Written by: Richard Parker
Once upon a time, it took a bit of legwork and investment if you wanted to tape record someone speaking. Even as recently as 10 years ago, the effort to record audio required, at a minimum, a pocket-sized dedicated digital recording device, a piece of tech few people owned.
These days, however, we all have audio recorders in our pockets by virtue of owning smartphones. Anyone anywhere now has the ability to record the audio around them – including conversations – with just the tap of a screen. This presents a very easy opportunity for folks to clandestinely record any talking going on in the immediate vicinity of the device.
Difference Between One and Two-Party Consent
Most states and countries allow for conversations and other audio to be recorded without the consent of everyone involved so long as one person knows. In other words, you can’t secretly tape conversations unless you’re taking part in them, either in person or on the phone. For example, an attorney in a one-party consent state can theoretically tape an interview he has with a detective without telling him, and even go so far as to use third-party transcription services for lawyers to further document the conversation. The audio and transcript can then be used as evidence in court.
However, in 12 states in the U.S. and in many other countries around the world, the above situation would be illegal. Known as two-party consent jurisdictions, those wishing to make an audio recording of a conversation must inform those taking part that they will be taped. If someone objects, the person wishing to record is not allowed to go forward with the recording.
To find out whether you live in a one-party or two-party consent state, check the list of recording laws and regulations by state or country. Just make sure to read the specifics, as the details of each jurisdiction’s version of the law vary a little.
Why the Different Rules?
Laws regarding the recording of conversations with or without the consent of all participants are an attempt to balance two conflicting tenets of democracy: the right to be informed and the right to privacy. States and countries want the ability to obtain information relevant to the public interest, which may sometimes require recording someone without their knowledge, but they also want to protect the privacy of their citizens. Whether or not a jurisdiction is one-party or two-party is a question of which of these two things they chose to prioritize.
The important thing to remember when it comes to the topic of recording audio is to abide by the law. In an attempt to catch someone in the act of malfeasance or otherwise doing something wrong, the last thing you want to do is end up being the one in trouble. Look up the laws before deciding to start taping people with their knowledge, and always ask for consent in those jurisdictions where it is required.
DISCLOSURE: If you plan to record telephone calls or in-person conversations (including by recording video that captures sound), you should be aware that there are federal and state wiretapping laws that may limit your ability to do so. These laws not only expose you to the risk of criminal prosecution, but also potentially give an injured party a civil claim for money damages against you.
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