The topic of taped conversations, both in person and on the phone, has been in the news lately. Omarosa Manigault Newman’s account of recording both her firing by Chief of Staff John Kelly and a subsequent phone call with President Trump might lead people to believe that taping conversations is both widespread and legally unproblematic (if devious). However, secretly recording calls or conversations may be illegal depending on the circumstances.
Federal law allows you to tape a conversation if you are a party to that conversation or if you have obtained consent to record from someone who is a party to that conversation. Most other states and the District of Columbia apply similar rules to recording conversations. However, both federal law and some state laws impose some restrictions on such recordings. The federal Espionage Act prohibits recording or disclosing classified information. Further, in at least some circumstances, fourteen states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, Vermont and Washington) require the consent of all parties to a conversation before the conversation can be recorded. There are some exceptions to the consent requirement. For example, Illinois allows recording of a conversation without every party’s consent if the conversation occurs in a location that lacks a reasonable expectation of privacy (such as the middle of a street), while Oregon generally allows recording of phone conversations with just one party’s consent but requires the consent of all parties for the recording of face-to-face communications. Of course, all these rules require that, if you want to tape a conversation, you must either participate in the conversation yourself or make sure that at least one participant in the conversation knows what you are doing and allows it. In other words, you cannot record a conversation that you overhear, but to which you are not a party, with some limited and notable exceptions. In many states, you are permitted to record the conduct or speech of police officers or other public officials because their work is conducted in and for the benefit of the public. Although the trend in law is to allow recording of conversations, it is important to understand the law of your jurisdiction and any limitations that might apply.