Smartphones make it incredibly easy to record conversations. However, both federal and state laws restrict the ability to record private conversations. If violated, these laws may 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 law may be violated if you secretly record a conversation where the communicators had a reasonable expectation of privacy.
Violating the Wiretap Act may result in up to five years in prison, a $500 fine, or both.
In addition to the Wiretap Act, each state prescribes its own criminal penalties for secret recordings. For example, in California, you may spend one year in prison and pay a $2,500 fine.
Under federal laws, a secret recording may be made when limited exceptions apply. The primary exception is that you can record a conversation when consent is provided. One of the persons involved needs give consent. Therefore, if the person who makes the recording is also taking part in the conversation, then consent may be established. However, many states, including California, require consent from all parties.
Basically, in order to be protected by federal or/and state laws, the person recorded has to have a reasonable belief that his communication is private and will remain confidential.
Here are a couple of scenarios that show how situations, facts, and applicable laws interact:
- A husband brags at a party about hiding some jointly held property before his divorce proceedings. (This communication is made in public, so is not confidential.)
- A robber tells his close friends about his plan to rob a bank, honestly thinking that his communication is private. (It is not reasonable to assume that this communication will remain private, so this is not confidential.)
- In private and without any third parties, a person suffering from addiction tells about his drug problem to a friend. (Here, it is reasonable to expect this communication to be private.)
If you have questions about recording conversation on an iPhone, voice-recorder, or other device, you may need advice from a qualified criminal defense attorney. An attorney can assess whether state or federal laws apply to your situation. If you have been charged with illegally recording another person’s private conversation, an attorney can defend your case.