Under federal and state laws, it is considered a crime to record a conversation without the consent of everyone involved in said conversation. If violated, these laws could result in both criminal and civil penalties.

The Wiretap Act is a federal law that applies to oral, over-the-phone, and electronic communications. The Act may be violated if one person secretly records a conversation in which the communicators had a reasonable expectation of privacy. Violations of the Wiretap Act could result in a penalty of up to five years spent in a federal prison facility, a $500 fine, or both.

In addition to the Wiretap Act, each state maintains its own criminal penalties for secret recordings. An example of this would be how in California, a violator may spend up to one year in prison and pay a fine of up to $2,500.

Is It a Crime to Secretly Record a Spouse’s Conversation?

Once again, it is generally considered to be a crime to record another person’s phone conversations without that person’s consent. Some states require the consent of all parties involved, while other states have determined that only one party needs to give consent. In any case, information obtained from an illegal recording will not be admissible in court. However, if the recording is made in accordance with the law, it may then be admissible in court.

If the conversation is between a spouse and a third party, it is very unlikely that any recording of this conversation will be legal. This is due to the fact that it is unlikely that either party, let alone both parties, have consented to have the conversation recorded. According to federal law, and the majority of states, there is no legal exception to these laws when one spouse is recording the other.

Are There Any Exceptions to Federal Law? What Are Some Examples of Such Exceptions?

According to federal laws, it may be legal to secretly record a conversation under especially limited circumstances. The primary exception is that a person can record a conversation when consent is provided, as discussed at length previously. One of the persons involved must give their consent to be recorded; meaning, if the person who is recording is also taking part in the conversation, then consent may be established. 

Again, many states require consent from all parties involved in the conversation in order for the recording of the conversation to be legal. Some examples which show how situations, facts, and applicable laws interact could include:

• One spouse bragging at a party about hiding some jointly held property before their divorce proceedings. As this communication is made in public, it is not considered to be confidential and therefore it would not violate any privacy laws to record the conversation without their consent;
• A robber tells one of their close friends about their plan to rob a bank while honestly thinking that this communication is private. This would be an exception due to the fact that it is not reasonable to assume that this communication will remain private, as the person is disclosing information regarding a crime. As such, it is not confidential; and
• In private and without any third parties present, a person suffering from addiction tells about their drug problem to a friend. Here, it is reasonable to expect this communication to be private and any recording without consent would be considered illegal.

What Else Should I Know About Recording Conversations?

There are some exceptions to recording without consent when a person is recording police officers or other public officials. This is because a person will most likely have a constitutional right to openly record the activities of police and other officials in public in the interest of public safety and full transparency. However, a person cannot interfere with those activities or violate any other generally applicable laws.

Another exception to The Wiretap Act is The Provider Exception. Telephone and mobile phone service providers are allowed to listen in, as well as monitor phone calls, so long as they have a valid court order in which to do so. Providers may also do so when they need to provide a customer with service, or inspect the equipment they have provided to the customer. Finally, providers are allowed to wiretap when they need to protect their rights or property. An example of this would be if someone is using their network without paying for the service.

Do I Need an Attorney for Recording a Spouse’s Conversation?

If you are being accused of recording your spouse’s conversation without their consent, it would be in your best interest to consult with a skilled and knowledgeable divorce lawyers. A local attorney will be most knowledgeable in terms of what your state laws have to say in terms of recording conversations. 

The attorney will be able to determine whether any defenses could apply to your case, such as if you assumed the other party was aware of the fact that they were being recorded. Your criminal defense attorney will protect your rights and represent you in court as needed.