Is it Legal To Record Telephone Calls?

posted by James Diamond December 27, 2014
It’s tempting.

Say you have a suspicion that your spouse is hiding something from you, your roommate is stealing or an employee is disclosing confidential company information to a competitor.  Can you set up a system to record their phone calls?  As an attorney practicing criminal law I often get calls from clients and other lawyers asking if it is legal in Connecticut to record phone calls.  The answer is: sometimes.

In Connecticut a person is guilty of the crime of Eavesdropping when they illegally record a telephone call, a class D Felony.  That makes it a rather serious crime, punishable by a maximum of five years in prison.  So, when is taping a crime?  Under state law, it is illegal to record telephone calls without the permission of at least one of the people making or receiving the call. So, it is not illegal under CT law to record a call if the person making the recording is a party to the call.  Simple?  Hardly.  There are many other factors to consider.  Although it may not be a state crime, whenever recording any telephone call, the person making the call must either record a warning that the call is being taped, or, have an automatic beep every 15 seconds.  If the recorder does not take those precautions when recording calls, they are subject to civil liability — a possible civil lawsuit.

Now it’s simple?  Not yet.  One of the most complicated aspects of figuring out whether taping is legal is figuring out what law governs the taping.  People call each other and receive calls from all over the country and with cell phones it’s often difficult to know the physical location of either the caller or the person on the receiving end.   They may even move from one state to another during the duration of one recorded call.  These facts affect the determination of which state’s law applies and laws vary from state to state.  If both parties to a call are located in Connecticut, it is probably the CT Eavesdropping law discussed above that applies.  There is another sticking point here.  Under Federal law, a person is also committing a Federal crime when he records a call if he does not have the permission of one of the parties to the call.  This federal crime has the same five year maximum prison term that the state law has — scary stuff.

So, to be clear, it is illegal to set up a device that automatically records calls of two other people.

What about recording face to face conversations?  Recording or electronically listening to conversations of other people is also illegal Eavesdropping.   A device will typically be illegal if it is set up to record automatically whenever somebody enters a room and starts speaking, since it is likely to record conversations of people who have not given their consent.

Videotaping or photography:  It is illegal in Connecticut to videotape or take still photographs of another person without their knowledge and permission, whenever the subject of the filming has a “reasonable” belief that they have a right to be private — not photographed — in that location.  People have different opinions about what should be private, but places like bathrooms, showers and fitting rooms are private places where video or still photography is not allowed.  When filming in other public places, videotaping or photography is usually legal.  This law differs from the CT Eavesdropping law in that a person cannot legally videotape or photograph another person even if he is in the picture or recording himself.

All of these rules are different for police who have obtained a legal “wiretap” permit or a search warrant from a judge that allows them to listen to or tape conversations.  If you ever receive a letter informing you that your calls have been monitored, recorded or “intercepted” by state, local or federal law enforcement it very important to contact an attorney immediately.

One final note: any recording that is illegally made will not be allowed into evidence in court, regardless of how important the evidence may be.

If you have any question about whether the taping of a call or a conversation is legal, always consult an attorney.

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