Work Product of Matthiesen, Wickert & Lehrer, S.C. 1 LAST UPDATED 2/14/22
MATTHIESEN, WICKERT & LEHRER, S.C.
Hartford, WI ❖ New Orleans, LA ❖ Orange County, CA
❖ Austin, TX ❖ Jacksonville, FL ❖ Boston, MA
Phone: (800) 637-9176
gwickert@mwl-law.com
www.mwl-law.com
LAWS ON RECORDING CONVERSATIONS IN ALL 50 STATES
Individuals, businesses, and the government often have a need to record telephone conversations that relate to their business, customers, or
business dealings. The U.S. Congress and most states’ legislatures have passed telephone call recording statutes and regulations that may
require the person wanting to record the conversation to provide notice and obtain consent before doing so. Most states require one-party
consent, which can come from the person recording if present on the call. However, some states require that all parties to a call consent to
recording.
Laws governing telephone call recording are typically found within state criminal statutes and codes because most states frame call recording
as eavesdropping, wiretapping, or as a type of intercepted communication. State laws may not explicitly mention telephone call recording
because of these technical definitions. Accordingly, counsel may need to infer when and under what circumstances a state permits telephone
call recording by reviewing prohibited actions.
The big issue when it comes to recording someone is whether the jurisdiction you are in requires that you get the consent of the person or
persons being recorded. This begs the question of which jurisdiction governs when you are talking to a person in another state. Some states
require the consent of all parties to the conversation, while others require only the consent of one party. It is not always clear whether federal
or state law applies, and if state law applies which of the two (or more) relevant state laws controls. A good rule of thumb is that the law of the
jurisdiction in which the recording device is located will apply. Some jurisdictions, however, take a different approach when addressing this
issue and apply the law of the state in which the person being recorded is located. Therefore, when recording a call with parties in multiple
states, it is best to comply with the strictest laws that may apply or get the consent of all parties. It is generally legal to record a conversation
where all the parties to it consent.
One-Party Consent
If the consent of one party is required, you can record a conversation if you’re a party to the conversation. If you’re not a party to the
conversation, you can record a conversation or phone call provided one party consents to it after having full knowledge and notice that the
conversation will be recorded. Under Federal law, 18 U.S.C. § 2511(2)(d) requires only that one party give consent. In addition to this Federal
statute, thirty-eight (38) states and the District of Columbia have adopted a “one-party” consent requirement. Nevada has a one-party
consent law, but Nevada’s Supreme Court has interpreted it as an all-party consent law.
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All-Party Consent
Eleven (11) states require the consent of everybody involved in a conversation or phone call before the conversation can be recorded. Those
states are: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington.
These laws are sometimes referred to as “two-party” consent laws but, technically, require that all parties to a conversation must give consent
before the conversation can be recorded.
Wiretapping vs. Eavesdropping
Electronic “eavesdropping” means to overhear, record, amplify, or transmit any part of the private communication of others without the
consent of at least one of the persons engaged in the communication. It may involve the placement of a “bug” inside private premises to
secretly record conversations, or the use of a “wired” government informant to record conversations that occur within the informant’s
earshot. At common law, “eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and
thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet; or are indictable at the
sessions, and punishable by fine and finding of sureties for [their] good behavior,” 4 Blackstone, Commentaries on the Laws of England, 169
(1769).
“Wiretapping” involves the use of covert means to intercept, monitor, and record telephone conversations of individuals. It is an unauthorized
physical connection with a communication system at a point between the sender and receiver of a message. However, where a message is
overheard by a third person during its transmission and there has been no disturbance of the physical integrity of the communication system,
it is less clear that an illegal “interception” has taken place. Wiretapping is a form of electronic eavesdropping accomplished by seizing or
overhearing communications by means of a concealed recording or listening device connected to the transmission line. In the infamous
Olmstead v. United States decision, the court held that the Fourth Amendment’s search and seizure commands did not apply to government
wiretapping accomplished without a trespass onto private property. Olmstead v. U.S., 277 U.S. 43 (1928). This decision stood for 40 years.
“Intercepted communication” generally means the aural acquisition of the contents of any wire, electronic, or oral communication through
the use of any electronic, mechanical, or other device.
Consent
What constitutes “consent” is also an issue of contention when you are considering recording a conversation. In some states, “consent” is
given if the parties to the call are clearly notified that the conversation will be recorded, and they engage in the conversation anyway. Their
consent is implied. For example, we have all experienced calling a customer service department only to hear a recorded voice warning, “This
call may be recorded for quality assurance or training purposes.” It is usually a good practice for practitioners to let the witness know they are
recording the conversation to accurately recall and commemorate the testimony being given – such as during the taking of a witness’
statement.
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Exceptions
Nearly all states include an extensive list of exceptions to their consent requirements. Common exceptions found in a majority of states’ laws
include recordings captured by police, court order, communication service providers, emergency services, etc. Generally, it is permissible to
record conversations if all parties to the conversation are aware and consent to the interception of the communication. There are certain
limited exceptions to the general prohibition against electronic surveillance. For example, so-called “providers of wire or electronic
communication service” (e.g., telephone companies and the like) and law enforcement in the furtherance of criminal investigative activities
have certain abilities to eavesdrop.
Interstate/Multi-State Phone Calls
Telephone calls are routinely originated in one state and participated in by residents of another state. In conference call settings, multiple
states (and even countries) could be participating in a telephone call which is subject to being recorded by one or more parties to the call. This
presents some rather challenging legal scenarios when trying to evaluate whether a call may legally be recorded. A call from Pennsylvania to a
person in New York involves the laws of both states. Which state’s laws apply and/or whether the law of each state must be adhered to are
questions parties to a call are routinely faced with.
In the New York Supreme Court case of Michael Krauss v. Globe International, Inc., No. 18008-92 (N.Y. Sup. Ct. Sept. 11, 1995), reporters for
The Globe recorded a telephone conversation between a prostitute in Pennsylvania and Krauss, the former husband of television personality
Joan Lunden, who was in New York. Pennsylvania law requires two-party consent to record a telephone conversation, while New York law
requires only one-party consent. The court noted that in cases where New York law is in conflict with the laws of other states, New York courts
usually apply the law of the place of the tort, or more specifically, the place where the injury occurred. The Court held that under such
circumstances the New York wiretap law should apply, because any injury that was suffered by Krauss occurred in New York. Therefore, the
Court found that Krauss did not have a claim under New York law because the prostitute consented to having the phone conversation
recorded.
In Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914 (Cal. 2006), the California Supreme Court applied California wiretap law to a company
located in Georgia that routinely recorded business phone calls with its clients in California. California law requires all party consent to record
any telephone calls, while Georgia law requires only one-party consent. Applying California choice-of-law rules, the Court reasoned that the
failure to apply California law would “impair California’s interest in protecting the degree of privacy afforded to California residents by
California law more severely than the application of California law would impair any interests of the State of Georgia.”
When a telephone conversation is between parties who are in different states, it also increases the chance that federal law might apply.
Federal Law
In most cases, both state and federal laws may apply. State laws are enforced by your local police department and the state’s attorney office.
Federal wiretapping laws are enforced by the FBI and U.S. Attorney’s office. It is a federal crime to wiretap or to use a machine to capture the
communications of others without court approval, unless one of the parties has given their prior consent. It is likewise a federal crime to use
or disclose any information acquired by illegal wiretapping or electronic eavesdropping. Violations can result in imprisonment for not more
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than five years; fines up to $250,000 (up to $500,000 for organizations); in civil liability for damages, attorney’s fees and possibly punitive
damages; in disciplinary action against any attorneys involved; and in suppression of any derivative evidence. Congress has created separate,
but comparable, protective schemes for electronic mail (e-mail) and against the surreptitious use of telephone call monitoring practices such
as pen registers and trap and trace devices.
The Federal Communications Act of 1934 (47 U.S.C.A. §§ 151, et seq.) provides that no person “not being authorized by the sender shall
intercept any communication and divulge or publish the existence, contents, substance, purport, effect or meaning of such intercepted
communication to any person.” 47 U.S.C.A. § 605. In Nardone v. United States, 308 U.S. 338 (1939), it was held that this section prohibits
divulging such communications in federal criminal prosecutions and prohibits the use of information thus obtained in such prosecutions (the
“fruits of the poisonous tree” doctrine).
Evidence obtained by wiretapping in violation of § 605, is rendered inadmissible in a state court solely because its admission in evidence would
also constitute a violation of 47 U.S.C.A. § 605. Lee v. State of Fla., 392 U.S. 378 (1968). The mere interception of a telephone communication
by an unauthorized person does not in and of itself constitute a violation of § 605. Only where the interception is followed by the divulging of
the communication, as by introducing it into evidence, would there be a violation of § 605.
The Federal Wiretap Act, found at 18 U.S.C. § 2520, protects individual privacy in communications with other people by imposing civil and
criminal liability for intentionally intercepting communications using a device, unless that interception falls within one of the exceptions in the
statute. Although the Federal Wiretap Act originally covered only wire and oral conversations (e.g., using a device to listen in on telephone
conversations), it was amended in 1986 to cover electronic communications as well (e.g., emails or other messages sent via the Internet).
The Electronic Communications Privacy Act of 1986 (ECPA) is found at 8 U.S.C. § 2510 et seq. It prohibits the intentional actual or attempted
interception, use, disclosure, or “procure[ment] [of] any other person to intercept or endeavor to intercept any wire, oral, or electronic
communication.” The ECPA allows employers to listen to “job-related” conversations. It protects the privacy of wire, oral, and electronic
communications including telephone conversations (18 U.S.C. §§ 2510 to 2522). The ECPA gives employers almost total freedom to listen to
any phone conversation, since it can be argued that it takes a few minutes to decide if a call is personal or job-related. However, this exception
applies only to the employer, not the employee. This law only permits telephone call recording if at least one-party consents. However, call
recording is unlawful if the party consents with the intent to use the recording to commit a criminal or tortious act.
Exceptions to the Federal Wiretap Act’s one-party consent requirement include call recordings captured by:
• Law enforcement;
• Communication service providers, if the recording is necessary to deliver service, or protect property or rights;
• Federal Communications Commission (FCC) personnel for enforcement purposes;
• Surveillance activities under the Foreign Intelligence Surveillance Act (50 U.S.C. §§ 1801 to1813);
• Individuals, if they record telephone calls to identify the source of harmful radio or other electronic interference with lawful
telephone calls or electronic equipment; or
• Court order.
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The chart below sets forth the various wiretapping/electronic surveillance statutes and case decisions, for all 50 states. It does not address the
specifics of federal law.
STATE
CONSENT
AUTHORITY
EXPLANATION/ADDITIONAL INFORMATION
Federal
One Party
18 USC § 2511(2)(d)
Electronic Communications Privacy Act
“It shall not be unlawful under this chapter for a person not acting under color of 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 to commit any
criminal or tortious act in violation of the Constitution or laws of the U.S. or of any
State.”
Alabama
One Party
Ala. Code § 13A-11-30(1) and § 13A-11-31
Alabama statute defines eavesdropping as to “overhear, record, amplify or transmit any
part of the private communication of others without the consent of at least one of the
persons engaged in the communication.”
Alaska
One Party
Alaska Stat. Ann. § 42.20.300(a); Alaska Stat.
Ann. § 42.20.310(a)(1); Palmer v. Alaska, 604
P.2d 1106 (Alaska 1979).
Alaska law prohibits the use of an electronic device to hear or records private
conversations without the consent of at least one party to the conversation. Alaska’s
highest court has held that the eavesdropping statute was intended to prohibit third-
party inception of communications only; does not apply to participants in a
conversation.
Arizona
One Party
Ariz. Rev. Stat. Ann. § 13-3012(9);
§ 13-3012(5)(c)
An individual not involved in or present during a communication must have the consent
of at least one party to record an electronic or oral communication. Arizona also
permits a telephone “subscriber” (the person who orders the phone service and whose
name is on the bill) to tape (intercept) calls without being a party to the conversation
and without requiring any notification to any parties to the call.
Arkansas
One Party
Ark. Code Ann. § 5-60-120
An individual must have the consent of at least one party to a conversation, whether it
is in person or electronic.
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STATE
CONSENT
AUTHORITY
EXPLANATION/ADDITIONAL INFORMATION
California
All Parties
Cal. Penal Code §§ 632(a)-(e); 633.5, 633.6(a),
633.8(b); Kearney v. Salomon Smith Barney
Inc., 39 Cal.4
th
95 (Cal. 2006); Kight v.
CashCall, Inc., 200 Cal. App. 4
th
1377 (2011);
Cal. Pub. Util. Code Gen. Order 107-B(II)(A);
Air Transp. Ass’n of Am. v. Pub. Utilities
Comm’n of State of Cal., 833 F.2d 200 (9
th
Cir.
1987).
California has very specific laws regulating the recording of oral and electronic
communications. All parties must give their consent to be recorded. However, The
California Supreme Court has ruled that if a caller in a one-party state records a
conversation with someone in California, that one-party state caller is subject to the
stricter of the laws and must have consent from all callers. Although California is a two-
party state, it is also legal to record a conversation if an audible beep is included on the
recorder and for the parties to hear.
Exceptions (one-party consent required): (1) where there is no expectation of privacy,
(2) recording within government proceedings that are open to the public, (3) recording
certain crimes or communications regarding such crimes (for the purpose of obtaining
evidence), (4) a victim of domestic violence recording a communication made to
him/her by the perpetrator (for the purpose of obtaining a restraining order or
evidence that the perpetrator violated an existing restraining order), and (5) a peace
officer recording a communication within a location in response to an emergency
hostage situation.
California also has a wiretapping law making it illegal to make a recording with no
authorization. Cal. Penal Code § 632.
Colorado
Mixed
Colo. Rev. Stat. Ann. § 18-9-303 (1)
An individual not involved in or present during a communication must have the consent
of at least one party to record an electronic or oral communication.
Connecticut
Mixed:
One Party:
In-Person
All Parties:
Telephone
C.G.S.A. §§ 53a-187, -89;
C.G.S.A. § 52-570d
Connecticut is “mixed” in part because criminally, under Connecticut General Statutes §
53a-187, it’s a one-party consent state. It is against the law to record a telephone
communication or a communication made by a person other than a sender or receiver,
without the consent of either the sender or receiver. For civil cases, however, it is not a
one-party consent state. There are also different rules for in-person recording vs.
recording telephone conversations. Pursuant to C.G.S.A. § 52-570d, you are not allowed
to record an oral private telephone conversation without consent from all parties to the
conversation. So, it’s impermissible in a civil context, meaning there’s civil, not criminal,
liability. You can also get attorneys’ fees from the eavesdropper. To record a call you
must: (1) get consent of all parties in writing before the recording; (2) Recording must
include verbal notification which is recorded at the beginning of recording, and (3) You
must use automatic tone warning during the call. However, only one person's consent is
needed for recording in-person conversations. C.G.S.A. § 53a-187-189.
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STATE
CONSENT
AUTHORITY
EXPLANATION/ADDITIONAL INFORMATION
Delaware
All Parties
Del. Code Ann. tit. 11, § 2402(c)(4)
Del. Code Ann. tit. 11, § 1335(a)(4);
U.S. v. Vespe, 389 F. Supp. 1359 (1975).
State privacy laws state that all parties must consent to the recording of oral or
electronic conversations. U.S. v. Vespe holds that even under the privacy laws an
individual has the right to record their own conversations. Section 1335 says it is a class
G felony to intercept without the consent of all parties thereto a message by telephone
or other means of communication, except as authorized by law. Section 2402 provides
that it is “authorized by law” for a person communication where the person is a party to
the communication or where one of the parties to the communication has given prior
consent, unless the communication is intercepted for the purpose of a criminal act.
District of
Columbia
One Party
D.C. Code § 23-542(b)(3)
An individual may record or disclose the contents of an electronic or oral
communication if they are a party to said communication or it they have received prior
consent from one of the parties.
Florida
All Parties
Fla. Stat. Ann. § 934.03(3)(d), (2)(k)
All parties must consent to the recording and or disclosure of the contents of and
electronic, oral or wire communication. Exceptions: (one-party consent required) (1)
where there is no reasonable expectation of privacy, and (2) a child under 18 years of
age who is a party to the communication recording a statement by another party that
the other party intends to commit, is committing, or has committed an unlawful sexual
act or an unlawful act of physical force or violence against the child.
Georgia
One Party
Ga. Code Ann. § 16-11-66(a);
Ga. Code Ann. § 16-11-62
An individual has the right to record or disclose the contents of an electronic, oral or
wire communication that they are a party to or if one of the parties has given prior
consent to the recording of said communications.
Hawaii
One Party
Haw. Rev. Stat. § 803-42(3)(A)
An individual has the right to record or disclose the contents of an electronic, oral or
wire communication that they are a party to or if one of the parties has given prior
consent to the recording of said communications.
Idaho
One Party
Idaho Code Ann. § 18-6702(2)(d)
An individual has the right to record or disclose the contents of an electronic, oral or
wire communication that they are a party to or if one of the parties has given prior
consent to the recording of said communications.
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STATE
CONSENT
AUTHORITY
EXPLANATION/ADDITIONAL INFORMATION
Illinois
All Parties
(One-Party
for “private
electronic
communicat
ions”)
720 I.L.C.S. § 5/14-2(a) (Illinois Eavesdropping
Law); People v. Beardsley, 503 N.E.2d 346 (Ill.
1986); People v. Clark, 6 N.E.3d 154 (Ill. 2014).
Section 5/14-2(a)(1)(2) was amended in 2014
to make “eavesdropping” a felony if a person:
(1) Uses an eavesdropping device, in a
surreptitious manner, for the purpose of
overhearing, transmitting, or recording all
or any part of any private conversation to
which he or she is not a party unless he or
she does so with the consent of all of the
parties to the private conversation; or
(2) Uses an eavesdropping device, in a
surreptitious manner, for the purpose of
transmitting or recording all or any part of
any private conversation to which he or
she is a party unless he or she does so
with the consent of all other parties to the
private conversation.
(3) Intercepts, records, or transcribes, in a
surreptitious manner, any private
electronic communication to which he or
she is not a party unless he or she does so
with the consent of all parties to the
private electronic communication;
Section 5/14-1 defines “eavesdropping” (a
felony) as using any device capable hearing or
recording oral conversation or intercept or
transcribe electronic communications
whether such conversation or electronic
communication is conducted in person, by
telephone, or by any other means.
The use of an eavesdropping device is
surreptitious if it is done with stealth,
deception, secrecy, or concealment.
Therefore, it permits recording of
conversations in public places, such as
courtrooms, that no person could expect to
be private.
The law in Illinois is confusing and in flux. For years, § 5/14-2(a) made it a crime to use
an “eavesdropping device” to overhear or record a phone call or conversation without
the consent of all parties to the conversation, regardless of whether the parties had an
expectation of privacy. Illinois courts have ruled that “eavesdropping” only applied to
conversations that the party otherwise would not have been able to hear, thereby
effectively making it a one-party consent state. However, there still appears to be
confusion and debate over the law. The statute had repeatedly and controversially
been used to arrest people who have video-taped police. In People v. Clark, 6 N.E.3d
154 (Ill. 2014) and People v. Melongo, 6 N.E.3d 120 (Ill. 2014), the Supreme Court held
that § 5/14-2 made it a crime to knowingly and intentionally use eavesdropping devices
to hear or record all or any part of any conversation, unless done with consent of all
parties to conversation or authorized by court order, was unconstitutionally overbroad
on its face, declaring it unconstitutional.
On December 30, 2014, the statute was amended to permit recording of conversations
in public places, such as in courtrooms, where no person reasonably would expect it to
be private. The new statute draws a distinction between a “private” conversation and
other public communications. The new statute includes language indicating that in
order to commit a criminal offense, a person must be recording “in a surreptitious
manner.” It addressed a number of circumstances where there were no legitimate
privacy interests. The statute provides no guidelines or factors with regard to when an
expectation of privacy is reasonable. While the statute leaves open to debate whether a
particular “private conversation” falls within the purview of the revised law, some
argue that the new statute leaves no doubt that Illinois remains firmly within the
minority of “all-party” consent states. The amended statute requires that all parties to
an oral communication consent to the use of an eavesdropping device for that use to be
lawful.
On the other hand, by negative implication, the amended statute also appears to
establish a “one-party” consent rule for private electronic communications, by
prohibiting only someone who is not a party to a conversation from surreptitiously
using an eavesdropping device to intercept, record or transcribe such a communication
(e.g., telephone, video conference, etc.). A private electronic communication is defined
as “any transfer of signs, signals, writing, images, sounds, data, or intelligence ...
transmitted in whole or part by a wire, radio, pager, computer, electromagnetic, photo
or optical system, when the sending or receiving party intends the electronic
communication to be private under circumstances reasonably justifying that
expectation. Therefore, by negative implication, the revised statute appears to permit
someone who is a party to a telephone or a video conference to electronically record
the call without notifying any other party to the call or obtaining their consent.
A first offense is a Class 3 felony (maximum 2-5 years and $25,000 fine) and a
subsequent offense is a Class 2 felony (maximum 3-7 years and $25,000 fine).
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STATE
CONSENT
AUTHORITY
EXPLANATION/ADDITIONAL INFORMATION
Indiana
One Party
Ind. Code Ann. § 35-31.5-2-176
An individual has the right to record or disclose the contents of an electronic or
telephonic communication that they are a party to or if one of the parties has given
prior consent to the recording of said communications.
Iowa
One Party
Iowa Code Ann. § 808B.2 (2)(c);
Iowa Code Ann. § 727.8
An individual has the right to record or disclose the contents of an oral, electronic or
telephonic communication that they are a party to or if one of the parties has given
prior consent to the recording of said communications.
Kansas
One Party
Kan. Stat. Ann. § 21-6101(1);
Kan. Stat. Ann. § 21-6101(4)
Kansas law bars the interception, recording and or disclosure of any oral or telephonic
communication by the means of an electronic recording device without the consent of
at least one party or if they are a party to said communication.
Kentucky
One Party
Ky. Rev. Stat. Ann. § 526.020;
Ky. Rev. Stat. Ann. § 526.010
Kentucky law bars the interception, recording and or disclosure of any oral or
telephonic communication by the means of an electronic recording device without the
consent of at least one party or if they are a party to said communication.
Louisiana
One Party
La. Rev. Stat. Ann. § 15:1303(c)(4)
The Electric Surveillance Act bars the inception, recording or disclosure of and oral or
telephonic communication by the means of an electronic recording device without the
consent of at least one party or if they are a party to said communication.
Maine
One Party
Me. Rev. Stat. Ann. tit. 15, § 710
Maine law bars the interception, recording and or disclosure of any oral or telephonic
communication by the means of an electronic recording device without the consent of
at least one party or if they are a party to said communication.
Maryland
All Parties
Md. Code Ann., Cts. & Jud. Proc. § 10-402
(c)(3)
The Wiretapping and Electronic Surveillance Act holds that it is unlawful to:
(1) Willfully intercept, endeavor to intercept, or procure any other person to intercept
or endeavor to intercept, any wire, oral, or electronic communication;
(2) Willfully disclose, or endeavor to disclose, to any other person the contents of any
wire, oral, or electronic communication, knowing or having reason to know that the
information was obtained through the interception of a wire, oral, or electronic
communication in violation of this subtitle; or
(3) Willfully use, or endeavor to use, the contents of any wire, oral, or electronic
communication, knowing or having reason to know that the information was obtained
through the interception of a wire, oral, or electronic communication in violation of this
subtitle.
However, it is lawful to intercept a wire, oral, or electronic communication where the
person is a party to the communication and where all of the parties to the
communication have given prior consent.
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STATE
CONSENT
AUTHORITY
EXPLANATION/ADDITIONAL INFORMATION
Massachusetts
All Parties
Mass. Gen. Laws Ann. ch. 272, § 99(B)(4);
Mass. Gen. Ann. Laws ch. 272, § 99(C)(1)
The recording, interception, use or disclosure of any conversation, whether in person or
via wire or telephone, without the consent of all the parties is prohibited. However,
telephone equipment, which is furnished to a phone company subscriber and used in
the ordinary course of business, as well as office intercommunication systems used in
the ordinary course of business, is excluded from the definition of unlawful interception
devices.
Michigan
One Party**
Mich. Comp. Laws Ann. § 750.539(c); Sullivan
v. Gray, 117 Mich. App. 476, 324 N.W.2d 58
(1982).
The recording, interception, use or disclosure of any conversation, whether in person or
electronic or computer-based system, without the consent of all the parties is
prohibited.
**This looks like an “all party consent” law, but one Michigan court has ruled that a
participant in a private conversation may record it without violating the statute because
the statutory term “eavesdrop” refers only to overhearing or recording the private
conversations of others. The Michigan Court of Appeals interpreted that the
eavesdropping statute only applied to third-party inception of a conversation; a
participant in a communication does have the right to record the same. Michigan law is
often misinterpreted as requiring the consent of all parties to a conversation.
Minnesota
One Party
Minn. Stat. Ann. § 626A.02(d)
An individual has the right to record or disclose the contents of an oral, electronic or
telephonic communication that they are a party to or if one of the parties has given
prior consent to the recording of said communications.
Mississippi
One Party
Miss. Code. Ann. § 41-29-531(e)
An individual has the right to record or disclose the contents of an oral, telephonic, or
other communication that they are a party to or if one of the parties has given prior
consent to the recording of said communications.
Missouri
One Party
Mo. Ann. Stat. § 542.402(2)(3)
An individual has the right to record or disclose the contents of an oral or electronic
communication that they are a party to or if one of the parties has given prior consent
to the recording of said communications.
Montana
All Parties
Mont. Code Ann. § 45-8-213
It is unlawful to record an in person or electronic communication without the consent
of all parties except under certain circumstances namely elected or appointed public
officials or public employees when the recording occurs in the performance of an
official duty; individuals speaking at public meetings; and individuals given warning of or
consenting to the recording.
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Nebraska
One Party
Neb. Rev. Stat. § 86-290(2)(c);
Neb. Rev. Stat. § 86-276
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious
or criminal act. It is also lawful for an individual to record electronic communications
that are accessible to the general public.
Nevada
Mixed
One Party:
Oral
All Party:
Wire/Phone
Nev. Rev. Stat. § 200.620
Nev. Rev. Stat. § 200.650
Lane v. Allstate Ins. Co., 114 Nev. 1176, 969
P.2d 938 (1998).
It is unlawful to surreptitiously record any private in-person communication without the
consent of one of the parties to the conversation.
The consent of all parties is required to record or disclose the content of a telephonic
communication. Exception: emergency situation where a court order is not possible.
The Nevada Supreme Court held in Lane v. Allstate that an individual must have the
consent of all parties in order to lawful record a telephonic communication even if they
are a party to said communication.
New
Hampshire
All Parties
N.H. Rev. Stat. Ann. § 570-A:2(I-a); New
Hampshire v. Locke, 761 A.2d 376 (N.H.
1999).
It is unlawful to record or disclose the contents of any electronic or in-person
communication without the consent of all parties.
The New Hampshire Supreme Court held that an individual efficaciously consented to
the recording of a communication when surrounding circumstances demonstrate that
they knew said communication was being recorded.
New Jersey
One Party
N.J. Stat. Ann. § 2A:156A-4(d);
N.J. Stat. Ann. § 2A:156A-2
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious
or criminal act. It is also lawful for an individual to record electronic communications
that are accessible to the general public.
New Mexico
One Party
N.M. Stat. Ann. § 30-12-1(C)
The reading, interrupting, taking or copying of any message, communication or report is
unlawful without the consent of one of the parties to said communication.
New York
One Party
N.Y. Penal Law § 250.00(1);
N.Y. Penal Law § 250.05
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication.
North Carolina
One Party
N.C. Gen. Stat. Ann. § 15A-287(a)
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication.
North Dakota
One Party
N.D. Cent. Code § 12.1-15-02
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious
or criminal act.
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Ohio
One Party
Ohio Rev. Code Ann. § 2933.52(B)(4);
Ohio Rev. Code Ann. § 2933.51
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious
or criminal act.
Oklahoma
One Party
Okla. Stat. Ann. tit. 13, § 176.4;
Okla. Stat. Ann. tit. 13, § 176.2
Pursuant to the Security of Communications Act, it is not unlawful for an individual who
is a party to or has consent from a party of an in-person or electronic communication to
record and or disclose the content of said communication unless the person is doing so
for the purpose of committing a tortious or criminal act.
Oregon
Mixed
Or. Rev. Stat. Ann. § 165.540;
Or. Rev. Stat. Ann. § 165.535
It is not unlawful for an individual who is a party to or has consent from a party of an
electronic communication to record or disclose the contents of said communication. It
is unlawful to record an in-person communication without the consent of all parties
involved.
Pennsylvania
All Parties
18 Pa. Cons. Stat. § 5702 to § 5704;
Com. v. Smith, 136 A.3d 170, 171 (Pa. Super.
2016); Com. v. Spence, 91 A.3d 44, 44–45 (Pa.
2014).
It is unlawful to record an electronic or in-person communication without the consent
of all parties. However, “interception” of or mere listening in to a call using a telephone
is not prohibited because the term “electronic, mechanical or other device” does not
include a telephone. Using a cell phone’s “voice memo” application would be
considered a “device” and would be prohibited.
Rhode Island
One Party
R.I. Gen. Laws Ann. § 11-35-21;
R.I. Gen. Laws Ann. § 12-5.1-1
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious
or criminal act. An individual may also disclose the content of any electronic or in-
person communication that is common knowledge or public information.
South Carolina
One Party
S.C. Code Ann. § 17-30-30;
S.C. Code Ann. § 17-30-15
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication.
South Dakota
One Party
S.D. Codified Laws § 23A-35A-20;
S.D. Codified Laws § 23A-35A-1
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication.
Tennessee
One Party
Tenn. Code Ann. § 39-13-601;
Tenn. Code Ann. § 39-13-604;
Tenn. Code Ann. § 40-6-303
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious
or criminal act. An individual may also disclose the content of any electronic
communication that is readily accessible to the general public.
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Texas
One Party
Tex. Penal Code Ann. § 16.02;
Tex. Code Crim. Proc. Ann. art. 18.20
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious
or criminal act. An individual may also disclose the content of any electronic
communication that is readily accessible to the general public.
Utah
One Party
Utah Code Ann. § 77-23a-4;
Utah Code Ann. § 77-23a-3
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious
or criminal act. An individual may also disclose the content of any electronic
communication that is readily accessible to the general public.
Vermont
No Statute
or Definitive
Case Law
Vermont v. Geraw, 795 A.2d 1219 (Vt. 2002);
Vermont v. Brooks, 601 A.2d 963 (Vt. 1991).
There is no state statute that regulates the interception of telephone conversations.
The case law is also lacking in this area and there has been no clear indication as to if
Vermont is a one-party or all-party consent state. The state’s highest court has held that
surreptitious electronic monitoring of communications in a person’s home is an
unlawful invasion of privacy. Vermont v. Geraw, 795 A.2d 1219 (Vt. 2002). On the other
hand, the state’s highest court also has refused to find the overhearing of a
conversation in a parking lot unlawful because that conversation was “subject to the
eyes and ears of passersby.” Vermont v. Brooks, 601 A.2d 963 (Vt. 1991).
Virginia
One Party
Va. Code Ann. § 19.2-62
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication.
Washington
All Parties
Wash. Rev. Code Ann. § 9.73.030
Wash. Rev. Code Ann. § 9A.44.115(2)(a)
Lewis v. Washington, 139 P.3d 1078 (Wash.
2006).
It is unlawful for an individual to record and or disclose the content of any electronic of
in-person communication without the consent of all parties. Exceptions (one-party
consent required): (1) where there is no expectation of privacy, (2) recording
conversations of an emergency nature, such as the reporting of a fire, medical
emergency, crime or disaster, (3) recording communications that convey threats of
extortion, blackmail, bodily harm, or other unlawful requests or demands, (4) recording
communications which occur anonymously or repeatedly or at an extremely
inconvenient hour, or (5) recording communications which relate to communications by
a hostage holder.
West Virginia
One Party
W. Va. Code Ann. § 62-1D-3
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious
or criminal act.
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Wisconsin
One Party**
Wis. Stat. Ann. § 968.31;
Wis. Stat. Ann. § 968.27;
**Wis. Stat. Ann. § 885.365(1)
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious
or criminal act.
**Evidence obtained as the result of the recording a communication is “totally
inadmissible” in civil cases, except when the party is informed that the conversation is
being recorded and that evidence from said recording may be used in a court of law.
Wyoming
One Party
Wyo. Stat. Ann. § 7-3-702
It is not unlawful for an individual who is a party to or has consent from a party of an in-
person or electronic communication to record and or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious
or criminal act.
These materials and other materials promulgated by Matthiesen, Wickert & Lehrer, S.C. may become outdated or superseded as time goes by. If you should have questions regarding the
current applicability of any topics contained in this publication or any of the publications distributed by Matthiesen, Wickert & Lehrer, S.C., please contact Gary Wickert at gwickert@mwl-
law.com. This publication is intended for the clients and friends of Matthiesen, Wickert & Lehrer, S.C. This information should not be construed as legal advice concerning any factual
situation and representation of insurance companies and\or individuals by Matthiesen, Wickert & Lehrer, S.C. on specific facts disclosed within the attorney\client relationship. These
materials should not be used in lieu thereof in anyway.
