法律英语：50 The Legality of Recording Conversations

by Michael W. Flynn

Today’s topic is recording¹ 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 licensed² to practice in your jurisdiction³. Further, I do not intend to create an attorney-client relationship with any listener.

Recording Conversations
David wrote:
I am a concierge⁴ 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 recordings⁵ 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 entities⁶ such as the FBI or local police. When government officials act, they are constrained⁷ 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 intercepted⁸, disclosed, or intentionally⁹ used can file a civil lawsuit¹⁰. Many states have adopted the federal law, and some states provide greater protection.
Under most communication interception¹¹ statutes¹³, a two-step analysis is used to determine whether surveillance is legal. First, a court must examine the statute¹² 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.
In the first step, the most common issue is whether a conversation is private; most statutes only cover confidential¹⁴ or private communication. A general rule is that if the people engaged in the conversation can reasonably expect their conversation to remain private, then the statute protects that conversation. Courts normally consider telephone conversations to be private. Some exceptions include fellow members of a family listening by picking up an extension in the same house, and an employee using a work telephone to make a personal call.
Some in-person discussions are considered private, and some are not. For example, in one case, bugging¹⁵ a private house with a hidden microphone violated state law because the residents inside reasonably expected their conversations to remain private. By contrast, one court held that a private investigator¹⁶ who recorded a conversation while standing¹⁷ on a sidewalk outside a first-story apartment did not record any "private communication" because the conversation could be heard clearly from the public sidewalk through an open window. Another court held that a television station did not violate state law when it secretly recorded a conversation between an actor and a producer at an outdoor restaurant. The expectation of privacy analysis is very fact-specific.
Once a court determines that a conversation is private, and covered by the statute, then it will consider various exceptions. The most common, and most litigated, is consent. Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. Thirty-eight states and the District of Columbia have followed federal law and permit individuals to record conversations to which they are a party without informing the other parties that they are doing so. These laws are referred to as "one-party consent" statutes, and as long as you are a party to the conversation, it is legal for you to record it.
Consent of Parties
Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions¹⁸ are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Be aware that you will sometimes hear these referred to inaccurately¹⁹ as “two-party consent” laws. If there are more than two people involved in the conversation, all must consent to the taping. The more accurate term is "all-party consent."
The situation can get hairy when a person in a one-party consent state calls and records a conversation with a person in an all-party consent state, but does not get that person’s permission. There are several factors that go into which consent law applies. It is generally safer to assume that the stricter, all-party consent law will apply where either the caller or receiver is in an all-party state.
Often, notice will be considered sufficient to find consent. For example, when you call tech support for the laptop you just cannot figure out, the first thing you might hear is "this conversation may be recorded for quality assurance." Most courts hold that, if you speak after hearing this notice, you have given implied consent to the recording and cannot later maintain a civil suit.
There are a host of other exceptions based on legitimate²⁰ business recordings, crime-tort exceptions, and exceptions for telephone companies. Those will have to wait for another episode.
An Answer
Returning to David’s question, the answer is that "it depends." First, the court would determine whether the resident could reasonably expect the conversations to be private given that they occur in a quasi-public place: at the front desk of a condominium complex. If the conversations are not considered private, then David may record. If they are considered private, then the court would determine whether proper consent would defeat the claim. If David lives in a one-party consent jurisdiction, then only he would need to consent to the recording, but he would need the resident's consent or knowledge in an all-party consent state.
Overall, be very careful before you record conversations with people. To be safe, always get the express consent of all parties to the conversation, and check with an attorney licensed to practice in your jurisdiction to help you wade²¹ through these issues.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful²² Life. 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.
Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.

 

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 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

3 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

4 concierge   

n.管理员；门房

参考例句：

• This time the concierge was surprised to the point of bewilderment.这时候看门人惊奇到了困惑不解的地步。
• As I went into the dining-room the concierge brought me a police bulletin to fill out.我走进餐厅的时候，看门人拿来一张警察局发的表格要我填。

5 recordings   

n.记录( recording的名词复数 )；录音；录像；唱片

参考例句：

• a boxed set of original recordings 一套盒装原声录音带
• old jazz recordings reissued on CD 以激光唱片重新发行的老爵士乐

6 entities   

实体对像； 实体，独立存在体，实际存在物( entity的名词复数 )

参考例句：

• Our newspaper and our printing business form separate corporate entities. 我们的报纸和印刷业形成相对独立的企业实体。
• The North American continent is made up of three great structural entities. 北美大陆是由三个构造单元组成的。

7 constrained   

adj.束缚的,节制的

参考例句：

• The evidence was so compelling that he felt constrained to accept it. 证据是那样的令人折服，他觉得不得不接受。
• I feel constrained to write and ask for your forgiveness. 我不得不写信请你原谅。

8 intercepted   

拦截( intercept的过去式和过去分词 )； 截住； 截击； 拦阻

参考例句：

• Reporters intercepted him as he tried to leave the hotel. 他正要离开旅馆，记者们把他拦截住了。
• Reporters intercepted him as he tried to leave by the rear entrance. 他想从后门溜走，记者把他截住了。

9 intentionally   

ad.故意地，有意地

参考例句：

• I didn't say it intentionally. 我是无心说的。
• The local authority ruled that he had made himself intentionally homeless and was therefore not entitled to be rehoused. 当地政府裁定他是有意居无定所，因此没有资格再获得提供住房。

10 lawsuit   

n.诉讼，控诉

参考例句：

• They threatened him with a lawsuit.他们以诉讼威逼他。
• He was perpetually involving himself in this long lawsuit.他使自己无休止地卷入这场长时间的诉讼。

11 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。

12 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。

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 confidential   

adj.秘（机）密的，表示信任的，担任机密工作的

参考例句：

• He refused to allow his secretary to handle confidential letters.他不让秘书处理机密文件。
• We have a confidential exchange of views.我们推心置腹地交换意见。

15 bugging   

[法] 窃听

参考例句：

• Okay, then let's get the show on the road and I'll stop bugging you. 好，那么让我们开始动起来，我将不再惹你生气。 来自辞典例句
• Go fly a kite and stop bugging me. 走开，别烦我。 来自英汉 - 翻译样例 - 口语

16 investigator   

n.研究者，调查者，审查者

参考例句：

• He was a special investigator for the FBI.他是联邦调查局的特别调查员。
• The investigator was able to deduce the crime and find the criminal.调查者能够推出犯罪过程并锁定罪犯。

17 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。

18 jurisdictions   

司法权( jurisdiction的名词复数 )； 裁判权； 管辖区域； 管辖范围

参考例句：

• Butler entreated him to remember the act abolishing the heritable jurisdictions. 巴特勒提醒他注意废除世袭审判权的国会法令。
• James I personally adjudicated between the two jurisdictions. 詹姆士一世亲自裁定双方纠纷。

19 inaccurately   

不精密地，不准确地

参考例句：

• The money mechanism began to work stiffly and inaccurately. 贷币机构开始周转不灵和不准确了。
• Court records reveal every day how inaccurately "eyewitnesses'see. 法庭记录每天都显露出“见证人”看得多不准确。

20 legitimate   

adj.合法的，合理的，合乎逻辑的；v.使合法

参考例句：

• Sickness is a legitimate reason for asking for leave.生病是请假的一个正当的理由。
• That's a perfectly legitimate fear.怀有这种恐惧完全在情理之中。

21 wade   

v.跋涉，涉水；n.跋涉

参考例句：

• We had to wade through the river to the opposite bank.我们只好涉水过河到对岸。
• We cannot but wade across the river.我们只好趟水过去。

22 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。