Investigation and Security Blog

List of Audio Surveillance Laws by State

List of Audio Surveillance Laws by State

Why was Linda Tripp indicted for recording Monica Lewinski's confession of her affair with Bill Clinton which caused his impeachment? Because she did not have both party consent to the recording and the call was made in Maryland. Had she been in Virginia or DC, perhaps the recording would have been admissible. If recordings are being done in the workplace, clear signs need to be posted clearly stating that a recording is taking place either in the office, store, building, bus or car. This explains why most evidence presented in a courtroom today is in the form of picture or video and not audio.

Federal Laws and Definitions

Under federal laws, wiretapping, U.S. Code ยง 2510 et. seq. sets apply whenever anyone records any conversation, whether it is oral, electronic or over a "wire" where the connection allows two or more speakers to communicate between a point of origin and point of reception deeming it illegal to record, use or disclose information through the use of an illegal wiretap or recording device. Anyone found guilty of wiretapping faces criminal punishments of up to five years in prison and a $250,000 fine for each violation. Civil penalties also apply, including paying for the opposing party's attorney's fees and potential punitive damages. Unless law enforcement acquires a court order to record evidence of suspects gathering in 30 day increments, would it be legal. Likewise outside of law enforcement, if only one party approves of a recording, in many states, it would be lawful and admissible in court evidence.

One Party Consent - State Audio Surveillance Laws

There are 38 (thirty-eight) states and the District of Columbia which have a statute making it lawful to allow recordings only if one party consent, meaning an individual can record conversations, but does not require the other party to know about it. Each state has varying wording see mwl-law.com or upcounsel.com:

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

Two Party Consent - State Audio Surveillance Laws

There are 12 (twelve) states in the US which have laws where recordings must have a two party consent every member of the conversation understanding. Thereby, any audio recording would not be admissible in court unless a court order was issued ahead of time. These states are:

  • Michigan
  • California
  • Connecticut
  • Florida
  • Illinois
  • Massachusetts
  • Maryland
  • Montana
  • New Hampshire
  • Pennsylvania
  • Nevada
  • Washington

Conclusion

Thirty-eight (38) states allow one person consent to record while twelve (12) states stipulate two person consent. It is confusing because the federal law does not permit covert audio recordings in public areas, workplaces and stores. Loopholes exist simply by posting a sign, both the video and the audio recording can be more readily and legally acceptable. For businesses in general, it would be prudent to simply inform employees of ongoing recordings that are taking place when either hiring or included within the detail of an employees' handbook, if not, a signed employee contract will suffice. On the flip side, customers are notified of recordings in most retail stores simply by posting signs should the need arise to use the video/audio recording for training and/or criminal purposes.

Would a recording be admissible in a one party consent recording scenario, if the primary person leaves the room momentarily while it continues to record?

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