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Can You Tape? Learn the rules.

This chart sets forth the applicable law regarding whether telephone conversations may be lawfully recorded. Remember that unless the caller and the called party are in the same state – then only that state’s law would apply – the interstate call actually implicates three bodies of law, federal law, the law of the calling-party’s state, and the law of the called- party’s state. Each law must be obeyed.

The federal statute convering the interception and disclosure of wire communications is codified at 18 U.S.C. § 2511. The statute is the blueprint for many of the state statutes in this area of the law. It requires one-party consent and states it is not unlawful “for a person not acting under the color of state law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortuous act in violation of the Constitution or laws of the United States or of any state.” 18 U.S.C. §2511(d).

As to the individual states, each can be grouped in one of two categories. Specific statute citations for each state follow.

One Party Consent States Two Party Consent States
Alabama New Mexico California
Alaska New York Connecticut
Arizona North Carolina Delaware
Arkansas North Dakota Florida
Colorado Ohio Maryland
District of Columbia Oklahoma Massachusetts
Georgia Oregon Nevada (see other statute)
Hawaii Rhode Island (see case law) New Hampshire
Idaho South Carolina (no statute, see case law) Pennsylvania
  South Dakota Vermont
Indiana Tennesee Washington
Iowa Texas Illinois
Kansas Utah
Kentucky Virginia
Louisiana West Virginia
Maine Wisconsin (see other statute)
Michigan (see other statute) Wyoming
Minnesota
Mississippi
Missouri
Montana
Nebraska
New Jersey

 

A further explication of the relevant law is as follows:

Alabama Ala. Code § 13A-11-30(1) The Statutory definition of eavesdropping excludes the recording of a conversation with the consent of one party. Thus, the citizen has a right to record his own conversations.
Alaska Alaska Stat. §§ 42.40.300(a) & 42.20.310(a)(1) Statute does not prohibit the use of an eavesdropping device to record a private conversation when there is the consent of “a party to the conversation.” Accord Palmer v. State , 604 P. 2d 1106, 1108 n. 5 (Alaska 1976)(finding the statute was clearly intended to prohibit third-party eavesdropping and is not applicable to a situation where one of the participants recorded the conversation.)
Arizona Ariz. Rev. Stat. Ann. § 13-3005 A party is not prohibited from intercepting oral communications.
Arkansas Ark. Code Ann. § 5-80-120(a) It is lawful to record a communication if one is a party to the communication or has received the prior consent of a party to the communication.
California Cal. Penal Code § 632(a) Statute prohibits the recording of confidential communications without “the consent of all parties.” Evidence obtained in violation of this section may not be used in any judicial proceeding. This prohibition is confined to confidential communications, defined by statute as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties there to,” but does not include communications made under any “circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”
Colorado Colo. Rev. Stat. § 18-9-303(1) Statute does not prohibit the recording of a conversation by either a “sender or intended receiver” of a telephone communication.
Connecticut Conn. Gen. Stat. Ann. § 52-570d(a) Statute creates a civil cause of action for any person whose telephone conversation is recorded unless the person recording the conversation received the “consent of all parties to the communication.” Consent must be obtained either in writing or at the beginning of the recorded conversation.”
Delaware Del. Code. Ann. tit. 11, § 1335(a)(4) It is a violation of privacy (both a criminal misdemeanor and civilly actionable) to intercept a telephone conversation without the consent of all parties.
District of Columbia D.C. Code. Ann. § 23-542(b)(3) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Georgia Ga. Code Ann. §§ 16-11-62 Statute allows a party to a communication to record the communication. Accord Sheppard v. 16-11-66(a)Reid, 402 S.E.2d 793,793-94 (Ga. Ct. App. 1991)
Hawaii Haw. Rev. Stat. §§803-42(b)(3) & 711-1111(1)(d) It is neither invasion of privacy nor eavesdropping to record a telephone conversation if a party to the conversation.
Illinois 720 ILS 5/14-2″(a) Statute prohibits recording a telephone conversation without the consent of “all parties to [the] conversation.” But, Illinois courts have found that the recording of a conversation by a party to the conversation is not a violation of the statute even if another party to the conversation is unaware of the recording. People v. Jansen, 561 N.E.2d 312, 314 (Ill. App. Ct. 1990).
Indiana Ind. Code Ann. § 35-33.5-1-5(2) Statute allows the recording of a telephone conversation by either the sender or receiver of the communication
Iowa Iowa Code Ann. §§ 727.8 & 808B.2(2)(c) Statute allows a sender or receiver to record a telephone conversation
Kansas Kan. Stat. Ann. §§ 21-4001(a)(3) & 21-4002(a)(1) It is neither invasion of privacy nor eavesdropping to record a telephone conversation if the recording is accomplished with the consent of either the sender or receiver of the communication. Accord State v. Norris, 502 P .2d 817, 823 (Kan. 1972)
Kentucky Ky. Rev. Stat. Ann. § 526.010 To avoid falling under the eavesdropping statute the consent of at least one party to the telephone conversation must be received
Minnesota Minn. Stat. Ann §626A.D2 subd. 2(d) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication
Mississippi Miss. Code Ann. §41-29-531(e) Statute exempts from civil liability the interception of a communication if the interceptor is a party to the communication or has received the prior consent of a party to the communication
Missouri Mo. Ann. Stat. § 542.402(2)(3)(Supp.) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication
Montana Mont. Code Ann. § 45-8-213 It is a violation of privacy in communications to record a conversation “without the knowledge of all parties to the conversation.” But, Montana case law indicates, at least in a criminal setting, that recording a telephone conversation when one of the participants consents is permissible. State v. Coleman , 616 P.2d 1090, 1096 (Mont. 1980). see also State v. Brown 755 P.2d 1364, 1368 (Mont. 1988); State v. Cannon, 687 P .2d 705, 708 (Mont. 1984).
Nebraska Neb. Rev. Stat. § 86-702(2)(c) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Nevada Nev. Rev. Stat. §§200.620 & 48.077 It is unlawful to intercept a telephone conversation unless one party to the communication consents and an emergency situation exists making it impractical to get a court order permitting the interception. But, Nevada statutorily allows the admission in its courts of the contents of anycommunication lawfully intercepted under the laws of another jurisdiction if the interception occurred in the other jurisdiction.
New Hampshire N.H. Rev. Stat. Ann. §570-A:2(1-a) It is unlawful to record a telephone conversation without the consent of all parties to the conversation.
New Jersey N.J. Rev. Stat. §2A:156A-4(d) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
New Mexico N.M. Stat. Ann §30-12-1(C)&(E) It is lawful to record a telephone conversation with the consent of a “sender or intended recipient” of the conversation.
New York N.Y. Penal Law §250.00(1) It is lawful to record a telephone conversation if one is a party to the conversation or has received the consent of a party to the communication. Accord People v. Lasher, 447 N.E.2d. 70, 71 (N.Y. 1983).
North Carolina N.C. Gen Stat. §15A-287(a) It is lawful to intercept a communication with the consent of one party to the communication.
North Dakota N.D. Cent. Code §12.1-15-02(3)(c) It is a defense to prosecution for interception of wire communications that one was a party to the communication or one of the parties to the communication gave prior consent to the interception
Ohio Ohio Rev. Code Ann. §2933.52(B)(4) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Oklahoma Okla. Stat. Ann. tit. 13, §176.4(5) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Pennsylvania 18 Pa. Cons. Stat Ann. §5704(4) It is unlawful to intercept a telephone conversation unless all parties to the conversation give prior consent to the interception. Accord Commonwealth v. McCoy 275 A. 2d 28, 30 (Pa. 1971); Commonwealth v. Jung, 531 A.2d 498, 502-04 (Pa. Super. Ct. 1987).
Rhode Island R.I. Gen. Laws §11-35-21(c)(3) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
South Carolina No state statute South Carolina does not have a state statute on its books that regulates the interception of phone conversations. But, South Carolina case law indicates that when such issues arise in South Carolina courts, the courts will look to 18 U.S.C §2511. the federal statute on the interception and disclosure of wire communications. Under 18 U.S.C. §2511(2)(d), it is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication. See Mays v. Mays, 229 S.E.2d 725, 726-27 (S.C. 1976) (finding that 18 U.S.C. §2511(2)(d) “makes it clear that one party to a telephone conversation may lawfully tape the conversation without the other’s knowledge or permission and subsequently disclose [the conversation].”); Thompson v. State , 479 S.E.2d 808, 810-11 (S.C. Ct. App. 1996) (finding that taped telephone conversations between defendant and confidential informant did not violate 18 U.S.C. §2511 and the defendants right to privacy).
South Dakota S.D. Codified Laws Ann. §23A-35A-20(1) It is lawful to record a telephone communication if one is a sender or receiver of the communication or has received the consent of a sender or receiver of the communication.
Tennessee Tenn. Code Ann. §39-13-601(b)(5) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Texas Tex. Penal Code Ann. §16.D2(c)(4) It is an affirmative defense to prosecution for interception of wire communications that one was a party to the communication or one of the parties to the communication gave prior consent to the interception.
Utah Utah Code Ann. §§76-9-401(2), 76-9-403(1)(a), & 77-23a-4(7)(b) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Vermont No state statute There is no state statute on the books regulating the interception of telephone conversations. The case law is sparse in this area and has not yielded a clear indication of whether Vermont is a one-party or two-party consent state. In one case, the court indicated, without deciding the issue, that the federal statute on interception and disclosure of wire communications (18 U.S.C. §2511) was applicable in the state setting. State v. Fuller, 503 A. 2d 550, 551 (Vt. 1985) . The federal statute permits one party to a communication to intercept the communication. Another Vermont case indicates that, in a criminal setting , challenges to recorded conversations may be made on Fourth, Fifth, and Sixth Amendment grounds. State v. Kasper, 404 A.2d 85, 92-93 (Vt. 1979).
Washington Wash. Rev. Code Ann. §9.73.030(1)(a) It is unlawful to record a telephone conversation without the consent of all the participants in the conversation.
West Virginia W. Va. Code §62-1D-3(c)(2) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
Wisconsin Wis. Stat Ann. §§968.31(c) &885.365(1) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication. But, another section of the Wisconsin code states that evidence obtained by recording telephone conversations shall be totally inadmissible in civil actions in the courts of Wisconsin.
Wyoming Wyo. Stat. §7-3-602(b)(iv) It is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.

Content courtesy of AAPS Online

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