You know the state and federal government has to have a warrant to tap your phone. You know the government needs a warrant to search your property. What about you recording or taping a police officer during a stop or arrest? Do you need a warrant, no; but you may need their consent if it is a conversation but no warrant or consent if you are videoing the stop or arrest without capturing the audio of the event.
Taping or recording conversations or phone calls are covered by both state and federal laws. Violating these laws can result in either a civil lawsuit against you for money or even criminal prosecution or both.
The question is whether you need consent, to tape or record the conversation, of just one person or all persons recorded. The federal laws and many state laws permit you to record the conversation if you have one person recorded that consents (that one person could be you). The other states require all persons recorded to consent.
Consent can be acquired either by written permission or notice to the people on the conversation that you are recording the call, or even putting the recorder on the table and tell them you are recording. Should they fail to object, then they have waived their objection to the recording. However it is always better to get each of them to agree to the recording, which you can do in the recording. Something as simple as, “I am recording this conversation. So Officer Tom…”
If you ask an officer during a stop if you can record him, he may or may not give you permission. Should he tell you to stop recording, then by all means stop because failure to do so will most likely result in additional violations added to your stop or even your arrest for violating the stateís recording laws.
So what states require that you get permission from all parties involved before you can record? The states that currently require consent of all parties include CA, CT, FL, IL, MD, MA, MI, MN, NV,NH, PA, and WA. Caution: before you start recording conversations you should check the current status of consent for recording in the state where you will make the recording as laws do change and usually most people are not aware of the changes. A good place to start is with that stateís Public Service Commission and you can locate your states commission at www.naruc.org, the National Association of Regulatory Utility commissioners.
Something else you should consider is if you are recording a phone call is the recording laws of each state. For example your call from Oklahoma to Illinois would require you to get everyone’s consent. But your call from Oklahoma to Texas will allow you to record the call as long as you are part of the conversation. So before you record phone conversations you need to know where the person on the other end is standing, in a one person consent or an all consent state. Now that people can keep their old phone numbers as they move about the country it becomes very confusing and dangerous to rely on the area code of the call you are making because they may be standing in an all consent state and those law would govern your recording.
You cannot legally record a phone call or private conversation if you are not involved in the call or conversation. That would be just like placing a “bug” or microphone to overhear conversations. You might be able to record a call or conversation you could naturally overhear as the people in the conversation would not have an expectation of privacy if strangers can easily overhear them. An example would be a couple arguing in a restaurant when their loud voices carry to other tables.
Recording calls and conversations is all about expectation of privacy. In the New Jersey Hornberger v. ABC, Inc. case the Appeals Court ruled that police officers who were secretly videotaped while searching a car did not have a claim under New Jersey’s wiretapping law because the officers had no reasonable expectation of privacy in a conversation that occurred in a car on the shoulder of a busy highway. Also that police officers have a diminished expectation of privacy because they hold a position of trust.
With the advent of cell phone cameras and recording applications the states requiring everyone consent can lead to arrests if the police officers believe the recording is being done in secret. Massachusetts, an every party consent state, recording law makes any secretive recording unlawful. Now think of how many cell phones you see sitting on a table while people are eating and ask yourself, “is anyone recording our conversation?” In Massachusetts you must give consent to be recorded.
Illinois is also an every party consent state and its laws ban any taping without the consent of all parties, regardless of whether the parties have an expectation of privacy. The law in Illinois is considered the broadest in the land and arrest could be more common there than other states.