Monday, January 19, 2004

Recording Phone Call Laws By State

* Major update June 24, 2014
* Content & comment updates

* THESE LAWS &THIS FORUM APPLY ONLY TO TELEPHONE & CELLPHONE CALL RECORDING *

* I have deleted a lot of the redundant and "in article answered" questions. PLEASE READ this entire article (and comments) and do not skim. If you still have a question after reading this reference and ALL comments, I would love to answer your question. Please do not ask questions about face to face or video recording - these laws vary greatly across the country; even within a city.

These laws and the following dialogue pertain ONLY to recording telephone & cellphone conversations - NOT face to face conversations or public or office meetings. You are NOT permitted to record ANYONE (video or voice) without their specific confirmation and written release that they know they are being recorded at any time, in ANY place (even inside your residence or your business) - unless it is a telephone/cellphone conversation - THEN you must also follow each state's laws regarding such. Public EVENTS are the ONLY exception to video or voice recording and fall under fair use laws. <--- Fair use/Public nature does not APPLY to phone recording.

* If a judge will not allow your recording in court and you consider it of case winning relevance - request a new judge - possibly even a new venue. You want a judge who is technology savvy presiding over your case when using telephone/cellphone recordings.
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Recording a face to face conversation and trying to combine them with your legal rights to recording telecommunications could result in your case being tossed out on a technicality.

A Reference For Harassing Phone Calls From Debt Collectors


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Some things to ask yourself before action ...

1) Was the cell phone a company issued cellphone?

2) Were you on company time or on company property at the time of the recording?

3) Were you damaged by the recording?

4) Did you specifically ask not to be recorded and the phone call he made to you - was it harassing?

If you file for wrongful termination, harassment, etc etc - you may use this as a pendant charge - meaning it will enhance your case.  Rarely can you make a case just out of recording a call. It's usually considered part of a pattern off harassment.

Usually, the only "entity" that can be sued or "punished" by the law is a creditor that records you without your permission.
___________________________

Remember, there is no such thing as phone call recording PERMISSION or AUTHORIZATION ...


Note that the law is specifically 1 or 2 party NOTIFICATION. No one can deny you the right to record a phone conversation IF you properly notify them and follow the laws within your state.

Recently, I received a phone call from a debt collector. This debt collector refused to listen to me and kept interrupting me ... I started recording the phone call. I asked her "what state she was calling from" ... she refused to tell me (A creditor rules violation) ... I looked on my iPhone - it said Carrolton, Texas. Texas is a one party notification state. Although I did not have to inform her she was being recorded; I did. She stated,
"I do not give you permission to record this conversation."

She could have said, "I don't authorize you to record this conversation." ... and it means the same thing.

My recommendation isn't to argue ... just continue the conversation and continue recording.

Understand a few facts about this conversation and a few very common myths:

1) If you are in a one party state and the other person online is in a one party state - you do not have to inform them they are being recorded. You knowing that you are recording, qualifies as the one party notification. This is not an interpretation of the law. IT IS THE LAW!

2) If you are being recorded, you have the right to record the conversation AS LONG AS you follow the laws of your state.

3) There is no such thing as "permission to record" - continuing a conversation IS a permission granted by the other party. One cannot "authorize" or "de-authorize" you from recording. I feel silly typing that, but if someone who you are in a heated argument with threatens you about permission, it makes it SOUND ominous. Don't let their ignorance of the law intimidate you. If the other party continues the conversation after your notifying them that you are recording - they are granting you the right to record. PERIOD. Again, this is not an interpretation of the law. IT IS THE LAW!

You may have OTHER rights if the other party "claims" you do not have permission to record a phone conversation (Particularly if they are a creditor, law enforcement officer, or attorney*). Many people, especially law enforcement and creditors, PRETEND to know the law regarding recording of phone calls. Often, they THINK phone call recording and face to face recording are the same. It is not. There are specific laws governing each. Phone call recording happens to be very concrete.

Please also know that it is your RIGHT to request (properly & politely) for any recording a company/attorney may have of you and they are required by law to make it available to you. Note that this doesn't mean they are required to make it convenient for you to have the recording. The other party is also not required to give it to you any form that you request. As an example, you cannot request a CD, tape, transcript, or email. It is up to the other party to determine what "form" they will provide the recording. A general rule of thumb is 30 days from a WRITTEN request.

* You may want to request dismissal in court, dismissal of debt collection, and/ or sanctions if a person claims you do not have a right to record. Seek out a good attorney for further instruction.

* If a judge will not allow your recording and you consider it case winning relavance - request a new judge - possibly even a new venue. You want a judge who is technology savvy presiding over your case.

* Feel free to refer anyone to
the reference you are reading for clarification.

* I have worked
very hard to maintain this page and try to respond as promptly as possible to any comment ... please consider clicking on an advertisement to kick a few cents back my way or even better sending me $1 through Paypal - see the right side bar.

* Post your comment or question
AFTER reading all of the comments. I usually will answer your question within a couple hours. I monitor and moderate these comments carefully. I realize it's a lot to read. But if you do, this will answer 99% of all your questions.

* PLEASE understand that this is not a substitute for a good attorney's advice. Many attorneys seem to be using this database on my site. While I spent a long time researching this database, it's well documented and well researched, and I consult with friends and an attorney -
PLEASE KNOW I AM NOT AN ATTORNEY.

If I'm being harassed by phone, I send a letter to the other party* - notifying them by mail that ALL conversations will be recorded.

* Sending certified with signature confirmation is recommended.

EXAMPLE:
Mr. X,

Due to the nature of our communication, please know that I will be recording all calls to phone number (xxx) XXX-XXXX for reference or possible evidence in court proceedings. This applies to
ALL of our telephone conversations. This may be your ONLY notification.

Regards,

Philip Smith
06/24/12
* Obtaining a notary seal on such a letter may also be another good step.

I can record ANYTHING I wish - laws may prevent me from using this information, but it is ALWAYS up to a judge to allow ANY evidence as admissible whether obtained illegally or not. That being said ... know that a sneaky attorney could call for a mistrial because you submitted evidence improperly or illegally. Read
ALL of the comments below to see where I have thoroughly discussed this scenario.

To clarify; know that one can record
anything without notification - even in a 2 party state. It is a threat to use or actual use of these recorded conversations to defame, frame, or harass where these laws come in to play.

I make sure I record most of the phone calls I make to verify content here on FixYourThinking ...

I also record most phone calls that relate to my business dealings.

It's very easy for someone to say something and not follow through, or just forget what they said on the phone.

Most newer cell phones can record calls directly into the phone - my Sony Ericssson s710a records it directly as an MP3.

Here are the laws for recording phone calls state by state ... be aware, that most of the time, your phone calls are being recorded - sometimes without your knowledge. Most states are
"one party consent". This means that only one person (even the one who initiates the recording) need know.

One way to avoid these laws entirely is to chat and record through instant message - most IM programs automatically keep a file on your computer. VOIP phone conversations and audio chat ARE NOT governed by these laws! BUT IF YOU HAVE A PHONE NUMBER associated with your VOIP phone (IE A Skype-In/Vonage #) then you must follow the same laws as a normal phone conversation.

Also know that this is a disadvantage of phone call recording websites or "circumvention numbers" - you are ONLY allowed to record calls that you initiate or are a part of or for a number that it has been pre-established that you are being recorded. Just because these "mechanisms for recording" exist doesn't mean they are legal.

A good way to look at this:

• Apple doesn't allow applications in the App Store and AT&T/Verizon/T-Mobile/Sprint do not promote such "circumvention" because it is illegal.

• There ARE applications for the iPhone though if you jailbreak your iPhone.

Synonomous:

• Because you own a gun doesn't mean you can shoot and kill a person.

• You can shoot and kill a person. It is against the law.

• You can shoot and kill a person in self defense.

If you are in a two party notification state and you are TOLD you are being recorded; you have no legal rights if you continue your conversation beyond that point. Arguing with the recording party over
the right to record is consent to record; based on laws governing harassment.

It is best to gain confirmation and identification.

EXAMPLE:

"Roger, why can't you support me as my boss"
OR

"As your secretary, I expect more clarification from you so I can do my job."
Extrapolate and adapt those identifiers for your situation.

Court evidence is much more credible with as much proof as you can obtain (even if there is a known person or an admittance by the recorded party that they are who they are). Plus, you can carry the argument further by saying,
"He knows he's my boss and he's putting me in an awkward position." <--- saying that to a jury puts a lot more weight on the recorded conversation and gives you the rare opportunity to interject an opinion about the Defendant. Concerning police assisting in a phone call recording: as long as the other party KNOWS the police is recording the call they can admit the evidence into court. You can try to claim that you were set up - most jurisdictions don't allow police entrapment. MOST police jurisdictions don't know the laws or proper procedure regarding phone conversation recording. You will want to make sure that the call is played in its entirety in a court room for two reasons. 


1) Context of the statement

2) Confusion of the issue - a lengthy call will be lost in translation with a jury.

You may also want to check into your rights as far as police involvement - believe it or not; an individual has more rights to record a call than the local police officers do. The only way this makes a difference is if the nature of the call was terror related or you made a threat to harm a high ranking government official.

Again, make sure that their recording is within context and object to any interpretation as hearsay.

A phone recording made from a out of state phone line or made to an out of state party, has to have the party informed of the recording and his/her consent or the tone on line, every 15 seconds, or a consent in writing before the recording is started.

Just because you have a spoofed telephone number from a different state does not mean you have the rights of that state's phone number. In other words you must always go by your state's laws, but more importantly, the state lawof the person who's call you are recording.


Scenario from a comment:

What charges would be brought up against someone that recorded me? How would I use my right to my privacy in court?

It's what is called a pendant charge.
You must have action or cause to "use" the law. One can't really prosecute solely on the basis of someone recording you - even though it's breaking the law. It can be done but the cost of an attorney or the frustration of representing yourself in a complex law that even most judges don't understand - wouldn't really be worth it.
Are you trying to get custody of a child and need to prove the other spouse isn't trustworthy or is oblivious to the law? Good point to bring up to the judge. 
Are you in a battle with a creditor? They must follow the law to a tee to collect. If they record you without telling you OR use your recorded info for ANYTHING other than the stated purpose (which is usually "quality control") ... Then you MAY have rights to cancel that debt. Remember, no matter how much an attorney will argue to the court, "quality control" is NOT an ambiguous term. Calls, simply stated as "quality control recorded", unless stated that the information may be collected and used against you, is NOT legal to be used against you in court.
Here are the laws state by state:

States Requiring One Party Notification

Alabama
Alaska
Arizona
Arkansas
Colorado
District Of Columbia
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Jersey
New Mexico
New York
North Carolina
North Dakota
Oklahoma
Oregon
Ohio
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
West Virginia
Wisconsin
Wyoming

States Requiring Two Party Notification

California
Connecticut
Delaware
Florida
Massachusetts
Maryland
Michigan
Montana
New Hampshire
Pennsylvania
Washington

The
ONLY times you relinquish consent in a two party state is when:

1) You are a government official and your conversation isn't 100% COMPLETELY government business related.

2) You are using a corporate issued cellphone and it is contractually stated that the calls may be intercepted AND the issuer of the cellphone has allowed a warranted tap

3) You have already agreed to a previous or ongoing tap onto your phone

4) You call a law enforcement officer, judge, or government official

5) You are calling to or being called from an Indian reservation or foreign phone number that does not originate in the USA

The phone call, is in all ways not allowed into evidence, if the
OTHER phone was being tapped and did not include a message that the call was being recorded or if the caller did not say you were being recorded - remember - staying on the phone after someone informs you that you may be recorded IS consent.

Warranted taps ONLY APPLY TO INDIVIDUALS not general phone lines.

The following states have exceptional amounts of case law regarding telecommunications recording - here is a sampling and brief clarification.

A large university library is an excellent resource to research case law - a librarian will be more than happy to help you.

Arizona

Arizona is a "one-party" state, ARS 13-3005.A(1)(2), and 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, ARS 13-3012(5)(c).

California

Although California is a two-party state, it is legal to record a conversation if you include a beep on the recorder and for the parties to hear. This information is included with California telephone bills:

California prohibits telephone monitoring or recording, including the use of information obtained through interception unless all parties to the conversation consent (California Penal Code Sections 631 & 632). There is no statutory business telephone exception and the relevant case law all but excludes this possibility. California courts have recognized "implied" consent as being sufficient to satisfy the statute where one party has expressly agreed to the taping and the other continues the conversation after having been informed that the call is being recorded. Violation is punishable by a fine of up to $2,500, imprisonment for not more than one year, or both. A civil plaintiff may recover the greater of $3,000 or three times the amount of any actual damages sustained.

Connecticut

Connecticut is a two-party consent state. The State Police strictly enforce wiretapping laws.

Illinois

Illinois is, by statute, a two-party state. However, case law from both the Illinois Supreme Court and various Illinois appellate courts have declared Illinois a one-party state in the case of private citizens (businesses and individuals -
NOT law enforcement). The consensus is that one-party consensual recording is merely "enhanced note-taking" and since some people have total recall without recording, how can the other party have any expectation of privacy to a conversation held with another person.

Illinois requires prior consent of all participants to monitor or record a phone conversation. Ill. Rev. Stat. Ch. 38, Sec. 14-2. There is no specific business telephone exception, but in general courts have found extension telephones do not constitute eavesdropping devices. Criminal penalties for unlawful eavesdropping include up to three years' imprisonment or $10,000 in fines and the civil remedy provides for recovery of actual and punitive damages.

In Illinois; It is illegal in any way to tap into cordless home phones via a scanner or other device.



2012: There have been recent court rulings in Illinois regarding wire taps and recording of police conversations.

Indiana

In the state of Indiana, it is one party authorization. As far as what is admissible in court it is still being tested per each case individually by the prosecutors office in the county in which the investigation or case was done.

Massachusetts

Massachusetts requires consent of all parties unless another exception applies (Massachusetts Gen. Laws Ann. ch. 272, Sec. 99). Telephone equipment, which is furnished to a phone company subscriber and used in the ordinary course of business, is excluded from the definition of unlawful interception devices (Id. at 99(B)(3)). Office intercommunication systems used in the ordinary course of business are similarly exempt (Id. at 99(D)(1)(b)). The criminal penalty is a fine of up to $10,000, imprisonment for up to five years, or both. In civil litigation, an injured party may recover actual and punitive damages as well as costs and fees. It is a separate violation to divulge or use the information garnered through unlawful interception and an additional penalty of up to two years in prison or $5,000 may be imposed on this count.

New York

New York is a one party state, however some courts will not admit an interview with a witness to an event if they were not informed they were being recorded. Judges may use their discretion on a case by case basis.

Pennsylvania

Pennsylvania requires the consent of all parties. 18 Pa. Cons. Stat. Ann. Sec. 5704(4) with the following exception: any individual may record a phone conversation without the other party's consent if:

The non-consenting party threatens the life or physical well being of the consenting party, or any member of his/her family.
The non-consenting party commits any criminal action (the statute specifically uses the example of telling the consenting party that they have marijuana they want the consenter to buy, but does state ANY criminal act).

Felony penalties may be imposed for violation of the Pennsylvania statute.

Washington

Washington requires the consent of all parties. Some companies manage to work around that by going to the Indian reservations or any federally owned property to make the call - Federal law is a one party consent.

Wisconsin

Wisconsin is a 1 party state, but legislators are constantly trying to introduce laws to change it to two-party state. Any evidence gathered by a one-party consensual recording is inadmissible except in murder or drug related cases.

The Wisconsin Statute 885.365 for recorded telephone conversation (1) states "Evidence obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other number, shall be totally inadmissible in the court of this state in civil actions, except as provided by 968.28 to 968.37." Exceptions are it the party is informed before the recording is informed at the time that the conversation is being recorded and that any evidence thereby obtained may be used in a court of law or such recording is made through a recorder connector proved by the telecommunications utility as defined in WI Stats 968.28 - 968.37 (which is the stat for court ordered wiretaps) which automatically produces a distinctive recorder tone that is repeated at intervals of approximately 15 seconds. Fire department or law enforcement agencies are exempt as are court ordered wire taps.

This does not allow a person that's not a part of the conversation to record any part of the conversation without the parties to the conversation being informed the 3rd party is recording the conversation.

References:

Electronic Communications Privacy Act. United States Code. Title 18. Crimes & Criminal Procedure. Part I – Crimes. Chapter 119 – Wire & Electronic Communications Interception & Interception Of Oral Communications.

http://floridalawfirm.com/privacy.html

Reporters Committee For Freedom Of The Press: A Practical Guide To Taping Phone Calls & In-Person Conversations in the 50 States & District Of Columbia

http://www.rcfp.org/taping

Broadcast of Telephone Conversations, 47 C.F.R. §73.1206 (1989)

P.L. 99-508 ("The Electronic Communications Privacy Act of 1986"), amending 18 U.S.C. § 2510

18 U.S.C. § 2510 - (1999) (Wire & Electronic Communications Interception & Interception of Oral Communications)

FCC Consumer Information Bureau: http://www.fcc.gov/cib

“Recording Telephone Conversations”

http://www.fcc.gov/Bureaus/Common_Carrier/Factsheets/record.html

“Interception & Divulgence Of Radio Communications”

http://www.fcc.gov/Bureaus/Common_Carrier/Factsheets/investigation.html

U.S. Department of Justice: http://www.usdoj.gov/

USA Bulletin, September 1997 Vol. 45, No. 5, 6. Electronic Investigative Techniques I, II:

1) http://www.usdoj.gov/usao/eousa/foia_reading_room/usab4505.pdf

2) http://www.usdoj.gov/usao/eousa/foia_reading_room/usab4506.pdf

Telephone Tape Recording Law. Ralph Thomas. National Association Of Investigative Specialists.


http://www.pimall.com/nais/n.tel.tape.law.html

Dealing with Phone Calls from Debt Creditors Looking for Your Payment

http://mobile.associatedcontent.com/article/37390/dealing_with_phone_calls_from_debt.html



* Even though I've tried to contain the comments to one page and eliminate redundancy - comments have now spilled onto a 2nd, 3rd, and 4th page. Please remember that your question may be answered on another page of comments. (You may have to click on "newer comments" to see them)

Refer to these related Fix Your Thinking articles:

Unmask Anonymous or blocked caller IDs

How Can I Place A Call Anonymously


Also see this wikipedia article:


http://www.wikihow.com/Trace-Cell-Phone-Numbers

427 comments:

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Anonymous said...

I have been advised by my spouse that he is "setting me up" for arrest and that he has gotten a phone number in my name and is calling people and harassing them and it looks like it's me or my number on the caller ID. He states that these people (his mother included) are recording "my" calls and are going to have me arrested for harassment. I have tried calling the local telephone companies and advised the company for my own home number that I am not calling anyone and asked if there was a way to protect myself and they had no advice. Just wondering what you would suggest as he has used my personal information (social & drivers license) to not only get credit cards and purchase the telephone numbers that he is using for me but said that he will deny it and that no one (police, courts, etc.) will believe me. If I do get into any kind of trouble as a result of this crazy stunt, how will I prove that it is not me. Any advice is appreciated.

Anonymous
California

fixyourthinking said...

The best thing to do is be proactive with him and the authorities and documenting that he said these threats.

Trick him like he tried to trick you ... call him and ask him why he's doing all of this (you may already know) ... so you can record him saying it.

Better still is getting him to email the threats.

You also should go to the police immediately and file a restraining order ... it's going to cost you $55 or so ... but would help your case in court and help YOUR case for harassment.

Anonymous said...

I live in Palm Bay Florida and have recently found out my husband has been tracking me online and also has been recording my phone conversations with my girlfriends. Is there anything I can do? Can he get in trouble for this. He also has top secrect clearance for the government, could this get him in trouble with his job? For those of you who are thinking what I did to make him start doing this. He just recently told me he was just wondering how it was I talked about him to my girlfriends and he could not sleep knowing someone in his house was having a conversation about him and he has the right to know what we are talking about cause it is his house.

fixyourthinking said...

Florida is a 2 party notification state ... this means that the party on the other end MUST be informed they are being recorded. So ... you may have a case .... government clearance makes no difference in private affairs ... he's breaking the law if he's recording your phone calls.

He also cannot track you online without your permission. I recommend that you erase your browser cache and history everytime you are on the computer ... take your computer to a local "computer repair" and see if there has been a keystroke logger installed.

One way you could avoid the whole thing is secretly put another hard drive in the unit and boot from it when you surf ... disconnect the power to that drive when not using it.

Anonymous said...

I just had a phone call from a lawyer at my place of business - I explained to him that I tried to contact the company he was retained by to make the needed arrangements for payment, this company was in the middle of reloacting and I gave them some updated information and asked to be contacted. The lawyer threatened me and made me very upset and would not allow me to give him information about my address and alternate phone number to be contacted later. I was finally able to give him the address, but he threatened to take away mt drivers licence and vechicle if I did not make payments for what I owe. I explained to him that I am a single mother and I can not make a payment for more that $50.00 on what I owe. I also told him about the company supposing to call me back and he still threatened me. What recourse - if any - do I have for this situation?

fixyourthinking said...

I'm sorry you are going through this situation ...

Before I give you ANY advice however ... know that I am NOT a lawyer and it is ALWAYS best to consult an attorney first before doing anything you may think might require an attorney.

First ... I do not believe the lawyer is allowed to call you at work. This may be considered harassment and an invasion of privacy. A collection agency without identification as such is allowed to call any phone number you have provided to a lender and simply tell you or a coworker to please return their phone call.

Two ... if the company relocated and did NOT send YOU updated information - it is NOT your obligation to follow up. However - you are obligated to send payment and hope that it is forwarded. If it is not forwarded and returned to you - do not open it - just keep it with the postmark on the envelope.

Three ... if you live in a one party notification state and the attorney that threatened you does too. Call him back and ask him nicely to repeat the threats (don't be that direct) ... just say something like ... "Why did you threaten me with this action blah blah blah"

He can't take away your driver's license - it would be awesome if you had that threat recorded. That would light the eyes of any attorney you could take this case to.

infoguy said...

I currently live in Arizona which turns out to be a 1 party state. If the party that I have been recording phonecalls from my landline is not aware. Can I use that as evidence in court to justify my case. Keep in mind that the other person does live in Arizona also. And was not informed of any conversations that were recorded. But again all conversations recorded were taken directly from my landline in which I am listed as the person that pays the phone bill.

fixyourthinking said...

Arizona is the same as South Carolina as far as I know. You should be able to use the recorded conversation as admissable evidence in court. Unless it's a divorce case you will have to turn the conversation over in discovery though ... you won't be able to just "spring it on the court" during the trial.

Anonymous said...

In the state of Louisiana I understand that it is a "one party Consent" of recording phone conversations but does it apply to cell/mobile phone aswell. Can you legally record a cell phone conversation without me nowing it?

fixyourthinking said...

Cellphones are the same as landlines in all states as far as this law is concerned. The only way it doesn't apply it through electronic communication. So, you could record ANYTHING if you call someone from Skype. But as always, you need to consult an attorney. Usually the worst that will happen is that you get the evidence heard but ruled inadmissable.

Anonymous said...

I know one must inform the recipient of a call from a 2 party state that the call is being recorded even though the call originated from a 1 party state, which is logical. What state law governs when a call is initiated from a 2 party consent state (California) to a 1 party consent state? Can the recipient of the call in the 1 party state record the conversation legally without informing the caller of the 2 party state?

Anonymous said...

A Question. My uncle and his new wife live in New York and his wife records all the conversations that come thru the phone without letting anyone know and no matter who is making the call or who is calling. Is that Legal?

Any reply will be highly appreciated.

fixyourthinking said...

What state law governs when a call is initiated from a 2 party consent state (California) to a 1 party consent state?

The laws of EACH state apply, both caller and called.

My uncle and his new wife live in New York and his wife records all the conversations that come thru the phone without letting anyone know and no matter who is making the call or who is calling. Is that Legal?

The answer to the previous question is your answer. If the calls are made within New York - the wife has every right to record any phone call. If someone is calling from a two party state or she is calling TO a 2 party state she must inform the person being recorded. If she does not she can be sued and it only takes phone records to prove her guilt.

Anonymous said...

Are the laws the same if you are the owner of both phones that are being recorded? Regardless of who is talking, can I record since they're my phones?

fixyourthinking said...

Are the laws the same if you are the owner of both phones that are being recorded? Regardless of who is talking, can I record since they're my phones?

That's an interesting question. Since I'm not an attorney I'm not sure I could best answer that. I do know 100% that you MUST go by both the "caller and called" states laws. The more specific and more restrictive law from either party is the dominant law.

What you can do is tell the other party you will record all of their phone calls by letter (allowing adequate receiving time of said letter)

If you are NOT wanting someone to record yor phone calls and you own both phones - you can send them a letter requesting that your phones NOT be used to record ANY conversations. If they do not comply you will revoke their priveledges under your payment and have them disconnected. You must follow through with your "threat". But, if you have cerified proof that you sent such a letter to the other party, I hardly think they could use this information against you.

You also need to make sure that your letter includes NOT disclosing the conversation to ANYONE including law enforcement or internet media.

Julie said...

Question? Can my husband legally tape my conversations that I have with others? We are going through a divorce and live in Mississippi. Miss. is a one party state. The phone is in my name.

fixyourthinking said...

wiretapping is not the same as recording phone calls because neither of participants in the call know the conversation is being recorded (even if you do) you are not initiating the recording yourself ... someone in the conversation must physically be pressing a record button ANYTHING your husband records can be prosecuted as wiretapping and is inadmissable in court... make sure your divorce attorney is aware of these recordings so he can send a court motion for suppression of evidence.

Anonymous said...

In a 2 party state do you have to advise the person every time that you are recording? Example: If you give the company in writing that you will record them every time they call do you still need to advise every time.

Anonymous said...

If someone calls you from a 2 party state, you live in a 1 party state and they announce 15 minutes into the call that they are calling from a 2 party state (CA), but also goes on to inform you that they are not required to obtain your consent because they are calling from a 1 party state (CA) and CA does not require consent, would that individual still be able to use the information in court? Given the fact that they didn't notify you at the beginning of the call and they either lied or had their facts wrong?

fixyourthinking said...

no ... only the person recording the phone call need know -this is the one party IE - if i called you in Iowa from my home state of South Carolina I can record the call without notifying you. BUT if you tell the party you are recording them its all the more compelling when it comes to prosecution because you can also show defiance.

Anonymous said...

My ex has admitted that he has been recording my phone calls (from a one party state) to his house phone (in a two party state). This includes phone calls between me and my daughter in which he is not a party of. Is this illegal?

fixyourthinking said...

You must go by the laws of the state of the person being called. IE ... if I call you ... I must follow the laws of your state. Of course none of this matters to a jury - you can always bring the law up, say it was recorded against your will or without your knowledge, read the two state law, and let the opposing attorney and jury figure out and discern who's in the right.

Lynn Sims said...

I live in Texas and my ex-husband has been recording my phone conversations with my kids for a long time. When he started his lawyer wrote me a letter stating that the phone converstations were going to be recorded but I have never actually consented to them recording my conversation with my kids and of course my kids have not consented to these recordings. Also there is no indication(beep) or statement at the beginnings of our converstaions to actually verify that the recording is taking place HOWEVER my ex-husband has supplied these recording to his lawyer and my lawyer as "evidence" so this verifies that he DEFINITELY has been doing this on a regualar basis. Can I take any legal action against him for these recording since the parties ( me and my children) actually talking in these conversations HAVE NOT given consent to being recorded???

fixyourthinking said...

you live in Texas which is a one party state, meaning only your ex has to know, he is free to record the conversations any time. There is no beep required in your state. If he DOESN'T provide alimony or child support you may have rights that you may need to seek out justice with the courts

Anonymous said...

Can you point me in the direction of your sources? The company I work for makes outbound telemarketing calls and needs to start recording as of 2008.

Does the 12 state - two party/38 state - one party law apply to situations such as this as well?

We are not selling information and we already have an established business relationship with these people.

fixyourthinking said...

I pulled this reference from MANY sources including state government websites.

I also consult with an attorney friend of mine to answer questions here.

If you own or operate a business it will certainly behoove you to get an attorney who is versed in such law.

The only thing I can caution you about is the "established business relationship" - if they are on the national do not call list this may supercede your right to call AND your right to record.

Anonymous said...

I have been using a voice recorder to tape conversations/ongoings that happen within my home. Some of which I am present for & some I am not. The reason for this, is that I have concerns about what is going on with my spouse & our 4 year old. If my spouse admits, on our home phone, that she accessed my cell phone voice mail messages, is that illegal? I am not tapping the phone lines, I am recoding anything that is audible within the area of the recorder in the home. Since my 4 year old is always present, & if I am not, does that make any of this admissible or inadmissible? We live in Minnesota (1 party state. Any insight or where I could find documentation that would support my case is much appreciated.

fixyourthinking said...

I am not an attorney but it seems as though everything you are doing is perfectly fine and completely useable in court.

I have some footnotes on this post. However, this is a complete and completely up to date reference. All judges will refer to these rules AS POSTED here - they will rarely go by case law when the law is pretty clear - which it is with recording telephone calls.

Anonymous said...

How does the 1 party law apply when a minor child is involved(State of Ohio)? Can you record the conversation of the minor child you have legal custody of when they are talking to thier Mother?

fixyourthinking said...

There is no "minor exception" for any laws. When recording family members the "recordings" are almost ALWAYS admissable and "approved" especially if a family gaurdian or "respected regular caregiver/babysitter/godparent" is involved.

Anonymous said...

Thanks for your help..We told her recently that we were taping and now she is filing charges against us for it, just wanted to try to find out if recordings prior to us letting her know would be admissable if needed. We are hoping that by telling her we are recording, the bashing and verbal abuse will stop for the kids well being. Are there any Ohio cases I can reference that you are aware of? By the way great site.Very informative.

fixyourthinking said...

You should be able to call your Attorney General's office and they should be able to help with Ohio cases.

Exactly what charges are being filed AND with what entity is filing the charges with AND what is she asking be done?


Ohio Attorney General:

Ohio (614) 466-3376

Anonymous said...

She hasnt filed anything yet, but is mentioning interference with her relatiohsip with her children as grounds through Domestic relations court. We are still in court process to get her parenting rights taken away from her. Right now she has shared parenting on paper only (with standard visitation) We have full legal custody of the kids. Again our only reason for taping was to force her to stop bashing both of us and telling the kids they cant come see her because we wont let them (when we are following the court guidelines for visitation). She also calls when intoxicated, and is on probation and not supposed to be drinking. I could go on and on...

fixyourthinking said...

I'm no attorney, but consult with my customers (via Apple Computer repair) who are attorneys ... her claims don't sound like anything that would stand up ... but let her file ... judges do NOT look kindly on frivolous claims or wasting their time. The more crazy and harassing SHE appears the better off you are.

Anonymous said...

In a one party state, if the person being recorded asks "am i being recorded" and you answer "no", is the recording then inadmissable as evidence in court?

fixyourthinking said...

the court won't look on it kindly but one party notification is just that ... it should be assumed by anyone in these 1 party states that ANYthing you say can be recorded

Anonymous said...

Hi
I wanted to record a conversation between parties in New Jersey and Texas (myself) where both states allow 1-party consent.

I was wondering are such calls (phone, cell phone) admissable in civial and criminal lawsuits?

Thanks so much
Raza

fixyourthinking said...

In answer to Raza: yes admissable in both criminal & civil BUT make sure you are not recording two other parties ... it can only be a one on one phone call in which you are the participant, legal guardian, or power of attorney to one of the participants.

I want to reiterate that I am not an attorney and seeking out professional advice is always a good idea. Since maintaining this database and reference I've learned a lot and consulted with an attorney to answer all of your questions.

Its always a lot more credible that you let the other party know you are recording them and just continue with your conversation ... most of the time they will forget about it if in a heated discussion or try to be overly vague where the recording can be used in your favor and have a broad interpretation that may better fit your purpose in litigation. Remember, if they stay on the line, the other party saying, " I do not want to be recorded" is not a request to which you must acknowledge. Just continue with your conversation as if you can't hear them ... It is their responsibility to hang up. If they call you back you within 24 hours you are not required to give them another notice or acknowledge them if they ask if they are being recorded.

Anonymous said...

I read above that calls that include more than (2) parties are not admissable in court. If I record a conference call btwn myself and (2) other companies, why is that not admissable? I am trying to figure out another way to document in addition to "follow-up" writings.

Thanks for your insight,

Kansas

fixyourthinking said...

I need to remind you that I am NOT an attorney...

If in a two party state BOTH parties must be notified. If a one party state, one of the parties must be notified you are recording. As my understanding of court proceedings goes ... if you have a good ballsy attorney ... he will make mention of the conversation in court and say he has the conversation recorded if the jury wishes to hear it. Whether admissable or not - the judge should be able to determine if it should be pertinent to your case and therefore sustain the evidence or the mention of what is contained in that evidence. Anything goes until the judge overrules you.

Anonymous said...

My wife has a custody case with her ex and just recently her ex recorded a conversation that they had at his residence without her approval. She caught him and said that she didn't give him authorization. Is it illegal in the state of Michigan to do something like this without the others approval?

fixyourthinking said...

Is this a telephone issue or person to person issue ???... because the laws vary from state to state - telephone recording laws are considered federal and are more acceptable as admissable court evidence. Person to person recording laws however are governed by state and can even vary county by county and possibly even city to city and part of city - ie : I am aware that Atlanta has different laws in different places and may be affected whether you are in a private or public place. Many judges will not allow evidence recorded or documented by hearsay sources, meaning; they only accept testimony as recorded by police, court reporters, and notaries.

Anonymous said...

Ohio- the father has full temporary custody of a 14 yo and has recorded telephone conversations between mother and child because of activity and environment of mothers home. The tapes have revealed that there is pot smoking, underage drinking, boyfriend sleeping over and in same bed and so on. The 14 yo has told the mother that he found a tape recorder hooked up to the phone and the mother filed charges with the police department. The officers have taken their statements and came to talk to the father which he told the officers to talk to his lawyer. The prosecutors office received the complaint from law officers in the county she lives so the officers came to the fathers house and said that she had filed charges - taping telephone conversations without consent. Any suggestions or cases to refer?

fixyourthinking said...

Ohio is a one party state ... this means that someone participating IN THE CONVERSATION must know that the conversation is bring recorded ... otherwise the evidence is completely inadmissable.

Anonymous said...

Ohio is a one party but can't the parent tape based on vicarious consent looking out for the welfare of the child? Wonder if the information was not used can they still prosecute?

fixyourthinking said...

gaurdianship and power of attorney can complicate this issue. Call your attorney general and ask the office if they can send you information regarding this issue. Know that other state decisions won't factor here / so your attorney general's office should be able to provide you information.

Anonymous said...

Someone lent me money and I wasnt able to pay him back, I never signed anything (paper or document) he called me a record our conversation. Is that legal in the state of Florida?. Can he take me to court base on the recording?

fixyourthinking said...

First ... not to be a jerk ... but you should always pay back ANY principal you owe. At the very least you could save $1 a day and pay back $360 a year for however long it takes.

Florida is a two party state - if someone records you and did not tell you - you can object to the evidence.

If the person did not have a written contract to pay this money back - while ethically you owe it back you are not bound to pay it back.

You may want to look into verbal contract law though as that can vary dramatically from state to state and city to city.

Anonymous said...

One of my parent unknowingly gave permission for her home phone to be wiretapped. I am on SSI-disability and believed I have been followed to the doctor and dentist and to the gocery stores. I DID NOT GIVE ANY CONSENT (implied or non-implied)for this wiretapping. Is this legal? Can I sue for violating my civil right?

fixyourthinking said...

if they have power of attorney or give you financial assistance - even if they don't directly pay the phone bill - they have the right to do that. They may also have the right if they claim you as a dependent on their taxes. You can petition for a court order (local magistrate court) to have the tap removed.

Anonymous said...

Can a company you work for record your conversations in your office without you knowing?

fixyourthinking said...

Yes, but they must either have mention of it in your employment handbook/contract and or have a message that the caller is greeted with saying something like, "This call may be recorded for quality service evaluation."

Anonymous said...

Following up on this post:

Anonymous said...
Can a company you work for record your conversations in your office without you knowing?

3/24/08 11:23 AM


fixyourthinking said...
Yes, but they must either have mention of it in your employment handbook/contract and or have a message that the caller is greeted with saying something like, "This call may be recorded for quality service evaluation."

3/24/08 11:27 AM

As an employer, we want to know if we can record phone conversations as long as our employees are aware. It has not previously been in the handbook but we can create the policy if necessary. We have many direct lines so the “recording for quality assurance” line isn’t feasible. Thanks for your help!

fixyourthinking said...

yes you can record but do the following to cover your bases:

1) Send a companywide email alerting employees to the policy

2) Send out a companywide memo ALSO

Phrase it like this ( without using the word "new" )

"Please be aware that phone calls while in office and/ or on ANY company paid benefit phone or cellphone or other communication device may be recorded or monitored."

It is important to include all communications devices.

You should alter your employment contract or handbook for future hires to reflect this policy and should place an initial line next to it.

Anonymous said...

I am in NY and will be suing my ex-lawyer. I will be trying to admit a phone call as evidence. I have a call where my lawyer promises to use his "connections" with a judge to solve my issue--it was an unethical promise amongst many others. What can he do to get it thrown out?

Anonymous said...

quick question.. if in jail can they record the conversation which they say they maybe doing.. can they use it in court as evidence if something is said?

thank you

fixyourthinking said...

yes ... incarceration is a forfeiture of rights - even for visiting relatives or friends

Anonymous said...

I live in a two party state and my minor child lives in a one party state. I have full joint custody. Can I record my conversations with my minor child and not tell him or his mother of the recordings?

fixyourthinking said...

Yes you can record anyone IF you can be considered a legal guardian or have a power of attorney for that child - an attorney MAY try to argue other wise but a good judge will overrule an objection.

Anonymous said...

I am in Jacksonville,FL. I understand the two party notification however what is notification precisely. I understood that in some places a beep at the beginning of the phone call is enough notification. Also, do you have any recommemdations on where to find information on recording face to face conversations?

fixyourthinking said...

York as far as I am aware.

Notification means precisely:

One party state - one person must know by the words "this phone call may be recorded" - in a one party state - this means the person recording > AND < participating in the conversation need know.

In a two party notification state - this means that the recorder, and BOTH participants must be informed that they are being recorded.

Your attorney general would have information about how to find face to face recordings. Pretty much if you are out in public - you have no rights unless that PLACE forbids it.

Anonymous said...

My soon to be ex lives in NY and I live in NJ. My ex recorded my son who is 7 years old on the phone. Is this admissible in NY supreme court as evidence when the child is a minor?

fixyourthinking said...

Divorce cases are not handled by the supreme court. If your ex can be considered a guardian (if he lived with you) he can record any phone call from someone in his household

Anonymous said...

Hi,

I have a question. I live on OH and my sons father lives in NC. I have full custody and sole decisions (not final decision) in matters concerning my son. My sons father before tried video recording me and secretly video recording me and also recording phone calls with my son. My son currently is only 4 and at the time he was about 2. My son cannot even testify in court at his age now. Anyway, his father finally stopped recording the calls because I would ask everytime if the calls were being recorded. Once he told me they were I would say please turn it off and you can speak to our son. This went on and finally my attorney sent a letter to his attorney and the recordings stopped ( to my knowledge) well he has now again started recording the calls. Not only is he recording, he is using a VOIP phone to automatically do so. Is this legal with a minor and what is your knowledge of doing this with a VOIP phone? Also if I ask him to stop and he doesn't is this still legal?

fixyourthinking said...

Surprisingly, voice over IP calling is not governed the same way as landline calling. Also, accepting a call from someone who has said they may be recording your call is acknowledgement that the call is being recorded with your consent. You have the right and responsibilty to hang up. You also have the right to get a court order that says your son's father may not communicate with your son's via telephone. You do need to understand that a court can usually see through your trying to be difficult and having a legitimate reason for not wanting someone to record because they may be trying to see of the child is being brainwashed ... what I'm trying to get at is whatever your reason here DO NOT PAWN your children in some game between their parents ... the damage to their future could be far greater than you could ever imagine or could possibly be realized at this point in their lives.

Anonymous said...

If he was just recording me I would not care. There is a lot to my case and I don't want to get into it here but he has been told this is his last chance by the judge. I am not trying to keep him from talking to my son, not by any means. Just recording and using a VOIP. The main concern I have with the VOIP is that he can have a phone in his state and his family have one in their state and he pawn my son off on his family and I call and they answer and pretend my son is with him in his state. They have lied and done this before only got caught. It would be harder to catch with a VOIP. Do you have any laws that might help me in my situation? Thanks. Also if it is in my court order that he be able to talk to my son on the phone and I hang up if he refuses to stop recording do you think that would be breaking my court order? When he did this before I did hang up and tell him when he stopped recording that he could talk to my son, but now he refuses to do that at all and says that he will record all calls and continue using the VOIP and there is not one thing I can do about it.

fixyourthinking said...

Unfortunately ... the lawmakers in Washington (and at state levels) are woefully behind the times. VOIP calls (even if only one party is using them) are not governed the same way. You CAN make a request in a restraining order that you have asked for the calls not to be recorded and he has disrespected your wishes. You, therefore kindly request the court disregard this evidence as you think the recordings may have leading or miscommunicated content and are not wholly admissible because the party being recorded is a minor who cannot understand that they are being baited by a "gaming" parent.

As I stated, you can also just not allow your sons to answer the phone AT ALL and not accept any calls from the father. Even if there is a court order specifically allowing the father phone calls - you can break that order, go to court, and explain why - then let the judge decide after hearing your argument whether it should be allowed.

Anonymous said...

Could you tell me how you know this because I am in a one party state and have full custody. The other parent accused me of taping and now I am being investigated. I have talked to an attorney and they told me to not say a word and maybe the police will go away. I want to use what is on the tapes because it shows the alienation, deceptiveness and the mental abuse the other parent is doing to our minor child. It would also show the illegal activity that is going on in that household.

fixyourthinking said...

no one can accuse you of "taping" - if you are the legal guardian or PoA you have the right to record phone conversations of that minor - if you are in a one party state you are allowed to record ANY conversation on the phone you pay for. There should be no reason whatsoever to hide that you are recording someone. Also, a judge can determine whether the evidence can be used - you can plead ignorance due to ambiguity of the law regarding this. You must have your attorney make a strong case that the recordings are truly valuable to understanding.

As I state many times here ... I am not an attorney - I consult with one who has a lot of experience in the matter and wishes to help maintain this database and forum for educational purposes.

Anonymous said...

I live in a one-party state (Virginia). I am going to be recording a possibly "heated" conversation which includes my manager and I only with a hidden recorder. It is a fully functioning pen but it also records 8 hours of voice. I have no intention of telling him that I am recording him. If I end up in court with him, will it be admissible in court as evidence? The EEOC says I have a valid case.

Thanks,
Heather

fixyourthinking said...

Heather,

First ... make sure you know the difference ... these laws apply ONLY to recorded telephone/cellphone conversations - NOT face to face conversations or public or office meetings. You are NOT permitted to record ANYONE without their specific confirmation that they know they are being recorded at any time in ANY place - unless it is a telephone/cellphone conversation.

Recording a face to face conversation could result in your case being tossed out on a technicality.

If this is regarding a telephone call ...

It is best to gain confirmation and identification.

EXAMPLE:

"Roger, why can't you support me as my boss"

OR

"As a your secretary, I expect more clarification from you so I can do my job."

Extrapolate and adapt those identifiers for your situation.

Court evidence is much more credible with as much proof as you can obtain (even if there is a known person or an admittance by the recorded party that they are who they are). Plus, you can carry the argument further by saying, "He knows he's my boss and he's putting me in an awkward position." <--- saying that to a jury puts a lot more weight on the recorded conversation and gives you the rare opportunity to interject an opinion about the Defendant.

Anonymous said...

I live in New Mexico and share joint legal custody with my ex. When my 7 year old son came over this weekend he informed me that his mother and her boyfriend had been recording my phone calls to him. She is unable to keep her home phone turned on so I am forced to call him on her cell phone. Is this legal?

Anonymous said...

My boyfriend's ex-wife has a "friend at Verizon Wireless" and his ex has recorded some of his and mine's conversations. Is this legal? Is VW allowed to just record our calls? Is she allowed to have access to them?

Anonymous said...

I would like to do some training of phone calls on a live video broadcast without having to ruin the call by saying that the call will be recorded. I'm in Washington a 2 party state. If I use something like skype or vonage (voip) can I make the calls on a speaker phone with out them knowing. Any problems with letting others hear the call? Another question would be if I don't put it on speaker but let my audiance just listen to me do I need to let the caller know?

Anonymous said...

Bummer I was hoping to go live in the morning. I am thankful for anything you can share. What am I required to say if I do have to say that i'm recording? Is it different because I'm broadcasting and recording? For example I would have a live video feed of my phone calls on my web page. People can view my previous sessions as well.

It seems to stand to reason that if I don't divulge any personal information about the caller like last name address etc I could get away with not saying anything to them if my viewers can only hear me.

fixyourthinking said...

if you're doing this for demonstration purposes only then why not "fake it" and avoid the issue entirely. It is a complex issue to do what you are planning ... I would seek out professional legal advice as it sounds like you might be trying to gain notariety (and could be interpretted as profit). Your "educational" defense would be very strong.

I'm not sure why doing the call live makes a difference. Another thing that would help is if you masked the voice of the called person - post editing.

You really didn't give me enough details to give you a concise answer.

All that being said, and knowing that I am not an attorney ... my best interpretation would be that as long as you are not recording and keeping or archiving the "feed" and you tell those watching that they may not do so either ... And you specifically tell your "audience" that this is being done for instructional and informational purpose only - then I don't see ANY problem.

fixyourthinking said...

One other note ... Vonage is recognized as a phone service ... Skype is not.

Anonymous said...

My ex-boyfriend secretly recorded our private conversations and intimate discussions within the privacy of our co-bought home in Seattle, Washington. He did this multiple times over several months -- always without my knowledge and consent. I only found out because, at a later date, my ex- (stupidly) sent me a crazy email. Attached were 4 audio files of our private fights and relationship disagreements. He said that "there are many more where this came from." He also explicitly wrote that he recorded these private conversations without my knowledge or consent, therefore he had "the advantage" and recordings may not be "fully representative" of our relationship dynamic. He said his motivation was to "prove" to me that I was abusing him (that's why I left him), and that his actions/abuse were justifiable and excusable as "tough love", given some of my comments. WTF?!? Needless to say, we're over.

I hired a law firm to recover as much of my home equity investment. Unfortunately, they are not criminal or aggressive personal injury/fraud lawyers. They have helped me (I hope) get out and away from my ex- ASAP, but I am still out tens of thousands of dollars -- perhaps close to $70K in cash expenses and sunk costs (without accounting for any personal/emotional/intangible losses). I have also discovered that my ex- did this before to another ex-girlfriend. They co-bought a Whistler condo, she had more cash and paid more downpayment, their relationship quickly soured after they co-invested, she left, and he insisted on buying her out of her "half" of the property for what he could afford (or said he could afford) at the time (~$16K). Then, a short time later, he sold the Whistler condo for $100,000+ profit for only himself (yes, PROFIT -- after paying back all his real-estate debts, taxes, etc). I think his co-investment scheme (fraud in my opinion) earned him a good financial return before, so he did it again with me.

I believe my ex- illegal recorded our conversations in order to drive me out of our relationship for his own personal gain/profit. His sick email and recordings were "successful" in that they made me so upset/disgusted that I left (him, the house, all of personal possessions -- even my pets). Those illegal audio recordings were the final nail in our relationship coffin -- beyond any reconciliation. They definitively drove me out of our home. This allowed my ex- to buy me out of the property for pennies on my dollar investments into the home. In the future, I have no doubt that he will sell the house for good profit (remember, this is property that he never could have afforded without my initial capital investment of~$130K, plus I subsidized more than 50% of his transaction/moving costs to occupy the residence).

So, how can I file criminal AND civil charges against my ex-?

My goal is to hold him responsible for making those illegal audio recordings (taping occurred in Seattle, WA)? Even if I don't recover any financial losses, I want to see my ex- held accountable for his actions. He should NEVER be able to do this to any other woman (or person). His actions were highly unethical and, I believe, illegal.

How do I prosecute or find an aggressive lawyer for such a crazy case (Seattle, WA)?

Thank you.

fixyourthinking said...

It's not clear if these recordings are of personal conversations or telephone calls. There are essentially no laws governing personal conversations recorded inside a home or business by the owners or principal occupants.

Anonymous said...

I live in Minnesota which is a one party state. Recently, I have heard my ex be verbally abusive to our 5 year old son as I was walking up to his house to pick up a t-ball set. I believe that this is not the only time he has been verbally abusive to our son (mostly its towards me in front of him)but that time it was definetly towards our son as he didn't realize I was walking up the sidewalk. I'm afraid for our son and believe it is happening more often than not, but cannot prove it. I would like to know can I bring my MP3 with voice recording when I go to his house and record the conversations as I am walking up and between us and could I use that in court to verify my journal details?

fixyourthinking said...

these laws and this forum apply only to telephone/cellphone conversations ... being in a one party state applies only ... I repeat ... ONLY to recording cellphone and telephone conversations. Face to face,tapping,snooping is considered tresspassing and ivading privacy if not recorded on your property. Please read this forum as suggested before posting questions.

Anonymous said...

I was interviewed by police today regarding a matter where they claimed to have me admitting to a crime on a recorded telephone call (where the caller was in on it with the police). I was unaware of the call and am not even sure what was said... I live in a one-party state (Iowa); how easily can this alleged recorded phone call be used in a court to convict me of a crime?

fixyourthinking said...

You are in a one party state ... as long as the other party KNEW the police was recording the call they can admit the evidence into court.

You can try to claim that you were set up - most jurisdictions don't allow police entrapment. You will want to make sure that the call is played in its entirety as well for two reasons. 1) Context of the statement 2) Confusion of the issue - a lengthy call will be lost in translation with a jury.

You may also want to check into your rights as far as police involvement - believe it or not an individual has more rights to record a call than the local police officers do. The only way this makes a difference is if the nature of the call was terror related or you made a threat to kill a President or high ranking government official.

Again, make sure that their recording is within context and object to any interpretation as hearsay.

Anonymous said...

My ex-boyfriend used to record our conversations that took place from my cell phone and/or my home phone to his home phone. The recording device was on his home phone. We were both living in Illinois. He never informed me he was recording these conversations. I found out a couple months after the break up that he had recorded the calls. Was that legal or illegal? If illegal, is there recourse and within what timeframe? What kind of evidence is required? I've read conflicting information about Illinois' 2 party versus 1 party scenarios... thx

fixyourthinking said...

Case law supports Illinois as a 1 party state ... so ... your boyfriend has every right to record any conversation he wishes.

Also ... you didn't state if he plans on using some information about you in a malicious way ... if so you could sue for defamation ... you could confuse the jury a bit ... saying that you are a 2 party state. You may can make the case that these types of situations must be reviewed on a case by case basis - since by law you are a 2 party state.

If the information isn't being used in any way - you can't sue just to get back at him though - no matter what the law.

Anonymous said...

If two private citizens live in a two party state, and one learns the other is illegally and without consent recording the phone conversations between them, what steps can be taken to stop it and prosecute or punish and ensure the offender no longer participates in the illegal activity? The recorded information won't be used in any legal way against the unknowing individual, but it is a HUGE breach of privacy and trust!

fixyourthinking said...

By continuing your conversations with the person recording is consent TO record - it is hard to argue a technicality.

It is the use of a recorded conversation that constitutes breach of the law.

You are not a judge, jury or prosecutor ...

If this person that is recording your calls isn't using this information in any way against you then it is a technicality that must be sorted out separately from your case. Arguing an issue such as this will test the patience of your judge or jury. NOW ... if a recorded conversation is admitted as evidence or the attorney mentions "in recorded conversations we have Mrs. X saying such and such" THEN they are using this evidence to infringe on your rights.

If the person is not using the information against you there's no foul.

Case in point:

If the speed limit is 55 ... you must not go above 55 ... You shouldn't get pulled over if you stay within 10 miles an hour ... however if you hit someone and it is determined that you were exceeding the speed limit - you will be ticketed for that offense. In other words, the law is the law - it can technically be broken - until you have used that broken law to infringe on the rights of another.

I hope that makes sense ... I discussed this answer with several friends and my wife and this is the best example we came up with. It is the "unlawful" use or action taken as the result of a broken law.

Anonymous said...

Per the technicality, I did not have another personal phone conversation with this person after learning of the recordings (I learned of the recordings in a face-to-face conversation), but did have to continue working with him, and thus had to talk with him about work at work. Does this qualify as "consent to record"?

fixyourthinking said...

Again ... it's kind of a "no harm no foul" kind of thing ... unless this person tries to use the information by saying "listen to this conversation" or by publishing the conversation ... then you have recourse. Until that point it's kind of a he said he recorded it but there's no proof (even if you saw it/heard it) ... it will have to be published or subpoenaed.

Anonymous said...

RE: two party consent situation above

You are correct in stating I am not a judge, jury, or prosecutor. Neither am I a member of the Illinois or United States legislative branches of government, however, I am a human being and a U.S. citizen entitled to an opinion about personal privacy, and I believe the current interpretation and application of the "two party" law is faulty.

To use your 55 speed limit scenario... if it is deemed okay, or safe, to speed up to 10 mph over 55, then the speed limit should be 65. The speed limit should be the speed at which those speeds which exceed it are ticketed for violation of the law itself because of the significantly greater potential for the danger and infringement of other drivers' rights. It's arbitrary to set a limit then say it won't be enforced unless and until harm is caused or exacerbated by the very act that violated the law in the first place. The potential for harm is present, and should be punishable w/out proven harm having occurred.

Regarding this matter, how is one to realistically monitor every conversation and search all possible means of publication that the individual possessing the recordings engages in and has access to? It would be an insurmountable task, and therefore should not be required when proof of the recordings exists. At the least, it should be required the recordings be destroyed and the offending individual fined, as there is no constructive reason for the recordings to continue existing.

This is just my opinion. I realize this is not the forum for changing the laws. The recordings do not contain abusive, threatening, or offensive interchange. It would be a scenario of him saying "here, listen to this…" etc. ... just as he had me listen to someone else's recorded conversation, which was when I confronted him and learned he had recorded mine. He would not outright admit he had played mine for others, but why would he admit guilt and harm?

fixyourthinking said...

Actually this website HAS changed the law (Bidzirk vs Smith)

Your post is one of the best in this forum because it helps clarify the true argument - one that I think Illinois judges have helped (in my opinion). I appreciate your comments. Let me try to explain something to you - a concept about law that's hard to grasp and hard to explain.

YOU have unalienable God given rights according to the constitution. However, that only means something until those rights are taken away.

Meaning, if someone records you out of fetish, folly, or obsessive compulsiveness - it is THEIR right to do so. When they use that to obstruct your pursuit of hapiness and freedom - THEN they have broken the law.

Going back to my example - cops by law can't pull you over if you are within 5 miles of the speed limit. (some jurisdictions its 7mph) Most won't pull you within 10 depending on the terrain and general traffic flow.

This being said, a speeder isn't infringing on anyone's rights by speeding - that is until he becomes a reckless driver by weaving in and out of traffic - even so ... he must be caught. The law is neutral. We depend on obeyance as a civil society - that doesn't mean that the people that break the law are interfering with your rights. If they harm you and you have tangible loss THEN they've broken law to the extent that punitive action is necessary and demanded by all who live in a civil society.

To claim otherwise is comparable to "taking down Christmas decorations from state buildings" - what harm has come to those that complain?

Anonymous said...

I live in a 2 party state. A person from a 1 party state recorded my cellular phone conversation without my knowledge while I was in Texas a 1 party state. What state do I go by. This info is going to be used in a suit filed. I never would have jokely said things if I knew I was recorded. What can I do to protect myself.

fixyourthinking said...

Excellent question:

You go by the laws of the states that both of you are in at the time of the call. Since you were in "1 party states" - the call CAN be recorded - since only the recorder need know in these states. You always go by the laws in the state of the person intended to be recorded.

Make sure that all conversations are played in their entirety if used against you - so as to provide context and tone. This request can also serve as means to bore and confuse a court.

You can always object to use of a recorded conversation - using the "2 party state / residence" argument - make a judge - then jury ( if present ) decide on whether it is admissable. This is a reasonable objection - I'd make a judge take recess to decide this - he may have to make an opinionated decision - that may be in your favor.

Anonymous said...

Hello,
A lady down the street was looking for her missing teenage daughter who is friends with my teenage son. The mother informed me that another woman in our neighborhood was a child predator and would not leave her teenage daughter alone from age 14 to 16. It just so happens that the predator was the mother of children my younger children played with and had even spent the night with before I became aware of the danger.

I believed the woman who was looking for her daughter, but I still asked for proof because she had told me she had recorded phone calls between her child and the predator from their home phone. She gave me a CD. It was enough to convince me that the mother's story was completely true. My son & another of his friends were told by yet another teen - an acquaintance - that the missing teen was indeed at the predators house. I called the mother & told her. She called the police who surrounded the house and caught the teen running out the predator's back door. The predator & teen had totally different stories as to why, how and for how long the teen had been at her house. The teen was arrested for obstruction of justice.

About a week later the teenage girl came to our house - she had never come here before. My son was an informant. He told me JUST ABOUT everything. He pretended to be on the side of the teen girl and the predator who were now in a relationship. The very next day, the predator started emailing my son. He showed me. He was instructed to NEVER delete any communication with the predator, to or from, until I had printed it.

From doing a little eaves dropping I discovered my son had not been totally honest with me. For this reason, plus I know that child predators of this woman's sort, groom a child for a while before moving in on them, I decided to bug my phone. The teen girl was going to live with an aunt across the country in order to escape the predator and it seemed the predator had her sights on MY child for her next victim. I asked the Mother of the teenage girl if I could borrow the recorder for my own phone because I noticed they (my son & her daughter and other teen age friends) would be locked in his room with the phone for hours. She agreed. I connected it and found that when the predator discovered my son was not at all attracted to her she was in the process of setting him up (age 14) with another, more attractive adult (age 30's). But that's not all. In the course of a few days I recorded the predator engaged in lewd and lascivious language with the 16 year old girl in order to entice the child. The predator was describing sexual acts in detail and telling the 16 year old girl it is what she wanted to do to the 16 year old girl. I write it that way so you do not become confused - it is a grown woman and a 16 year old girl. Though the girl, now 16, is of legal consent, has been the victim of the predator since she was 14.

The predator is now in hot water because of my taping. She just had 2 warrants for her arrest. Considering it was initially for the purpose of protecting my own child from a "known" predator, and in the course of that protection I managed to obtain the information the 16 year old girl's parents needed in order to press charges on the predator, can I get in trouble for this since I was not actually on the phone at any time. It was my house phone, my husband, whose name the phone is in, was aware of the taping. All parties live in a 1 party state.

Let's just say the judge does not toss the recordings out due to the nature of the evidence within, what would happen to me if the defendant/predator wants to counter sue? Will I get my hand slapped? Will I get a pat on the back for taking another predator off the street? Or will I get thrown in the Klink for doing the morally right thing?

Alternately, If the evidence does get tossed out because it is not admissible, can the defendant counter sue even though the evidence was not presented?
Any info you can provide will be appreciated and sorry this was SO long but it had to be as this is a very complex question from a very complex scenario.
Thanks

fixyourthinking said...

The evidence will be admissable.

Punitive damages are hard to get to trial without some kind of pendant tangible litigation - can you think of anything that cost you money? What about taking your son for a psychiatric visit - if something is "wrong" there could be tangible damage.

fixyourthinking said...

You can sue for anything ... I didn't know if you wanted monetary compensation (from the predator, which is what it sounded like to me) or not. You can certainly get your local DA to press charges against her with your evidence. The DA should be able to tell you more, but that's who you need to contact.

Your comments seemed to ME like you wanted civil charges brought against her which is very hard to do in a case like you have, but if criminal charges are what you are after ... then by all means take your evidence to the local district attorney and speak with them.

To contact your DA if you don't have the number or know where they are - call your city hall - they will direct you.

You will be in no trouble for the recordings - but your DA would be better qualified to answer that in full.

Anonymous said...

I live in Washington State. I work for a company that employs secret shoppers (by phone and in person). I found out today some information about a website where we receive some of our telephone inquiries from. Evidently, if someone uses the specific phone number posted on that website, the call is recorded. I was extremely disturbed and upset this morning when I came to work today and found that the owner of this business 'pulled' a call from 9/8/08 & sent it (mp3) to my boss (who is also outraged) after they/she listed to it. Evidently, it has been decided by this owner that this is to be the new secret shopper venue. They told no one. I don't like it. They can pull virtually any call made with this phone number. There was no notification. Can I do anything about this? Not only that, but, since this is a 2 party state the potential clients do not know they are being recorded. Is this legal?

fixyourthinking said...

1) WA is a 2 party state - with exception of Indian Reservations and Internet telephony based calls.

2) If you have tangible damages or a breach of contract issues - then you can sue in state court - if the calls don't fall into the 2 exceptions.

I would seriously suggest seeking out an attorney.

Anonymous said...

Good Morning! My spouse and I are going through a divorce. My spouse recently informed me that my telephone conversations with other parties had been recorded via a voice activated dictaphone, secretly planted somewhere in the residence or in my car. This has occured on an unknown number of occasions without my knowledge or permission. We live in the state of Texas - which is a One Party State (I think). I know you aren't a lawyer, but I'm a bit confused on how my 1st Amendment Rights and United States Codes, Title 18, Section 2510 (2) protect me, but my spouse claims the Texas State Law supercedes these, and they do not apply when it comes to my privacy on a telephone.

fixyourthinking said...

Please don't think I'm being a jerk with my response - I want to help anyone who uses this website for information.

What 1st ammendment right of yours was violated?

What was recorded that can be used against you and has his access to these recordings caused you compensatory damages?

Your state law DOES trump the federal law in regards to recorded phone call conversations.

Texas IS a one party state - only he need know of the recording.

Your being married allows him to have the device to record you at all times without your knowledge under a "trusted partnership" statute.

BlueBrained said...

What is the law if the recording takes place in Missouri by me and the other caller is in Illinois. This is a personal call not business related.

fixyourthinking said...

You always go by the laws in the jurisdiction of the person you are calling UNLESS you are their gaurdian, spouse, or financial assistance.

bluebrained said...

So in my case since Illinois is a one party state I can record without the other partiers consent?

fixyourthinking said...

Illinois has been ruled both but case law supports it being a one party state. Sending a letter as suggested in the article would be a wise move. DO NOT record until receipt of the letter can be proven.

Anonymous said...

In Oklahoma, if I believed my fiance was having an affair and I recorded incriminating voice-mails retrieved from her cell phone and shared them with the wife of the guy she was secretly seeing, could a civil lawsuit be placed against me by the husband and/or my fiance?

fixyourthinking said...

To Oklahoma Fiance:

That's actually tricky even though you are in a one party state and may be able to prove a "trusted partnership".

NEITHER of you knew that one of you was recording the phone conversations AT THE TIME they were being recorded.

The "recording phone call laws" are very subjective in interpretation.

My best advice would be to find a friend or a friend of a friend who is an attorney and ask him - show the attorney this article and the comments - read through it carefully and come to an educated answer.

Thank you for the question - that was a really good one.

Anonymous said...

Follow up to: Just a point of reference regarding my question below; I did not record a phone conversation, but rather, I RETRIEVED HER VOICE MAILS & RECORDED THEM. Thus, I accessed her voice mail (I will say we both knew I had access to her voice mail; How else would I know her password that could be one of 1000s of password combinations?). Could a civil suit be brought against me by my (now former) fiance or the cheating husband?
Orig comment/question:
In Oklahoma, if I believed my fiance was having an affair and I RECORDED incriminating VOICE-MAILS RETRIEVED FROM HER CELL PHONE and shared them with the wife of the guy she was secretly seeing, could a civil lawsuit be placed against me by the husband and/or my fiance?

fixyourthinking said...

Access is not permission - that is my interpretation.

I do believe you would be liable if you used the recordings.

Anonymous said...

(I have read all the Q & A's posted to try and save you the time of answering something you've repeated already. But to no avail my question is different.)

My boyfriend has been in a long drawn out custody battle with his ex. He won partially custody with planned visitations and scheduled phone calls. She (the ex) lives in West Virginia (1 party). We (me and my boyfriend) live in Maryland (2 parties).

I've read enough to understand that your no attorney. But any insight would be lovely...

I and my boyfriend got into a fight. Everyone knows you cut down a person as best you can when you’re in a fight. He was working and hung up on me. I continued my rant on his voicemail (some very angry things were said).

About a month went by and things were fine (with us and his crazy ex...Very out of the ordinary). Then his ex started slacking with her court ordered visitations and phone calls that she "allowed" my boyfriend every now and then. (Always dangling their child over his head) Next came bribing for them to get out of her life and just forget of his daughter. Now blackmail to get away or face Jail time, and harassment day in and out. (Their trying to scare him out of going to court and dropping charges with her impending jail time.)

All the sudden my boyfriend keeps getting all these unknown numbers calling at crazy times, multiple times a day for weeks! Then his next visitation came up and she refused to meet (again) saying his daughter was saying some pretty concerning things. It included everything from a to z! That everyone but her and her parents (which enforce her to be the scum that she is) were doing or saying things to their daughter. (Nobody’s been able to talk to her for months now, and the plot thickens every week).

The story changed a bunch of times and my boyfriend filed with his lawyer a letter to inform her of her contempt of court in 5 different ways (literally). My boyfriend called down to leave yet another unanswered call trying to contact his daughter. But this time his ex's father answered. The long drawn out conversation took a scary turn after threats of a conversation (dispute)(we thought he meant between 2 people) that we couldn't think of EVER having around his daughter for one. Or ever talking about anything of any sort in a place where they could have heard at all!

So we went on truthfully denying anything he said. But then he got frustrated and played his card. Clips from that very angry voicemail. I was dating back to every fork in the road our relationship we ever hit in that thing. Bringing up the conversation that his ex had with him months before. About that mother falsely accusing him of being a child molester, and different issues that we were having personally. I was wiping everything in his face.

He laughed at us as we got quiet and I was livid that I no longer felt safe to interact over my phone freely.
I went on to tell him what he did was illegal, but he said he had a cop friend of his pull it out of my boyfriend's phone and that it was absolutely fine to use in court to try and show that we're unfit people...
She didn't know his password to the voicemail. But the unknown numbers called VERY OFTEN. I'm guessing in the lonely nights she wanted to know how we were doing and maybe typing in #'s (his wasn't hard to figure). Well now that she has gotten my number from the voicemails, the unknown calls are harassing me.

I don't know if it's legal for cops to do this, or if she can use anything found. Even though I'm sure it will help her in NO way being that it's just a heated fight left on my boyfriend’s voicemail. But is this legal to basically hack into some ones voicemails (NOT TAPPING CONVERSATIONS [AS FAR AS I KNOW], BUT RECORDING THEN DELETING THE VOICEMAILS)?! And do you know of any steps we can take to trace these numbers or show what we know they did?! I know it's an entirely other case but after the custody cases are over I want to know if we can/should pursue this with them.

fixyourthinking said...

Thanks for the detail ...

1st ... No one who lives outside your home can tap your phone without knowledge unless terrorist related ... not even law enforcement. That issue would be best taken up with your local district attorney.

2nd ... You and your boyfriend can prove a "trusted relationship" - you have the same access and rights to privacy. If she is calling you - and you live in a 2 party state. She must inform you in writing and you must deny her IN WRITING to record your voicemails,

3rd ... It is your reasonable responsibility to obtain a new voicemail system that is more secure or has a different password scheme (or no remote access) - even though it is still illegal to access anyone's voicemail (regardless of 1party/2 party law). You have a responsibility under the law to make it reasonably difficult for someone to steal your stuff. IE ... you almost never win in court if your password is 1234, your dog's name, your first name, etc etc.

4th ... If you have a&t or verizon home phone service you should be able to access all your records for a year ... If the number is blocked you will have to obtain a search warrant from local law enforcement or the district attorney.

Your best line of pursuit at this point would be to call your phone company and ask to get in touch with their legal department regarding procedures for obtaining blocked numbers. Obtaining this info can be pricey but is recoverable if you win.

So ... to sum up:

District Attorney

Local law enforcement

Legal Dept at phone company

Please know that the main reason these kind of cases are lost in court is because of crummy incompetent attornies - if you are seeking damages (which is the only way it matters) ... You need a great attorney.

One way you can end all of the frustration is to get your children a MacBook with a built in iSight camera ... You obtain a mac as well ... Have scheduled times when you are suppose to chat. This eliminates phone harassment and gives a more personal experience. You can also be on the road or out and about and just take a break to talk to your kids at any wifi hotspot.

Then you can get a private number and only give the number to those that need it.

Anonymous said...

I live in New York City and work in a hotel overnight. My manager called me at work from his home and we had an argument. Now my co-worker said that he may use the phone conversation against me. I am aware that NYC has the one party law but I had no knowledge of the hotel recording the phone call. Furthermore since he was at home and not working am I correct to believe he should have recorded the phone call from his home. Can he use the hotel's system against me when he was at home the whole time?

fixyourthinking said...

These laws apply only to private home phone use and or recording of a phone call from ANOTHER business. Your manager was well within the confines of the law to record the conversation. As I have stated several times in this forum ... your boss has a trusted relationship with you & you are also not on "your property" - so as harsh as it sounds ... you don't have rights there. Kind of like when a parent says, "When you're in my house; you have to go by my rules."

What you may be able to get him on is entrapment or harassment as the owner may not like your manager arguing with people over the phone.

Anonymous said...

What if somebody calls me and says "this call may be recorded". Can I record this call also without letting him know?

Thanks,
Andrey

fixyourthinking said...

if someone records your call ... you are entitled to record and entitled to get THEIR archive of that recording.

Mark said...

I am a small business sales rep for a security alarm company in Texas. I recently sold a burglar alarm and a security camera system to a customer who ended up being dissatisfied with the quality of the camera's recording at night and other installation issues. The customer basically claims I promised he'd be able to see clear night recordings in color (they actually revert to B & W in the absence of enough light) which I did not. Most of his complaints were petty and none of the promises he claims I made are in writing, but I set up a service call for him anyway to address the issues we did have control over like the quality of the recording (can be adjusted per resolution rating), and to adjust viewing angles of two of the cameras he complained were not capturing what he wanted. After some initial problems in getting the service call scheduled (first time the techs arrived only for a sign-off of the burg alarm, and 2nd time a non-spanish speaking tech arrived un-announced while the owner was out), a bilingual tech finally arrived and called me from the customer's store saying the customer was upset he had arrived without new cameras! I was flustered since I had made it clear to customer we'd only be adjusting and relocating existing cams, not replacing them for newer more expensive ones at no charge. I made my frustration clear to the tech and I'm sure I said a few choice things in there about how the customer was only looking for a free upgrade, but I also sincerely hoped the tech could possibly placate customer by following through with the original request of improving video quality and relocating and/or adjusting the cams. Well, it turns out the customer had set me up and had handed the tech his own cell phone to talk to me after pressing a record button on the phone. I only found this out earlier today when my sales manager scolded me about how the customer knew I had supposedly told tech to simply humor him or entertain him by moving the cameras around as if we were really doing something! Again, I'm sure I had a nice tinge of sarcasm and frustration when I told the tech to finish what the original service call request was, but I don't recall being that blunt and insincere. More importantly, however, I am EXTREMELY pissed-off that this customer dared to set me up like that, invade a private conversation, and intentionally tell the tech an outrageous lie to get my hackles up and record my reaction. Plus, the recording definitely damaged my workplace relationship with management since my sales manager made HIS manager aware of the situation as well and makes me look like a scumbag salesman. My question is this: is what the customer did to me legal? TX is a one-party state but he was not a part of the conversation and neither the tech nor myself knew we were being recorded on his cell phone. And what is my recourse for him doing this to me and damaging my reputation at work?

fixyourthinking said...

Thanks for your detailed story ... you gave the perfect example of how one CANNOT be recorded in a one party state. Did your technician KNOW the conversation was being recorded by the cellphone? If not ... neither you nor the other party in the phone conversation knew of the recording - therefore it was done without consent and illegally ... his recording could be put under a restraining order.

Anonymous said...

if i call a number that is registered to washington wich is a 2 party state but the recipeants say i am calling ohio how does that workand i am in ky

fixyourthinking said...

All calls are governed by the state where one makes their residence ... in other words ... If this person RESIDES in Ohio ... then those laws are applied to them. If they reside in Washington ... they are bound by those laws.

The only time this rule doesn't apply ... if the caller or called is overseas.

Anonymous said...

I have recently been fired from a very small corporation. My employer was suspisious and recorded my extension phone calls. He recorded my plans to start a similar business. He also recorded conversations to secure vendor/supplier contracts. I have not contacted any of my previous employers customers. I have not purchased any supplies. I received a threating letter saying I have destroyed my former employers business and I should stop my plans for a new business or he will disgorge my profits. My question is... can my previous employer use the recorded phone calls in court as evidence or only as a reason for dismisal?

fixyourthinking said...

There's a number of factors that could change this reply, but see if you can extrapolate those:

1) If you were AT the business when you made those phone calls or using a corporate cell account ... then your employer has every right to record any phone conversation you make from his paid for lines as he/she chooses. If they recorded you while NOT at their business on your cell phone or your home phone ... the evidence is inadmissable unless one of the above laws can supercede.

2) If your employer has a no compete clause in their contract ... then they can get the phone evidence admitted ... even if the law is on your side - but many states are declaring "non competes" unconstitutional.

3) If your employer is harassing you ... you may want to seek a restraining order and subpoena the recorded conversations themselves ... if they contain threats ... a jury will not look on your former employer kindly.

Hurting said...

Anonymous said...
I have recently been fired from a very small corporation. My employer was suspisious and recorded my extension phone calls. He recorded my plans to start a similar business. He also recorded conversations to secure vendor/supplier contracts. I have not contacted any of my previous employers customers. I have not purchased any supplies. I received a threating letter saying I have destroyed my former employers business and I should stop my plans for a new business or he will disgorge my profits. My question is... can my previous employer use the recorded phone calls in court as evidence or only as a reason for dismisal?

12/17/08 2:19 AM


fixyourthinking said...
There's a number of factors that could change this reply, but see if you can extrapolate those:

1) If you were AT the business when you made those phone calls or using a corporate cell account ... then your employer has every right to record any phone conversation you make from his paid for lines as he/she chooses. If they recorded you while NOT at their business on your cell phone or your home phone ... the evidence is inadmissable unless one of the above laws can supercede.

2) If your employer has a no compete clause in their contract ... then they can get the phone evidence admitted ... even if the law is on your side - but many states are declaring "non competes" unconstitutional.

3) If your employer is harassing you ... you may want to seek a restraining order and subpoena the recorded conversations themselves ... if they contain threats ... a jury will not look on your former employer kindly.


Anonymous said...

I did not sign a non-compete, but I did sign that I received the employee manual which has some non-compete language. Since I did not sign a non-compete, are the recordings submissable?

Also, my previous employer has not threatened me but has made the following comments to my brother about my new partner Tom.....

"Tom does not know how far I can reach"

"Tell Tom that he is on my hit-list"

fixyourthinking said...

Those sound like threats to me.

I would go about your business ... it sounds like your former employer has a serious erectile dysfunction/over compensation/loud bark/no bite problem.

You may be tied about the non compete.

A good attorney will always move to strike evidence ... especially if it's damning. Make sure your attorney refers to this forum. Also ... if I were you ... I'd take out a restraining order against him. It will look good in your case if it seems you had to resort to such a measure to cease his threats.

In the meantime ... DO NOT SLANDER OR LIBEL your employee on the Internet or with any relative or former associate.

Hurting said...

Anonymous continues...

I just met with my former employer this morning and found out he was given a recordings of my conversations before I signed that I received the employee manual.

fixyourthinking said...

Usually a game of details doesn't go well with a judge.

Anonymous said...

Quick question. I live in Michigan which is a 2 party state. Now my mom died and we are going to be going to probate. My sister has told me on the phone she will make sure she fights everything and we loose it all on probate. SHe only makes these threats on the phone. Along with some other verbal threats if we don't agree to her demands. I know she won't do it if she knows she's being recorded. She's pretty evil. Now can I record her on my personal phone to prove intent to the judge?l

fixyourthinking said...

Send her a notarized certified signature requested letter as mentioned in this article. Include this line:

"Note that your threats and demands from this point forward will be recorded."

You must date all future recordings with a time stamp at the beginning and end of the conversation.

Even if somehow a judge will not allow the recordings ... he will be intrigued to hear the "threats and demands" and may ask you for clarification ... where you may be able to summarize and say the recordings back up your claims if he would care to listen.

Anonymous said...

I live and work in VA. I have receintly found out my now former employer installed and OASIS recording system and records all incoming and out going phone conversations. I am trying to find if there is anything diff. regarding the recording laws in the work place spacific to my state....Years ago there was a code I found using actual law books however much has changed since then.....I am going to double check because additionally I think the do use Voip there.

fixyourthinking said...

any employer in any state regardless of telephony technology can record audio, video, or server/ computer action.

Anonymous said...

Even if they are recording consumer's calls and not notifying the consumer that their call maybe monitored or recorded

fixyourthinking said...

It's not a private conversation between two individuals ... it could be challenged ... but most likely there is some mention somewhere (possibly written) that all communications may be documented or recorded.

What type of business are you referring to and are they a large company?

Anonymous said...

After calling 911 on my husband for DV several weeks ago, my husband went straight to his office (state of Florida government position). From his office, he called me several times. During one call, he had me on speaker phone. He was telling me to drop the DV case/charges. A few days later, the police arrested him. When arrested, my husband had the recording device with unauthorized (and unknown) recorded conversations of me. Between recordings, you can hear him talk to subordinate employees. He is in an upper management position for the State of Florida, which has one of the most high profile national cases going on at the moment. The recorder is State of Florida property work issued device. Is this considered an illegal wiretap. Where can I obtain more information? Thanks so much...

fixyourthinking said...

Plain and simple ... Florida is a two party state ... he must be recorded as asking you if he could record and you must be recorded as saying yes or continuing with the conversation after he informs you.

This applies to each separate occasion where he called you or you called him.

This IS a double whammy since he is a government official. I would just go to the news station rather than an attorney - not only would they help ... but they would investigate - much more capably than an attorney.

It seems as if this tape might have been used for your belittlement amongst others and you will have a clear defamation case.

In my research ... I have found very little case law for the state of Florida regarding recorded telephone conversations. I will try to look up some today.

Going to a large University library in Florida and looking up some case law may help.

fixyourthinking said...

This is a follow up to "Domestic Violence From government official in Florida":

First, if this person held any prominent government job I would expect this to be in the news - some Florida paper - at least a local paper - if not one of the big Florida papers ... I was not able to find any information. If he was arrested ... one cannot be charged with "Domestic Violence" - it is an assault charge modifier. If he recorded your telephone conversation ... your attorney could subpoena that "tape" and use it as a further modifier for the assault charge. It could even be transformed into aggrivated assault with this charge ... as you could claim he beat you then tried to rub it in or get you to say something in the heat of the moment to cover it up or justify his bad behaviour. A "wiretapping charge" is a very serious offense ... notably people see this offense as more believable than a domestic violence charge or rape charge - particularly men - which are in the majority of the arrest/prosecution part of any case. Wiretapping is also a buzzword that, in the public eye, is a loathsome thing to do.

Again, your best angle would be to make a prominent Florida television news station aware if all you know.

Anonymous said...

I live in Colorado, I was having trouble with a daycare center following a court order concerning my child who went to the school.The school employed my ex husbands new spouse and the court order said that my child would not be allowed in the same class with that spouse.I kept finding my child in the same class with that spouse, I took the issue to the directors of the school and was told that the school did not have to follow the order, so My boyfreind went back to the school with a handheld tape recorder, it was concealed, he also had a copy of the court order and took it to the directors, he recorded the conversation, the directors did not know that he had a recorder, the directors of the school began yelling at him and screaming, he was being calm and cool. the idea was to document their behavior, on the tape in the conversation was himself ( being calm) Myself, and the director, as soon as the director began to yell and scream at him he displayed the recorder ( that infuriated the director further) the director upon seeing the recorder told him to leave the school but contuined to yell at him. He calmly left the school, the school submitted to the courts that he was told to leave for using profanity,( but the taped recording shows he was NOT using profanity.)Is this admissable, I have a court hearing to amend my custody with my ex on Feb 20th, the school is standing firm that he was kicked out of the school for using profanity in the school ( my child was also kicked out of the school) But since I have the tape I can prove they are lying. Colorado is a one party state, is my tape going to be helpful in court??

fixyourthinking said...

This forum deals ONLY with telephone & cellphone recordings. You CANNOT enter a business and record without a warrant or permission. Most likely you have invalidated your court order.

Anonymous said...

I read every comment, specially the ones that applied to me. I was taken in under a warrant, which dumbfounded me in itself. It was for a sex crime which I did not commit, which is irrelevent to this forum. I live in Florida, which is a 2-party state. The two detectives who interviewed me in jail had a recording which they said was linked to my cell phone. It was apparently of me talking to this other individual. My voice is barely recognizable, but they said they digitally intercepted the call and recorded it. They want to use the call to charge me. I made the phone call to the other party, but I gave no consent to any person to being recorded. Could they use the phone call in court to possibly charge me, or is this phone call inadmissable. I have talked to two lawyers who said they could use it, but EVERYWHERE I read it says they cannot use it due to me not giving my explicit consent. I know one lawyer already lied to me about me being charged (I haven't yet), so maybe they are just trying to bait me into hiring them real quick before finding another lawyer. Any advice or input would be great. Thank you very much.

fixyourthinking said...

The ONLY times you relinquish consent in a two party state is when:

1) You are a government official

2) You are using a corporate issued cellphone and it is contractually stated that the calls may be intercepted AND the issuer of the cellphone has allowed a warranted tap

3) You have already agreed to a previous or ongoing tap onto your phone

4) You call a law enforcement officer, judge, or government official

The phone call, is in all ways not allowed into evidence, if the OTHER phone was being tapped and did not include a message that the call was being recorded or if the caller did not say you were being recorded - remember - staying on the phone after someone informs you that you may be recorded IS consent.

Anonymous said...

Scrolled through all the comments. Wow, it's a couple years there. Nice of you to give out the advice.

Anyway, here's my situation. I live in PA. I am making calls to my mortgage company in TX. When I call them in TX from my cell in PA, they always have a disclaimer at the beginning of each call that the phone call may be monitored or recorded. Am I OK to record the call on my end as well?

Anonymous said...

Hi! Me from PA again in regard to calling mortgage company in TX. Last time I spoke with them the girl got a little rude and I stated that since the call was being recorded she may want to treat me with some respect. She said I wasn't allowed to record the call. We argued about it and she put me on hold. She came back on and said her supervisor toild her to state that she does not agree to let me record but then continued talking to me about my account for half an hour. How does this affect the legality and use of the call in court? Again, I am calling from PA to TX. Thanks!

fixyourthinking said...

Not only can you record (If being recorded) ... but you can request the recording from the other party if they do any more than "monitor".

You may have to speak to their legal department for a request.

To clarify ... You can record anyone whom you allow to record you.

fixyourthinking said...

If you are being recorded and you consent to the recording ... you do not have to even tell the other party you are recording them ... a supervisor usually has complete ignorance of the law I'd legality of recording telephone conversations.

Anonymous said...

Thanks much for your advice!

Anonymous said...

Now here's a fun question... As stated, face to face recording can't be done. Only over the phone. How would it play out if you were in the room with someone you wanted to record "face to face" and you called up your own voice mail from a speaker phone to catch the "face to face" conversation. Technically that would be over the phone and permissible because one party gave consent. (I‘m in a one party state)

fixyourthinking said...

Now you'll have a whole new charge - entrapment.

It's still counted as a recording device ... you've just circumvented normal means.

Good question though.

Anonymous said...

I work for an attorney in North Carolina. I have been working there for over a year, and I just recently found out a few months ago that every telephone call that I have ever had at the office (both incoming and outgoing) has been recorded since the day I began working there. I did not know that the conversations were being recorded, and neither did the clients/people on the other end. I am usually by myself at the office for the majority of the day, and it has become apparent that my boss has heard every "private" conversation that I have had over the office phone. He does not know that I have found out about the recording device, and he continues to record me everyday. Is this in any way legal? He is an attorney, so it seems to me that he would not purposely do anything knowing that it is illegal? If it is illegal, do I have a case? What type of attorney would I need to contact? What type of evidence would I need to gather?

fixyourthinking said...

First ... Your boss is covered because you are at a business using a business telephone.

Second ... Your boss (the attorney) is covered because North Carolina is a one party state.

Third ... It would seem by your comment that your boss is covered ... because their is no damage to attach "consensual recording" to.

What damage have you received as a result of this recording? Has the attorney let anyone else hear the recordings - leading to defamation. And at that, were the recordings actually defaming - were they heard by others out of context? Were they used to cast you in a bad light to peers or other attorneys?

What was the nature of the calls that you made?

The good news that I CAN give you is that if you were not aware and the party on the other end wasn't aware you may have a case. But again , you are at a business , in particular, an attorney = a business that relies on recordings.

You may want to contact your local DA and ask about the legality of your boss not having you tell customers on the other end that they are being recorded.

Also know that if you were calling a boyfriend or such and using explicit sexual language and or expletives ... you may not want to draw attention to your dirty laundry ... technically the attorney has a right to use the conversations against you to prove you were using work time for personal matters that did not advance your job.

Anonymous said...

If I made a call telling a neighbor that if they leave their children home alone again for a week, and leave the continental U.S.,they could go to jail, can that person use that recording against me in court to establish harassment? Is this even considered a threat or harassment?

fixyourthinking said...

first ... the recording party must follow your state's law.

second ... Harassment is usually about tone, tact, and frequency. If the neighbor said don't call them again and you did ... you may be harassing them.

third ... IN MY OPINION ... a threat is only a threat if you are offering to physically or financially harm someone ... and you don't follow through. Whatever you do, from this point forward DO NOT COMMUNICATE WITH THUS PERSON AT ALL ... just follow through ... call Social Services, The Police, etc ... Let them get charged for child abandonment, endangerment, and anything else. Do not suggest to authorities what is being done ... Just state that you believe minors are being left alone for more than 24 hours and you would like an officer to come check it out. Also call social services ... they tend to act a little more.

Do not communicate in any way further with this individual or their children ... from this point on you should be ALL action.

Anonymous said...

I'm in Florida and know of a situation where a man uses an on-line service (ring central) to secretly record all his telephone conversations with anyone and everyone. He makes an enemy of everyone in his life eventually, then he posts the transcribed contents of these telephone conversations on line.

What should I do to stop him from recording and posting private conversations?

fixyourthinking said...

one cannot secretly record a telephone conversation in Florida - it is a 2 party state.

He CAN record Internet telephony or chat conversations.

Contact your state attorney general ... See the reference contained within this article.

Anonymous said...

I'm in California. Recently a large insurance co that carries my auto insurance phoned me and said they wanted to speak to me about a recent accident. When she ask for permission to record, I said no and she hung up on me.
1.By not giving them permission to record; Will it release them to do whatever they want concerning my case?
2.What about calls where people are asking you for personal info? for example a bank?
3.Let's get to nitty-gritty. Idon't like the idea of being recorded at anytime for any purpose. I'm not trying to hide anything but with todays' technology you can be made to say things you didn't say. Further,I consider it an Invasion Of Privacy. Are there consecquences that could come to bare if I say no to recording?

fixyourthinking said...

You have a contract that most likely says you can be recorded.

You need to act on this as soon as possible as your insurance company can sue you for any amount they are paying out.

Here's how you handle this:

Obtain a quality recording device yourself / call them ... Start recording ... Agree to be recorded if they ask to record you ... Do NOT in any way even hint you are recording them ... They have already consented by recording you ... Make sure they state the date and time of the recording ... If they don't; you state it. Be as general as possible ... Be as brief as possible ... NEVER volunteer an answer or a question ... If yes or no will do - answer that way. You will now have recording. The insurance company will have to take you to court to use the recording against you. You will have your unaltered recording in hand. You will object to anything out of context and object to alterations to the recording. You will also object to your insurance company attorney saying you denied a recorded conversation - on the grounds that you wanted to make sure they had the legal right to do so. (Say this with no further explanation or exposition)

If something out if context is played ... Request that the entire conversation be played.

If they are rude, have altered the conversation contextually or physically you may can get a default judgement in your favor.

You will need an attorney at this point and you will make the counter claim for his fees, your time, the recording device, pain and suffering , and fraud if altering or tampering is found.

Anonymous said...

Ohio- I was visited by the police because my child advised her father that I was taping her conversations. She found the device. She is 16 and has been in alot of trouble with the help of her father (or lack of supervision by her father when she has visitation with him). She did not tell me but the police informed me that her father and her filed the complaint. I told the police that I had nothing to say without consulting a lawyer. I contacted a defense lawyer and he told me not to say anything to the police and maybe they would go away. Isn't there such thing as vicarious consent? Her father will pursue this and I'm scared I am going to go to jail. Is there any Ohio case that could help me?
Then on the other hand, if they know that I am taping now, can I continue to do so without directly telling them?

fixyourthinking said...

The police and your ex are full of baloney - Ohio is a one party state PERIOD.

You need an attorney and or file litigation against your ex (harassment/filing police reports under false pretense comes to mind)

Please read the entire article again carefully.

I think out of anyone who's posted here recently ... you have the best case for damages due to a gross misunderstanding and abuse of law.

Anonymous said...

Thank you for your response. I know they are full of bull but I was visited by the police because the county prosecutor felt there was something to investigate. I have contacted 3 different lawyers and they say that there is no presence set in Ohio regarding taping minors. It seems like a no brainer because teenagers lie and try to get away with everything. I am the one that has full custody and is responsible for her actions until she is 18 yet I am not allowed to know or prepare for what she is doing? What's wrong with this country? It's weird that I can tape anyone as long as I know so why can't I tape my own child when I am responsible for her?

fixyourthinking said...

The "taping a minor" aspect has no weight when you are the legal gaurdian / parent ...

There doesn't have to be precedent to make a great case which you clearly have.

Lawyers are usually chicken about phonecall recording as it really is up to a judge usually and not a jury.

Some good research points would be the Ohio State or YSU library law section ... Maybe spend an hour or two?

Jim McGowan said...

I live in PA, a two party state, and I regularly record conversations with companies that I call or that call me. Not for business though. Almost all companies play a pre-recorded message that they are or may record the call for quality or security reasons. They don't ask for consent; they just notify. Once that message has played do I then also have the right to record the call? Without notification since they would have no presumption of privacy as they already know the call is being recorded on their end?

The reason I record is that a permanent disability and required medications often make it difficult for me to remember or understand the entire conversation. This way I can listen later to be sure that I do/did understand.

Thank you.

Jim

fixyourthinking said...

In general ... You are allowed to record anyone that records you ... Consent is by most courts constituted by continuance ... A construed contract if you will ... Also ... you have the legal right to record a business because of your situation ... In Pennsylvania you have the rights to record to insure legality (read laws above) ... Since these "prerecorded messages" don't ever have a press 1 to agree to recording or the other party doesn't ask directly ... They are essentially consenting to recording as well.

There should be no need for you to inform the business you are recording them.

Remember ... It only matters if you record someone and plan to do something with the recordings ... While you still have to follow the recording laws ... As long as you aren't recording for purpose of rebroadcast or quotation to ANYONE else ... In general you're fine.

It appears to me ... You're life may sometimes be on the line if you cannot truly remember things ... Just know that if you ever had to go to court you'd have to prove your memory issue to maintain the integrity of your claim.

Jim McGowan said...

Thank you for the amazingly quick reply!

Jim

Anonymous said...

In relation to debt collections at work or anywhere else.....Under the FDCPA (Fair Debt Collection Practices Act) it is illegal to harass people even if they owe you money. I am not an attorney everything in this paragraph is being stated for informational purposes only each individual should consult an attorney for specific advice concerning their specific situations. With that being said a couple other things they are not allowed to do which is outlined in the FDCPA it is illegal for them to call on Sundays in addition if you send them a cease and desist letter (make sure it is sent registered and certified United States Postal Service) even if you owe them money they can not continue contacting you in regards to the debt. Lastly in accordance with the FDCPA they cannot have more than one collection agency collect on the same exact debt, once the debt is transferred to a third party for collection the people who turned it over for collection may not call in regards to the debt. AGAIN I am not an attorney everything in this paragraph is being stated for informational purposes only each individual should consult an attorney for specific advice concerning their specific situations

fixyourthinking said...

Thanks for the info although it has little to do with recording conversations.

Anonymous said...

I'm in Texas. I am going through a divorce. We have a child, age 2, and I am trying to determine if my soon-to-be ex (let's call him "X")is actually stable enough for unsupervised visitation. I am not trying to take visitation away from X...but X is an emotional tyrant and I don't want to subject my son to it. He is harassing me over the phone at all hours of the night, crying, saying he's not in his right mind, he's depressed, indicating fear that everyone is ou7t to get him/against him...making wild accusations then folding when called on his "B.S." X needs real help and I've offered to go to counseling with X after the divorce so he can get the help he needs to be the best parent to our child. I was willing to go to the ends of the earth to help X feel connected and welcome - because of X's fragile state - but I am becoming overwhelmed with his neediness and don't think X can put our son first when he's running from things that aren't even chasing him. I want to record our calls so that I can protect my son from having to have unsupervised visitation with someone who refuses to get help for an emerging psychosis...even when everyone around him is offering their support, even me! Would this type of recording be considered malicious? I'm not trying to hurt X...I just want stability for our son.

fixyourthinking said...

You may record any phone call you wish Texas is a one party state. If you are legal gaurdian for your child then you can record any phone conversation she makes.

It would be good to follow the steps I outlined above.

Anonymous said...

I called a company in Texas to arrange payment on an account. I am from MA, a two party state. To my surprise when there was an issue regarding authorization of a payment she said she had proof of authorization on a recorded conversation she and I made. Was she allowed to record our conversation without my permission?

fixyourthinking said...

Sounds like your creditor is trying to be nasty with you.

If you wouldn't mind exposing their name (is it Chase?) that would help. Chase seems to be getting very aggressive with their collections ... that's why I ask. Exposing them (and others) may help in legislation.

As for recording calls ... most all creditors have pre-authorized consent by contract to record any and all conversations. Your use of their debt management services is a continued handshake that all business is fine.

gamer said...

This is great information. Anyone who suspects a cheating spouse, an impending divorce, or anything like that, having recorded conversations can be invaluable. My lawyer actually instructed me to record calls with my wife while the divorce was going through. Thanks for providing this reference!

Anonymous said...

Hi,

Tried to read through majority of the comments but still need some help. BTW You are doing a awsome job helping people out :).

On to the Question:
I live in Ontario Canada and my girlfriend who is 19 lives in Arkansas. I call her often but i'm under the fear that her parents are recording our cell phone conversations. They might be using "recordiapro" or some thing similar. Is this legal? If it isn't can i do some thing about it?

Also cell phone contract is actually under her parents name and the bills are payed by her parents.

Thanks for all the help.

fixyourthinking said...

Ok ...

1) It will take some time to find specific law to Ontario.

2) It's tricky ... Has she or you been told specifically that conversations are being recorded?

3) Since she's not a minor ... I'm not sure "gaurdian exceptions" apply ... however ... she also isn't paying the bill.

4) I'm not trying to be a jerk ... but if either of you can't afford to get "private" lines paid for by one or the both of you ... How would you pay for filing fees and or an attorney if you took it to court? AND ... If you did take it to court and she lives with her parents or they pay that cellphone bill ... what do you think that will do for her and her relationship with her parents or their willingness to continue to allow the two of you to talk on their dollar?

5) What damages can you claim? What is being said that is so private that you are worried about what is being said - recorded?

I don't want to make assumptions about your situation. I will try to find some answers regarding Canadian law. One alternative is considering talking on Skype for free ... buy her a netbook and a headset ... she could use a free library Internet connection and the two if you could talk interference and money free.

These are important questions to ask yourself.

fixyourthinking said...

http://answers.google.com/answers/threadview?id=320423

Here is Ontario Canada law regarding phone conversations:

Apparently, it's the same as US "one party law".

Since there isn't a minor involved I will assume that nothing illegal is being plotted over the phone and or no harassment is an issue.

You *OR* your girlfriend must (even if someone else is paying) be notified of the recording ...

You can call her cell provider and ask their legal department who to speak to stop the recording.

You can write to them and refer to thus reference.

I will restate that I am not an attorney and this not complete or proper legal advice.

Anonymous said...

I just want to say that recording phone conversations can be very beneficial when done legally. I am in a one party state, so we can record calls that we are a party to without notifying the other person.

I have an associate that was recently arrested on an assault/DV charge. In my area, a temporary no-contact protection order is automatically placed on the aggressor. The TPO can only be modified by order of the court. In this case, the argument was also recorded. After hearing the recording, the judge would only allow it to be modified to allow phone contact so that the two parties could discuss the children.

It is also in the court record that the tape showed misconduct on both sides, and that they both should have been arrested. I felt that the only reason the case was kept active against the defendant was to keep the protection order in effect more to protect the defendant than the alleged victim. This feeling was furthered at the next court hearing when the DA was adamant that any plea offer would demand that the protection order remain in effect.

The alleged victim is a very manipulating person, and she has made constant threats to the defendant if he doesn't do what she says. She also made numerous calls to me and another involved person about him and his activities. The defendant finally started recording the calls to use as a defense in his case.

I mentioned this to the LEO that had arrested him, and he said that they all knew that she was trying to have him arrested again on false charges, but couldn't do anything about it unless he came forward. We finally convinced him that it was the only way to protect himself, and he agreed.

The three of us involved provided written statements to the LEO and gave him copies of the tapes. The next day the LEO got an arrest warrant signed by the judge, and the alleged victim was picked up almost immediately. The "arrest" charges are three counts of stalking-threat/repeated communication with one of them having a DV enhancer.

Had not those calls been recorded the defendant would never have come forward, and his only proof of what she was doing would have been hearsay. She might have been able to continue and carry out her threats.

Anonymous said...

I would like to record conversations I make from a 1-party state to a government agency. The government agency has given me different information each and every time I call them and I have found it confusing because each time they always tell me, "You should not have been told that." or, "I can't tell you why you were told that incorrect information."

So, I decided to record the conversation to find out if I was mishearing information while researching whether or not I can use the recordings. This government agency owes me money and I received a letter that stated I should receive the money within two weeks if I hadn't already received the money. This was the first of June.

The only consistent information I have been given in all the calls is that my funds have been approved but the check has to be manually processed/sent.

I chose to record the calls starting today, because a) I am told different information each time I call b) I was told on my last call not to call again for a month c) From my call today, they had until the end of the business day today to contact me or provide my funds (Which obviously hasn't happened.)

On today's call, I kept trying to get clarification from the rep by asking her to repeat the information she was telling me because it was very confusing to me with all the different information and each person telling me I should not have been told, such and such, and that the letter I received in June should not have been sent even tough their records indicate my money was cleared in may, needing only manual processing of the check. But when I ask why I got the letter or what was preventing them printing the check I am told that it is internal processes they can't divulge as it is the government. I just wanted to know if there was something else I should be doing, or someone else I should contact.

So, after interrupting me several times when I was asking questions, I told the rep today that I was trying to get all this straight and recording the call. She told me that I was not allowed to record the calls. When I asked why, she said that they are instructed to hang up if someone records the call. But I wouldn't need to record the call if I hadn't been given different information and this has dragged on since February. She repeated that they are told to hang up when I stated it wasn't illegal to record calls. She hung up as I was about to add that I would stop the recording.

As a taxpayer, am I not allowed to record calls to government agencies? I was recording mainly for my own clarification, but with the treatment, misinformation and confusion, I'm wondering if they aren't trying to hide something if they will hang up when being recorded. This doesn't make since for the government to disallow recording, without even asking me to stop recording if that is really their policy. But I think it was another lie from the government.

I understand from reading that a government agency can record without permission, yet they prohibit recording from a caller who is frustrated and confused by all the different and inconsistent information. Is the government allowed to prevent recording?

fixyourthinking said...

As stated in the article their is no such thing as consent authorization or permission ... BUT the other party does have the right to hang up.

Don't be intimidated to stop the recording.

If you're in a one party state you do NOT have to state anything about recording. It would help if you would post the name of your state so I could grab case law for you.

Furthermore, there's ALWAYS someone higher in government - ask for a supervisor. If this is a large sum of money or continued check - go to the agency or to your local branch.

Anonymous said...

I am in Colorado.

Yes. I did try asking for a supervisor on a previous call to this government agency and was told that the only thing that could be done was for them to submit a referral.

Looking online further, I see their is a taxpayer advocacy service I will contact.

fixyourthinking said...

The attorney general would be of better assistance.

Anonymous said...

What is your opinion on this sceneio. My ex husband lives in Florida but maintains a New Jersey cell phone number. I live in South Carolina but also maintain a New Jersey cell phone number. Although he lives in a 2 party state, if he calls from his cell phone number to either my land line or my cell phone, wouldn't that be considered just having 1 party notification? After all, he could be anywhere in the country and make a call and how would I know where the call originated?

fixyourthinking said...

It is your responsibility to ask his whereabouts ...

Jurisdiction is key to these laws.

Also ... remember that you can record anything ... to be able to use the recordings (content or physical) you must have the right to have recorded them by law.

Laws go by residence, not number ...

If he resides in Florida ... when you call him you must go by the laws of Florida. If he calls you, you can go by the laws of South Carolina. But just know, it's always good to cover your bases and notify. A one time certified letter as mentioned in the article is more easily forgotten. Also remember that there is no such thing as permission or authorization. If he communicates with you by phone you have the right to record as long as you follow the law.

Anonymous said...

Although it makes sense that you do not need permission to record a conversation in a 2 party state, just letting them know that the call is being recorded is enough.

However, here in Florida, this is is vague: "(d) It is lawful under ss. 934.03-934.09 for a person to intercept a wire, oral, or electronic communication when all of the parties to the communication have given prior consent to such interception."
I would take that to mean it would be illegal to record without consent. What is vague is the statues definition of consent. Even though the FCC defines consent as verbal notification, Florida laws would generally superceed the FCC. Am I wrong?

Philip Smith said...

The FCC has jurisdiction and full "interpretation" unless case specific precident by Florida Supreme Court .

I've thoroughly researched law in most states ...

Law is pretty clear so not many states beside Illinois have have altered any meaning.

Also understand that the law is a national law ... The states that have altered it for their constituents are detailed above.

Anonymous said...

I live in a 1 party state and my minor kids live in a 2 party state (PA). Can I legally record the conversations that I have with my kids without their consent as they are minors?

Thanks !!

Philip Smith said...

Yes ... just send a letter as mentioned in the body of this article. Send it to the full time legal gaurdian.

Not to pry but what is the intention if your recording? Legality often is backed up with intent. If your intent has no purpose ... your recording could be ordered to cease and your ability to communicate by phone stripped by a judge if there is no reasonable explanation for your recording.

Anonymous said...

Philip,

What do you mean by full time legal guardian? Custody has not been established yet and as far as I know, I have shared legal custody with the EX at this time. The kids live with the EX.

The reason for the recordings is that every time I talk to the kids, my EX will then make up accusations and bring those accusations forward through her attorney. My EX is trying to paint me in such a bad light that I will not get any rights when custody comes up in court shortly.

Philip Smith said...

I would just write the letter to your "ex" ...

Remember, no other content should be placed in the letter OTHER than what us mentioned above.

Pennsylvania is the only state that makes an assertion of consent ... But consent vs notification has been challenged in Federal District Court ... The order stated that because the laws are clear state to state and that the other party has the choice to continue a call that the federal statute of notification must stand.

In Pennsylvania you have another "item of interest on your side" ... Harm to family. You could make the case you suspect harm to your family / family relationship / children's well being / etc.

I would (to cover your bases) tell your children that you are recording them as well ... Don't elaborate don't tell them why other than (if you must) for posterity.

Again, do not elaborate beyond notification ... use the "letter template above".

Anonymous said...

thank you for a very enlightening reading.I am a contractor. kitchen and bath remodels. I am in a situation where I am trying to separate from a customer I no longer wish to work for. He owes me money but is trying to coerce me into doing more work before he pays me. He is a violent man . He wants me to call him about the job. I think if the conversation does not go his way he will threaten me with bodily harm. I am in Alabama . can I record the conversation with him where I call him on my cell phone and if he does make threats will I be able to use that with the police. This man I believe is a dangerous man and has made comments like I don't want to kill anyone else and has tried to get me involved in illegal activities which I declined.

thank you for your time

FixYourThinking said...

Yes ... You may record without notification in Alabama.

You can also print out your post, this article, and my response to assist you with police reports.

You may want to add the following to your paper contract:

"All communications, telephone or on the job site, may be recorded for training AND contractual purposes."

Note the use of "contractual" ...

You may also wish to send a certified letter such as mentioned in the body of this article. This form of communicating is always looked upon very favorably by law enforcement and the courts.

Anonymous said...

I live in Texas. Recently I let an employee go, which he proceeded to provide HR with a recording from his personal cell phone recording application of someone telling a joke (somewhat racist) and claimed it to be me. What kind of leg does he have to stand on as well as myself should he try to pursue any kind of argument that he felt he was in a hostile environment even though it is not his race being referenced and there were never any reference other than the joke he has recorded.

Philip Smith said...

The employee had the right to record.

Why were they "let go"? ... And was this specific reason communicated to them in writing?

Have they brought up the issue of race before?

This employee will have to prove an established long term pattern ... And usually an attorney is expensive.

I wouldn't have any mire communication with them. Tell them you will be glad to speak with their attorney.

Anonymous said...

To answer your question regarding why the employee was terminated:
The employee in question was let go because of poor performance. We reviewed our processes with him prior to hiring him and discussed our expectations in which he stated he could perform the tasks with said tools. When he could not, nearing the end of his 3 months probation period we opted to release him rather than drag it out any further. We had a performance counceling, both verbal and written the 1st and 2nd month, and he never improved.

Philip Smith said...

Then I would document the calls, the threat of legal action, and that you visited here.

If you feel confident in a performance assesment then his claims if race will be argumentative and frivolous.

Tim said...

First off, amazing site and article. Great work! I read it a couple times but still have some questions, very sorry.

1) If I am in a two party state and call someone in a one party state can I record the conversation with just my consent?

2) If someone from a one party state calls me who is in a two party state can I record the conversation with just my consent?

3) Are emails and Private Messages(via a forum and such) legal to use in court without consent?

Thanks and great work!

Philip Smith said...

1) You must go by the laws in the state of the person called - they must sue you in their state

2) In a two party state you must notify them ... Period

3) yes that would be allowed in court

Anonymous said...

I live in Texas a one party state and I need to know if I can take legal action against someone who recorded my conversation to play back to someone else to cause harm?

Philip Smith said...

I live in Texas, a one party state ... I need to know if I can take legal action against someone who recorded my conversation to play back to someone else to cause harm?

First, they were allowed to record the call.

Second, if the recording was used to defame you and played out of context, then you MAY have a case.

You are seeking defamation not invasion of privacy - such as telephone recording is.

Anonymous said...

Hi Mr. Smith,

I have reasons to believe my cell phone conversations are being recorded. Since I have no other proofs than what I suspect, I verified my cell phone for bugs and other malicious software and it seems to be clean. However, I learned about recording mechanisms like RecordiaPro and also about someone recording the calls from inside the cell phone company. I know that it would take like a very special law enforcement order to ask the cell phone company to do that. But, the possibility that someone with the right system access records my calls is still there. So, it is there a way for me to verify if this is happening to my cell phone line either by someone inside the cell phone company or by using services like RecordiaPro without my agreement/knowledge?

By the way, I live in Montreal, QC. I am not sure, but I think the phone recording rules that applies in Ontario applies also in Quebec.

Thank you so much for your information.

Philip Smith said...

There is no way I know of to tell if you are being recorded and no way for the cellular carriers to know. The only thing I guess they could tell you is if the caller ID is being spoofed when you call or are being called.

Anonymous said...

Thanks for the content here. I may have missed this as previously asked, but I am dealing with a home utility (television satellite provider) that I have a sense is going to try and charge me when I cancel an account. I was hoping to confirm (and record) with them that I have no further obligation/commitment before I cancel. Therefore protecting me if they charge termination fees.

I am based in IL, and am not sure where their customer service office is (believed Colorado).

Two part question:

1. If when I call their Service Center they inform me of 'possible recording for training purposes...', would I still need to inform them of the recording.

2. If they have no such 'possible recording for training purposes...' message, should I ask where the Service Rep is located, or simply inform them of the recording at the beginning of the conversation?

Thanks in advance.

fixyourthinking said...

If you are recording for any legal purpose (such as contractual or breach of contract ) I would think it best to have as much evidence on your side as possible. If they call you - you must go by the laws in their state. Ask - it doesn't hurt - then inform them if necessary - if not necessary - you don't have to inform them. If you call them you MUST inform them of the recording because you are in a strict two party state with very confusing and circumstantial case law ... this is why it is best to always inform. Your key to your recording will be your demeanor, courteousness, and appearing to know your rights and the law. Don't argue with the customer service agent, don't threaten them, just get clarification and speak to the person in as high a position as possible. You may want to go to consumerist.com and get some corporate contact info on the company as well.

Anonymous said...

Is there any way to tell if someone is recording your home phone or cell phone, like some sort of device in your phone jack?

fixyourthinking said...

No there is no device to tell ... But you can ask and if they say no and are they cannot use the recording.

Anonymous said...

I live in minnesota which is a one party consent state. We are having major problems with a child protectection worker not returning calls and claiming she has not recieved our calls. I want to start recording these conversations and the messages we leave. My husband believes that we will not be able to use these in court even though we are a one party consent state. Will they be admissable in minnesota?

Thank you.

fixyourthinking said...

100% admissible / Use this reference (printed with all of the footnotes)

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