LEGAL MATTERS: Can You Tape Record a Phone Call?
Wednesday, August 14, 2013
If you are not a party to phone conversation, it is illegal to surreptitiously record it. This applies even to your spouse’s conversations and calls on your personal mobile and home phones. If you recorded someone else’s conversations hoping to use them in, perhaps, your divorce, do not tell anyone and talk to your divorce attorney right away. They will probably tell you trying to use them will expose you to criminal prosecution.
A Rhode Island businessperson thought the 'no eavesdropping' rule did not apply if he wanted to record conversations his employees made on his business lines. He was wrong and paid dearly for it when they sued him.
Rhode Island: 1-Party Consent
Rhode Island law allows one party to a telephone conversation to record it without telling the other party. New York, Maine, Vermont and most states outside of New England are also 1-Party Consent states like Rhode Island.
Massachusetts: 2-Party Consent
The law in Massachusetts is neither party to a telephone conversation can record it unless both parties agree to the recording. New Hampshire and Connecticut have similar 2-Party Consent laws.
What law applies to calls placed across state lines is an open question that has not been litigated in Rhode Island or Massachusetts. In other states, the issue has been decided both ways: one court decision says the law of the state called from applies, another decision says the law of the state called into applies.
Mobile phone conversations
What if you are calling someone with a 401 area code who has, unbeknownst to you, moved with their mobile phone to Massachusetts? That issue has not been litigated either. But many crimes require intent so, if you honestly believed the person was in Rhode Island, I do not think Massachusetts would criminally prosecute you.
For my clients who are physically in Massachusetts, I recommend they not record any of their telephone conversations without telling the other party. For my clients who are physically in Rhode Island, and answering a phone with a 401 area code, I tell them it is probably OK to record the call without telling the other party but, unless the other party is also in Rhode Island, I cannot guarantee that.
How to Record
If you want to record calls to your mobile phone, you can download a free Android app like Automatic Call Recorder or an Apple app like TapeACall Lite. If you want to record calls to your home phone, I recommend you use an Olympus TP-8 microphone connected to any microcassette recorder. You can get a recorder at any office supply store – just be sure to pay the extra $10 for a model with a mic-in jack.
To learn more about recording conversations or the laws in your state, check out the resources assembled by the Reporters Committee for Freedom of the Press.
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