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The Legality of Recording Conversations

This episode deals with the legality of recordings made by private citizens who are not working in cahoots with the government.

By
Michael W. Flynn
August 18, 2012

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Today’s topic is recording conversations.

But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

Recording Conversations

Legal Lad fan David wrote:

"I am a concierge at a condominium. On occasion, a certain resident of the condominium has made false claims that I was rude to them in our interactions at the front desk. I would like to make secret audio recordings of our future conversations, so that if the resident makes false claims in the future, I can provide proof against the claim to the management. Is this legal?"

Thanks David. Other listeners have written questions regarding the legality of recording telephone conversations as well. The answer to this question, and the answer to so many legal questions, is "it depends." This area of the law is not completely settled, and changes as our technology and notions of privacy change.

First, please note that this episode does not cover recordings made by government entities such as the FBI or local police. When government officials act, they are constrained by the Constitution and other laws. This episode only deals with the legality of recordings made by private citizens who are not working in cahoots with the government.

Is the Surveillance Legal?

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. §§ 2510-2520) generally provides that any person whose communication is intercepted, disclosed, or intentionally used can file a civil lawsuit. Many states have adopted the federal law, and some states provide greater protection.

Under most communication interception statutes, a two-step analysis is used to determine whether surveillance is legal. First, a court must examine the statute to determine whether the communication at issue falls within the scope of the statute. If so, the court then examines whether an exception might apply. 

A two-step analysis is used to determine whether surveillance is legal. First, a court must examine the statute to determine whether the communication at issue falls within the scope of the statute. If so, the court then examines whether an exception might apply.

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