法律英语：40 Is It Legal to Record a Conversation?

by Adam Freedman

Today’s topic: Recording¹ conversations.
Is It Legal to Record a Conversation?
Blaine from Viriginia asks whether it’s illegal to record a conversation with a “smartpen.” A smartpen, evidently, is a pen with a tiny digital recording device hidden inside--who knew? Blaine says that he goes to meetings where he takes notes with this pen, and well, why not switch on the recording device and make his life a little easier?
Blaine, the short answer is that you might be able to record a conversation with your smartpen, but only if you’re also wearing your Maxwell Smart shoephone. Actually, the answer is a little more complicated than that.
What is the “Wiretap Act”?
People ask me about recording conversations and telephone calls all the time. With technology advancing ever faster, there are more and more devices for intercepting³ our communications--yes, even smartpens.
The first thing you should know is that the federal government, all 50 states and the District of Columbia, have laws regulating the interception⁴ of communications. The federal law, often referred to as the “Wiretap Act,” prohibits people from intercepting certain communications, and allows any person whose conversation is illegally recorded to sue the offending party. The state laws are often carbon copies of the federal law, but some of them are even more strict.
Only “Private” Conversations are Protected
Under these laws, the first question you should always ask yourself is whether the conversation you’re thinking of recording is actually covered by the statute⁵. Generally speaking, the test is whether the parties to the conversation have a “reasonable expectation of privacy.” For example, if a person is standing⁶ on a busy corner, and yelling through a megaphone about how the world is coming to an end, he probably does not expect his words to be private, so he can hardly object if you whip out your smartpen and record some of his pearls of wisdom. On the other hand, when you sit down to have a glass of wine with your best friend, she might be surprised to discover that you’re wearing a wire.
What is a Reasonable Expectation of Privacy?
But it’s not always clear what is a “reasonable” expectation of privacy. In one Maryland case, an apartment dweller⁷ recorded his neighbor’s conversation, which he could hear right through the adjoining wall. An appeals court rejected the claim that this recording was unlawful, on the grounds that anybody who speaks loudly enough to be heard in the next apartment has no reasonable expectation of privacy. It just confirms what your mother probably told you long ago: remember to use your “inside voice” when you’re talking indoors.
This brings me to a question from another listener to this podcast, Jax from Washington State, who asks whether it would be lawful⁸ to record the local school bus driver, who he suspects is being verbally abusive to the children on the bus. In a case that went up to the Wisconsin Supreme⁹ Court last year, it was held that a school bus driver does not have a reasonable expectation of privacy while driving the bus. It appears that administrators¹⁰ in other states have reached similar conclusions, although I cannot find a Washington State decision exactly on point.
In any event, if a conversation is, or might be, considered “private” by a court, then the next question is whether there are any exceptions to the statutory prohibitions¹¹. For example, the law generally exempts¹² employees of communication service providers--like mobile phone networks--who are allowed to intercept² communications to the extent it’s necessary to their job.
Consent is Not Always Required
The most commonly-invoked exception is consent. Thirty-eight states and the District of Columbia have so-called “one-party consent” statutes¹³. That means individuals can record conversations to which they are a party without telling the other parties. In the other 12 states, you generally have to get the consent of all parties to a conversation in order to make a recording. Logically enough, these laws are known as “all-party consent” statutes.
In the case of telephone conversations, even if you live in a one-party state, be careful about recording conversations with people in other states. If the other person lives in an all-party consent state, a court might decide that you had to get his or her consent regardless of what your state law says.
Different Rules Apply to the Police
One final note: the laws I’ve been discussing apply to the actions of private individuals, not government officials. When the FBI, police, or other government officials intercept communications, a whole different set of legal considerations apply, including constitutional issues of due process.
Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. Before I go, I just want to mention that “Quick and Dirty Tips” founder¹⁴ Mignon Fogarty has a new book. In The Grammar Devotional, she offers 365 days worth of memory tricks, puzzles, and illustrations to help you learn and apply the trickiest¹⁵ grammar rules. Pick up a copy from your favorite bookstore on online bookseller and become a better writer – one day at a time.

You can send questions and comments to。。。。。or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

 

1 recording   

n.录音，记录

参考例句：

• How long will the recording of the song take?录下这首歌得花多少时间？
• I want to play you a recording of the rehearsal.我想给你放一下彩排的录像。

2 intercept   

vt.拦截，截住，截击

参考例句：

• His letter was intercepted by the Secret Service.他的信被特工处截获了。
• Gunmen intercepted him on his way to the airport.持枪歹徒在他去机场的路上截击了他。

3 intercepting   

截取（技术），截接

参考例句：

• The police had been intercepting my mail, ie reading it before it was delivered. 警方一直截查我的邮件。
• We've been intercepting radio transmissions from Moscow. 我们已从莫斯科拦截到无线电信号。

4 interception   

n.拦截；截击；截取；截住，截断；窃听

参考例句：

• Aerial photography can provide valuable information on precipitation, evapotraspiration, interception, and runoff. 航空摄影可提供有关降水量、蒸发蒸腾量、入渗和径流量的有价值的资料。
• Light interception and distribution in hedgerow orchards with different alleyway widths is indicated in Fig. 56. 图56显示篱壁果园不同行间宽度的光能截取和分配的情况。

5 statute   

n.成文法，法令，法规；章程，规则，条例

参考例句：

• Protection for the consumer is laid down by statute.保障消费者利益已在法令里作了规定。
• The next section will consider this environmental statute in detail.下一部分将详细论述环境法令的问题。

6 standing   

n.持续，地位；adj.永久的，不动的，直立的，不流动的

参考例句：

• After the earthquake only a few houses were left standing.地震过后只有几幢房屋还立着。
• They're standing out against any change in the law.他们坚决反对对法律做任何修改。

7 dweller   

n.居住者，住客

参考例句：

• Both city and town dweller should pay tax.城镇居民都需要纳税。
• The city dweller never experiences anxieties of this sort.城市居民从未经历过这种担忧。

8 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。

9 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

10 administrators   

n.管理者( administrator的名词复数 )；有管理（或行政）才能的人；（由遗嘱检验法庭指定的）遗产管理人；奉派暂管主教教区的牧师

参考例句：

• He had administrators under him but took the crucial decisions himself. 他手下有管理人员，但重要的决策仍由他自己来做。 来自辞典例句
• Administrators have their own methods of social intercourse. 办行政的人有他们的社交方式。 来自汉英文学 - 围城

11 prohibitions   

禁令，禁律( prohibition的名词复数 )； 禁酒； 禁例

参考例句：

• Nowadays NO PARKING is the most ubiquitous of prohibitions. 今天，“NO PARKING”（禁止停车），几乎成了到处可见的禁止用语了。
• Inappropriate, excessive or capricious administration of aversive stimulation has led to scandals, lawsuits and prohibitions. 不恰当的、过度的或随意滥用厌恶性刺激会引起人们的反感、控告与抵制。

12 exempts   

使免除[豁免]( exempt的第三人称单数 )

参考例句：

• This privilege, however, exempts only predecisional documents. 然而，此特权只免除那些文件在作出决定之前的披露责任。
• Function effectiveness: After then special-purpose, exempts the flushing formula. 功能效用：便后专用，免冲洗配方。

13 statutes   

成文法( statute的名词复数 )； 法令； 法规； 章程

参考例句：

• The numerous existing statutes are complicated and poorly coordinated. 目前繁多的法令既十分复杂又缺乏快调。 来自英汉非文学 - 环境法 - 环境法
• Each agency is also restricted by the particular statutes governing its activities. 各个机构的行为也受具体法令限制。 来自英汉非文学 - 环境法 - 环境法

14 Founder   

n.创始者，缔造者

参考例句：

• He was extolled as the founder of their Florentine school.他被称颂为佛罗伦萨画派的鼻祖。
• According to the old tradition,Romulus was the founder of Rome.按照古老的传说，罗穆卢斯是古罗马的建国者。

15 trickiest   

adj.狡猾的( tricky的最高级 )；（形势、工作等）复杂的；机警的；微妙的

参考例句：

• Many believe this is the trickiest area to navigate. 很多人认为这是最难驾驭的领域。 来自时文部分
• Establishing confidence in a new monetary system was the trickiest part. 建立对新货币体系的信心是其最棘手的部分。 来自互联网