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first, the question of whether or not to tape record a phone call seems like a
matter of personal preference. Some journalists see taping as an indispensable
tool, while others don’t like the formality it may impose during an
interview. Some would not consider taping a call without the subject’s
consent, others do it routinely.
there are important questions of law that must be addressed first. There are
both federal and state statutes governing the use of electronic recording
equipment. The unlawful use of such equipment can give rise not only to a
civil suit by the “injured” party, but criminal prosecution.
it is critical that journalists know the statutes that apply and what their
rights and responsibilities are when recording and disclosing communications.
most of these statutes address wiretapping and eavesdropping --
listening in on conversations of others without their knowledge --
they usually apply to electronic recording of any conversations,
including phone calls and in-person interviews.
majority of the states and territories have adopted wiretapping statutes based
on the federal law. Thirty-eight states and the District of Columbia permit an
individual to record a conversation to which they are a party without
informing the other party 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.
states require, under most circumstances, the consent of all parties to a
conversation. Those jurisdictions are California, Connecticut, Delaware,
Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, 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.
states have laws outlawing the use of hidden cameras in private places:
Alabama, California, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan,
Minnesota, New Hampshire, South Dakota, and Utah.
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, and provides the
legal citations for each wiretap statute. Some references to case law have
been provided in instances where courts have provided further guidance on the
law. Penalties for violations of the law are described, including criminal
penalties and civil damages --
money that a violator must pay to the subject of the taping. Instances
where the law includes cellular calls and the wireless portion of cordless
phone calls are also noted.
have questions about how the laws affect you? Journalists can always call the
Reporters Committee’s hotline at 800-336-4243 for further information.
by The Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Su.
1910, Arlington, Va. 22209.
1996 The Reporters Committee for Freedom of the Press. Special thanks to
Reporters Committee legal intern Jol Silversmith, legal fellows Tina Burnside,
Barbara Lerner, and Leslie Ann Reis, and interns Nancy Oth6n and Shannon Hahn