Recording Phone Calls
State and federal laws must be followed when recording phone calls. If the caller and the called party are in the same state, that state’s laws apply. If the caller and the called party are in the different states, an interstate call, the laws of both states, and federal law, applies. All applicable laws must be followed when recording phone calls.
One-party consent laws are used in 38 states and Washington, DC. With one-party consent, if either party on the call is aware that the phone call is being recorded, the recording is allowed.
Two-party consent laws are used in 12 states. With two-party consent, both (or all) parties on the call must be aware that the call is being recorded. Two-party consent states are:
10. New Hampshire
Invasion of Privacy
Colorado CRS 18-9-303(1)
Recording or overhearing a telephone conversation, or any electronic communication, without the consent of a party to the conversation is a felony punishable by a fine of between $1,000 and $100,000 and one year to 18 months in jail.
For recording phone calls, you may wish to get written consent or record the spoken consent, date, time and location at the beginning of the recorded conversation.
Eavesdropping and Wiretapping
Eavesdropping by a third party occurs when no party engaged in the phone call is aware that the call is being recorded.
Colorado CRS 18-9-304
Using or disclosing information obtained through illegal wiretapping is prohibited if there is reason to know the information was obtained illegally. Anyone who is not “visibly present” during a conversation who overhears or records the conversation without the consent of at least one of the parties commits a felony carrying the same punishment as a telephone interception, as does anyone who discloses the contents of such a conversation.
The federal statute (US Code) covers the interception and disclosure of wire communications. 18 USC 2511(2)(d), it is lawful to intercept a communication if one is a party to the communication or has received the prior consent of a party to the communication.
The purpose of phone call may not be for committing any criminal or tortuous act in violation of the Constitution or laws of the United States or of any state.
The federal statute serves as the basis for many of the state laws. It requires one-party consent.
Note: Indian Reservations and Military Bases fall under the federal one-party rule even if they are located within a two-party consent state.
Case law in some states has ruled, that even though the state law may require consent of both (all) parties before recording phone calls, only the consent of one party may be needed.
Recording phone calls may be a useful method for preserving evidence or verifying the details of a conversation or business transaction. Audio files of phone calls containing private or confidential information should be kept secure.
Disclaimer: This article is not to be used or considered as legal advice. For legal advice, contact a licensed, competent attorney.