If you read a lot of mystery novels, you might find references to one of the characters in a book surreptitiously recording a telephone conversation. One of your thoughts might be whether it’s legal to do so. The answer, as in many legal situations, is that it depends upon the facts. But as we’ll see, even knowing all the facts, it may not be clear as to whether taping a particular call is legal, a criminal act, or an act that subjects the recorder to civil damages.
Recording Phone Conversations and Consent of the Parties
If all parties to the phone call consent to the taping, the issue of criminality goes away, as does the potential for a sustainable damage claim. But what happens if none of the parties, or only one of the parties, consents? The issue usually becomes one of state law:
- One-Party Consent States. Most of the states, around three dozen of them, including Arizona, are known as “one-party consent states.” That means that under the law of those states, it’s perfectly legal to tape, for example, your own telephone conversation with an unsuspecting – and non-consenting – third party. Arizona, under A.R.S. 13-3005, provides that intercepting (this includes taping) a telephone conversation is a class 5 felony unless you are a party to the conversation or have the consent of one of the parties. That’s a classic example of a “one-party consent” law.
- All-Party Consent States. A small number of states, however, require that taping a phone call is illegal unless all parties to the conversation consent. In California, taping without the consent of all parties can be charged as a felony.
The question becomes what happens when the parties are in different states at the time of the call.
Different States, Different Laws
Just when you think you’ve figured out what’s legal and illegal on taping phone calls, someone throws a wrench into the system. The problem is that interstate calls are a fact of everyday life, and in many cases, you may not even know what state the person you’re speaking to is in at the time of the call. What happens? Near chaos, on this issue, because the courts around the country have yet to agree on which state’s law applies.
If you want to stay on the safe side, don’t record your telephone calls, or at least make sure everyone consents before the tape starts rolling!
Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004