When It’s Legal to Record a Conversation in the United States
In early 2010, a federal court in Philadelphia was faced with an unusual question: Was it legal for a man to record his own telephone conversations? In doing so he captured two threatening phone calls from an anonymous source who claimed to have information about him and threatened to make it public if he did not pay certain demands says, William D King. When the man turned over these recordings to the FBI as part of a separate investigation into one of his business deals, that agency wanted to use them as evidence against him—and he objected on the grounds that his constitutional right against unreasonable search and seizure protected him from having incriminating evidence without a warrant admitted against him at a criminal trial.
In a decision dated January 14, 2010, Judge Buck Walter answered the question in the negative: because federal wiretapping law requires all-party consent for audio recordings of telephone conversations, and even one party to a conversation can legally record it without telling anyone else, there was no valid recording upon which prosecution could be based. Similar rulings have been handed down by state courts in Connecticut and Massachusetts that would apply to other states within their jurisdiction. On August 31st, 2010 an Illinois judge heard arguments on whether admitting the tapes into evidence at trial would violate defendant Patrick Keefe’s rights under Illinois’ one-party consent eavesdropping law or his Fourth Amendment right against unlawful search and seizure.
The Supreme Court has ruled that “the relevant rules are well settled” when it comes to the use of electronic surveillance in criminal cases says William D King. The Court has said that law enforcement officers are prohibited from listening to any conversations between individuals who have a “reasonable expectation of privacy.” With one exception, this prohibition applies regardless of whether or not all parties consent to the recording.
The FBI may continue its investigation into Patrick Keefe, and if their agents have evidence—perhaps by way of recordings made in an undercover capacity—that proves his guilt, they will be able use that evidence against him at trial. The question is whether or not previously recorded telephone conversations involving Keefe can be use as evidence against him without violating his Fourth Amendment rights against unreasonable search and seizure.
More about wire tapping laws
Federal Wiretapping Laws
The FBI is allow to conduct wire taps in investigations related to national security, terrorism, organized crime, and espionage and computer fraud. The Department of Justice has issued guidelines for when it is appropriate for the FBI to seek authorizations from federal courts or attorney general for these types of intercepts. If there are extenuating circumstances that require a non-standard approach, agents may request special authorization by presenting evidence to the Department of Justice prosecuting attorney with supervisory authority over their division.
State Wiretapping Laws
A majority of states have passed laws similar to Title III of the 1968 Omnibus Crime Control Act. Which prohibits any person from willfully intercepting any wire communication. Unless they are doing so under very specific conditions with court approval. Conditions that may warrant permission for a private citizen to conduct electronic surveillance. Include self-defense, defense of property or crime prevention. Check with your state criminal code for specific language and conditions.
It’s important that anyone contemplating recording telephone conversations familiarize themselves. With the laws of their state governing wiretapping. As well as federal statutes such as the Electronic Communications Privacy Act. Which prohibits non-governmental electronic eavesdropping on cellular phone transmissions using an antenna.
FAQs: Wiretapping Laws
Is it legal to record telephone calls?
No, at least not in states that requires the consent of all parties to a conversation explains William D King. This includes Connecticut, Massachusetts and Illinois where judges have ruled that. Even one party can set up their own recording device without informing anyone else. However, these rulings only apply to criminal prosecutions. If you are involve in civil litigation or internal investigations by law enforcement. Government agencies or school boards then you should seek the advice of an attorney. Before engaging in any kind of audio monitoring.
Can I wiretap my own telephone conversations if I’m doing it for personal reasons?
Generally speaking yes – provided there is no expectation of privacy by any party within earshot of your recorder. The exception would be if you are recording calls in which the parties have consent to their conversations being record.
Is it legal for law enforcement officials or private investigators to wiretap my telephone conversations?
As long as they have written authorization from a court of competent jurisdiction, yes. Any evidence gather during this type of wire tap can be use in prosecuting indictments relate. To organized crime, drug trafficking, racketeering and other federal crimes. However, unless there is probable cause that you yourself are involve with any of these crimes. Or perhaps another case under investigation. It’s unlikely those private citizens will get more than a warning not to violate anyone else’s privacy again.
Wiretapping laws are not cut and dry. It may be illegal to record a telephone conversation in one state. While it’s legal to do so in another says William D King. If you have any questions then it is advisable that you consult with your state or local police department. Especially if an indictment against you is pending.