This guide provides a quick reference to the specific provisions of each jurisdiction’s wiretap law. It outlines whether one-party or all-party consent is required to permit recording of a conversation. In some instances, courts have provided further guidance on the law.
This is only a general guide; therefore, it is highly recommended that you review a state’s entire section by clicking on the state name at: http://www.rcfp.org/can-we-tape/state-state-guide
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.
At least 24 states have laws outlawing certain uses of hidden cameras in private places. Those laws can also be found on the above website.
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. (more…)