. Consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. A federal appellate court has held that because only interceptions made through an “electronic, mechanical or other device” are illegal under Florida law, telephones used in the ordinary course of business to record conversations do not violate the law.

Illinois – An eavesdropping device cannot be used to record or overhear a conversation without the consent of all parties to the conversation. Standard radio scanners are not eavesdropping devices, according to a 1990 decision from an intermediate appellate court. In addition, a camera is not an eavesdropping device.

Maryland – it is unlawful to tape record a conversation without the permission of all the parties. State courts have interpreted the laws to protect communications only when the parties have a reasonable expectation of privacy, and thus, where a person in a private apartment was speaking so loudly that residents of an adjoining apartment could hear without any sound enhancing device, recording without the speaker’s consent did not violate the wiretapping law.

Massachusetts – It is a crime to record any conversation, whether oral or wire, without the consent of all parties in Massachusetts.

Michigan– Any person who willfully uses any device to overhear or record a conversation without the consent of all parties is guilty of illegal eavesdropping, whether or not they were present for the conversation. The eavesdropping statute has been interpreted by one court as applying only to situations in which a third party has intercepted a communication. This interpretation allows a participant in a conversation to record that conversation without the permission of other parties.

Montana – A reporter in Montana cannot tape record a conversation without knowledge of all parties to the conversation. Exceptions to this rule include the recording of: elected or appointed officials and public employees, when recording occurs in the performance of public duty; persons speaking at public meetings, and persons given warning of the transcription. If one party gives warning, then either party may record.

Nevada – Consent of all parties is required to tape a conversation in Nevada. Possible exception: If the interception is made with the prior consent of one of the parties to the communication and an emergency situation exists in which it is impractical to gain a court order before intercepting the communication, an exception may be made. This exception applies mostly to law enforcement officers who proceed without a warrant.

New Hampshire – It is a felony to intercept or disclose the contents of any telecommunication or oral communication without the consent of all parties. However, it is only a misdemeanor if a party to a communication, or anyone who has the consent of only one of the parties, intercepts a telecommunication or oral communication.

Pennsylvania – It is a felony to intercept, or get any other person to intercept any wire, electronic, or oral communication without the consent of all the parties. Consent is not required of any parties if the parties do not have a reasonable expectation of privacy for their non-electronic communication.

Washington – All parties generally must consent to the interception or recording of any private communication, whether conducted by telephone, telegraph, radio or face-to-face. There are several stipulations to this statute; therefore, it is highly recommended that you read the entire section for this state.

One-Party Consent Statutes States:

Alabama – The eavesdropping statute criminalizes the use of “any device” to overhear or record communications, whether the eavesdropper is present or not, without the consent of at least one party engaged in the communication.

Alaska– It is a misdemeanor in Alaska to use an eavesdropping device to hear or record a conversation without the consent of at least one party to the conversation. The state’s highest court has held that the eavesdropping statute was intended to prohibit only third-party interception of communications and thus does not apply to a participant in a conversation.

Arizona – An individual must have the consent of at least one party to a conversation in order to legally intercept a wire or electronic communication, including wireless and cellular calls. Utilizing a device to overhear a conversation while not present, without the consent of a party to that conversation, is also illegal. Consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy for that communication.

Arkansas – Intercepting or recording any wire, oral, cellular or cordless phone conversation is illegal in Arkansas, unless the person recording is a party to the conversation, or one of the parties to the conversation has given prior consent.

Colorado – Recording or intercepting a telephone conversation, or any electronic communication, without the consent of at least one party to the conversation is a felony. Recording a communication from a cordless telephone, however, is a misdemeanor. However, nothing in these statutes “shall be interpreted to prevent a news agency, or an employee thereof, from using the accepted tools and equipment of that news medium in the course of reporting or investigating a public and newsworthy event.” Additionally, a person may use wiretapping or eavesdropping devices on his own premises for security or business purposes, if reasonable notice of the use of such devices is given to the public.

Delaware – There is some conflict with regards to whether a party to a conversation can record the communication without the other party’s consent. Delaware’s wiretapping and surveillance law specifically allows an individual to “intercept” any wire, oral or electronic communication to which the individual is a party, or a communication in which at least one of the parties has given prior consent. However, a Delaware privacy law makes it illegal to intercept “without the consent of all parties.” The wiretapping law is much more recent, and at least one federal court has held that, even under the privacy law, an individual can record his own conversations.

District of Columbia – An individual may record the contents of a wire or oral communication if he or she is a party to the communication, or has received prior consent from one of the parties.

Georgia – Secretly recording or listening to a conversation held in a private place, without the consent of all parties, whether carried out orally or by wire or electronic means, is a felony invasion of privacy under Georgia law. However, the law expressly provides that it does not prohibit a person who is a party to a conversation from recording, and allows recording if one party to the conversation has given prior consent.

Hawaii – Any wire, oral or electronic communication (including cellular phone calls) can lawfully be recorded by a person who is a party to the communication, or when one of the parties has consented to the recording.

Idaho – Allows interception of wire or oral communications when one of the parties has given prior consent.

Indiana – Recording or acquiring of the contents of a telephonic or telegraphic communication must be made by either the sender or the receiver.

Iowa – If the person listening or recording is a sender or recipient of the communication, or is openly present and participating in the conversation, the communication can be recorded without the consent of the other parties. Individuals cannot legally record conversations while not present.

Kansas – Unlawful eavesdropping consists of secretly listening to, recording, or amplifying private conversations or using any device to intercept a telephone or wire communication “without the consent of the person in possession or control of the facilities for such wire communication.” The state’s highest court has interpreted the eavesdropping and privacy statutes to allow one-party consent for taping of conversations and has held that as long as one party consents to the conversation, the other party loses his right to challenge the eavesdropping in court.

Kentucky – It is a felony to overhear or record, through use of an electronic or mechanical device, a wire or oral communication without the consent of at least one party to that communication. A conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected by the statute.

Louisiana – A person can record any conversations transmitted by wire, oral or electronic means to which he is a party, or when one participating party has consented.

Maine – Interception of wire and oral communications is a crime. An interceptor is someone other than the sender or receiver of a communication who is not in the range of “normal unaided hearing” and has not been given the authority to hear or record the communication by a sender or receiver.

Minnesota – It is legal for a person to record a wire, oral or electronic communication if that person is a party to the communication, or if one of the parties has consented to the recording.

Mississippi – It is generally a violation of Mississippi law to intercept and acquire the contents of wire, oral or other communications with a mechanical or electronic device. The law specifically provides that if a person is a party to a communication, or has obtained consent from any one of the parties, no liability can be imposed.

Missouri – An individual who is a party to a wire communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents.

Nebraska – It is not unlawful to intercept a wire, electronic, or oral communication when the interceptor is a party to the conversation or one of the parties to the communication has given prior consent.

New Jersey – It is a crime to purposely intercept any wire, electronic, or oral communication. The statute makes an exception and allows interception if the person intercepting is a party to the communication, or if one party has given prior consent.

New Mexico – The crime of “interfering with communication” involves knowingly and unlawfully tapping any connection that belongs to another without consent of the person owning, possessing, or controlling the property. The Supreme Court of New Mexico held that the consent requirement in the statute refers to consent to the sending of the communication.

New York – Intercepting or unlawfully engaging in wiretapping without the consent of one party is a crime. Mechanical wiretapping is illegal under the statute only when the party whose wires are tapped is not a party involved in the conversation. Those who talk in the presence of a non-participating third party may have no expectation of privacy with respect to statements overheard by the third party. These laws apply to conversations conducted over cellular or cordless phones.

North Carolina – Without the consent of at least one party to the communication, it is a felony to willfully intercept, endeavor to intercept, or get any other person to intercept any wire, oral, or electronic communication or to use any device, which transmits by radio, wire, or cable, to do so. In interpreting the meaning of “consent,” an appellate court determined that implied consent to interception occurs when one party is warned of monitoring and yet continues with the conversation. “Electronic communication” does not include any communication from a tracking device.

North Dakota – Anyone who is a party to a conversation or who has obtained consent from one party to the conversation may legally record or disclose the contents of any wire or oral communication.

Ohio – It is not a crime to intercept a wire, oral, or electronic communication if the person recording is a party to the conversation, or if one party has consented to taping.

Oklahoma – A person may intercept a wire, oral, or electronic communication when the person is a party to the conversation or when one party to the conversation has given prior consent.

Oregon – It is illegal for a third party to intercept, attempt to intercept, or get any other person to intercept any wire or oral communication without the consent of any parties to the conversation. Unless one is a party to the conversation or has received consent from one of the parties, it is illegal to obtain any part of a telecommunication or a radio communication. However, courts have ruled that one cannot use a device to record a conversation unless all parties of the conversation are informed.

Rhode Island – Any person who intercepts, attempts to intercept, or gets any other person to intercept any wire, electronic, or oral communication is breaking the law. Under the statute, consent is not required for the taping of a non-electronic in person communication uttered by a person who does not have a reasonable expectation of privacy in that communication. The state’s highest court has expressly recognized that the law allows the recording of conversations with the consent of one party only.

South Carolina – One party can consent to the recording of a wire, electronic or oral communication. Consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.

South Dakota – One can record an oral or wire communication without obtaining consent of all the parties if he is present to the communication. Additionally, a third party can record an oral or wire communication if one party consents. Consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.

Tennessee – A person who is a party to a wire, oral, or electronic communication, or who has obtained the consent of at least one party, can lawfully record a communication. Consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.

Texas – Oral, or electronic communication—including the radio portion of any cordless telephone call—can be recorded by anyone who is a party to the communication, or who has the consent of a party.

Utah – An individual legally can record any wire, oral or electronic communication to which he is a party, or when at least one participant has consented to the recording. Consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.

Virginia – An individual can record wire, oral, or electronic communications to which he is a party, or if one party to the communication consents. Consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.

West Virginia – Recording a wire, oral, or electronic communication, or disclosing its contents, is legal when the person recording is a party to the communication or has obtained consent from one of the parties.

Wisconsin – If the person who records the wire, electronic, or oral communication is a party to the conversation or has obtained prior consent from one party, he may lawfully record the communications. Consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.

Wyoming – It is legal for a party to a wire, oral, or electronic communication to record that communication, and it is legal for anyone to record with the consent of one of the parties to a communication. Consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.

Other: 

Vermont – There are no specific statutes in Vermont addressing interception of communications, but the state’s highest court has held that surreptitious electronic monitoring of communications in a person’s home is an unlawful invasion of privacy.

If you are unsure as to the  statutes definitions, please contact a knowledgeable attorney. 

BNI Operatives: Street smart; info savvy. 

As always, stay safe. 

 

%d bloggers like this: