| [STATE BY STATE LIST] [STATE
LAW FOOTNOTES] [THE FEDERAL LAW ] [EXTENSIVE REMARKS] |
This is a list of states concerning the status on one party/ two party
telephone tape recording law with footnotes, federal law coverage and extensive
remarks.
Definations:
A one party state means one party to the telephone conversation has to have
knowledge and give consent. In a two party state, all parties must have
knowledge and give consent.
Addresses:
The e mail address after each state is the address of the person who provided
that information. It has not been checked. If more than one e mail address
is listed, two people reported the same information.
8. GEORGA <bobg@mindspring.com (Bob Griggs)>
BTW, I was assigned (as a local law enforcement officer) to a joint federal/state/local
DEA drug task force. When we knew we would be prosecuting a case under state
law (Georgia), Georgia laws regarding eavesdropping applied, no matter where
we called, because the call originated in, and the case would be prosecuted
in, a one-party state.Just a thought (of which I've had several....)
Bob GSES Investigations, Inc.
9. CONNECTICUT
Connecticut joined the ranks of two party consent about 3 years ago. The
State Police here is quite diligent in enforcing the law. Ironic, since
they were the ones responsible for the law going inti effect by illegaly
recording the telephone calls of prisoners at the individual barrack when
arrested. <Steve Fredericksen, Sterling Detective Agency, Milford, Ct
06460>
10. MARYLAND <73141.2400@CompuServe.COM>
(Warren Levicoff)
Maryland is a two-party-consent state. Md. Cts. & Jud. Proc.Code Ann.
Sec. 10-402 (1980).
11. MASSACHUETTS <73141.2400@CompuServe.COM>
(Warren Levicoff)
Massachusetts requires consent of al parties unless another exception applies.
Mass. Gen. Laws Ann. ch. 272, Sec. 99. Telephone equipment which is furnished
to a phone company subscriber and used in the ordinary course of business
is excluded from the definition of unlawful interception devices. Id. at
99(B)(3). Office intercommunication systems used in the ordinary course
of business are similarly exempt. Id. at 99(D)(1)(b). The criminal penalty
is a fine of up to $10,000, imprisonment for up to five years, or both.
In civil litigation, an injured party may recover actual and punitive damages
as well as costs and fees. It is a separate violation to divulge or use
the information garnered through unlawful interception and an additional
penalty of up to two years in prison or $5,000 may be imposed on this count.
12. MONTANA <73141.2400@CompuServe.COM>
(Warren Levicoff)
Montana is a two-party consent state. Mont. Rev. Codes Secs. 94-8-114
(1973).
13. NEW HAMPSHIRE <73141.2400@CompuServe.COM>
(Warren Levicoff)
New Hampshire requires the consent of all parties. N.H. Rev. Stat. Ann.
Secs. 570 A:2 (Replacement 1974).
14. OREGON <73141.2400@CompuServe.COM>
(Warren Levicoff)
Oregon requires the consent of all parties. Or. Rev. Stat. Secs. 165.540
(Replacement 1979).
15. PENNSYLVANIA <73141.2400@CompuServe.COM> (Warren Levicoff)
Pennsylvania requires the consent of all parties. 18 Pa. Cons. Stat. Ann.
Sec. 5704(4), but surreptitious use of extensions for these purposes constitutes
interception within the wiretapping statute. Felony penalties may be imposed
for violation of the Pennsylvania statute.
THE FEDERAL LAW
READ THE FEDERAL LAW
Title 18, Part 1, Chapter 119 USC, entitled Wire and Electronic
Commuications Interceptions found at the following web sites
CORNELL UNIVERSITY
http://www.law.cornell/edu
SEAMLESS WEB PAGES
http://www.Seamless.com/rcl/privacy.html
The federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
Sec. 2510 et seq., prohibits the willful interception of telephone communication
by means of any electronic, mechanical, or other device without an applicable
exemption. There are two principal exceptions:
Federal Exceptions
Consent: In the absence of more restrictive state law, it is permissible
to intercept and record a telephone conversation if one or both of the parties
to the call consents. Consent means authorization by only one participant
in the call; single-party consent is provided for by specific statutory
exemption under federal law. 18 U.S.C. Sec. 2511(2)(d).
"Business telephone" exception
The "business telephone" exception, which generally allows monitoring
of
calls and taping over an extension phone which is both provided to a subscriber
in the ordinary course of a telephone company's business and is being used
by that subscriber in the ordinary course of its business. This provision
generally permits businesses to monitor the conversations of their employees,
including personal conversations.
Penalties: The federal statutes provide criminal penalties for unlawful
interception of telephone conversations, including up to five years' imprisonment
or a maximum of $10,000 in fines. They also allow for civil remedies, by
which private parties are entitled to recover actual and punitive damages,
together with fees and costs.
RECORDING AND LAWYERS: <73141.2400@CompuServe.COM>
(Warren Levicoff)
Under ABA Formal Opinion 337 (August 10, 1974), and certain state and local
opinions, it may be unethical for an attorney to make an undisclosed recording
of other persons.
RECORDING AND FGCC RULES <73141.2400@CompuServe.COM>
(Warren Levicoff)
The FCC Regulations require telephone carriers to file tariffs with the
Commission to the effect that: (1) adequate notice be given to all parties
that their conversation is being recorded; (2) that such notice be given
by the use of an automatic tone warning device; and (3) that the tone warning
device be furnished, installed and maintained by the telephone company along
specified technical guidelines. 11 FCC 1033, 1050, 12 FCC 1005, 1008 (1947).
These regulations are directed toward the telephone carriers, and do not
make recording a criminal offense. However, a person who fails to use the
"beep" tone as required may have his telephone service terminated.
EVIDENTIARY ISSUES <73141.2400@CompuServe.COM> (Warren Levicoff) Individuals
and businesses that make surreptitious recordings often do so
with the expectation that the recordings will be useful as evidence. Such
recordings are subject to significant barriers to use as evidence. First,
if
made in violation of either federal or state law, the recordings will almost
certainly be inadmissi- ble. Second, even if lawfully recorded, the tapes
will be exempt from the hearsay rule and will not, in most jurisdictions,
be usable for impeachment. Anyone contemplating an evidentiary use of surreptitious
recordings should consult with an attorney prior to making the recording.
EXTENSIVE REMARKS
REMARKS OREGON
In Oregon there has been case law regarding calling into a 2 party consent
state. Basically if you are working on a case that is being tried in Oregon
and you called into a state with two party consent since the case is being
tried in Oregon (1 party state)the jurisdictional state prevails and the
tape is admitted into evidence.
Phil: Agrue & Associates Investigations Inc.,2061 NW Hoyt St. * Suite
K * Portland OR 97209,Voice * 503-246-7561 * Fax * 503-228-2915
Home Page:http://www.investigations.com/~pagrue
GRA Associates, Inc. wrote:
<wingate@worcnet.gen.oh.us> (Jim Wingate)
An open question to the list:
I have yet to get a definitive answer on the question that follows. If you
have experience or ideas towards its resolution, please post a response:
With regards to recording convsersations: If I am calling (interstate, long
distance) from a 1-party state (e.g., Texas) to a 2-party state (e.g.,
California), is it legal to record the conversation? Would this entail ICCor
FCC regulations?As I have heard from a few other PIs; ask a different attorney,
get a different answer.
Bud Andrews. Action Valley Investigations, CA PI#18429
Serving the information needs of Southern California
Vox: 805-735-5990, 800-201-9088, Fax: 805-733-4094
To All,
In April 1992 I wrote a letter to the FBI office in Cleveland, Ohio and
asked them specifically what the federal laws were regarding recordings.
The Principal Legal Advisor responded by referring me to the U.S. Code sections
2510-2521 of Title 18, specifically section 2511 (2) (d). (I have not checked
to see if the law has been changed since 1992). Section 2511 (2) (d) states
as follows, "It shall not be unlawful under this chapter for a person
not acting under color of law to intercept a wire, oral, or electronic communication
where such a person is a party to the communications or where one of the
parties to the communication has given prior consent to such interception
unless such communication is intercepted for the purpose of committing any
criminal or tortious act in violation of the Constitution or laws of the
United States or of any State". If I were calling from a one party
state to a two party state I would think that the law would apply where
the phone call originated from, that being the one party state. I have not
researched this yet. Just putting my 2 cents in.
<RRodabaugh@aol.com>
Regarding your question of dominating state law, it doesn't matter where
the call is placed. From or to two party consent is still two party consent.
This comes from a source in the FBI. Additionally, it then becomes a federal
crime. Same exceptions as the PA law regarding recordings I sent you earlier.
Matt Forman
NIS Investigative Services
Shawn Goudge, BA(Hons) Law Paralegal Services in: GOUDGE LEGAL CONSULTING
-Summary Offences,PO Box 26123, 72 Robertson Rd -Small Claims Nepean, Ontario,
Canada -Landlord Tenant Relations K2H 9R6 -Regulatory Law, Ph (613) 786-6384
-Immigration Law
E-Mail: sgoudge@cyberus.ca -Process Serving
Dear Stephanie, Mr. Thomas, and others:
That is a very interesting question, one that I hope ALL P.I.'s will give
a whole lot of thought to before attempting to test their respective laws.
Recording (or wiretapping) is an area that we all have to be very concerned
about, as breaking the law can wind one in prison real fast, as well as
having his/her license revoked if the infraction occurs in their respective
home state, not to mention the aggravation of ourselves being the defendant,
instead of the witness, in court.
I am not an attorney; however, I am going to "take the plunge"
and address this matter head on, as I THINK I know the answer to your question
and I'm afraid my fellow investigator friends need to be extremely careful
with this matter.
My understanding regarding interstate vs. intrastate laws is the same as
yours mentioned below. In all cases that I am familiar with, the stricter
law ALWAYS applies, that being a stricter state statute takes prescedence
over a more lax federal law. The feds may not prosecute you, but your state
will, so what's the difference? Either way, you still land up in jail and
have your license revoked! In addition, if you are making a recording with
the purpose of admitting it into court as evidence, your clients will not
be too thankful when they see all the trouble you've caused them and yourself
and your evidence is thrown out.
As to recording interstate calls, try using the "K.I.S.S./JDDI"
principle (keep it simple/just don't do it)...
Let's try the following example: You place a recorded call from Iowa to
Maryland. Iowa is a ONE party state and Maryland is a TWO (actually, ALL,
by Maryland state statute) party state. Therefore, the person originating
the call in Iowa (yourself), is being recorded as well as the target person
in Maryland being surreptitiously recorded. No Iowa laws were broken (you
in Iowa are aware of the recording). No federal laws were broken (you in
Iowa are aware of the recording). But, what about Maryland?
ANSWER: If Maryland has a statute (and it does) requiring ALL parties to
be aware of the telephone recording, and you (in Iowa) are surreptitiously
recording a person in Maryland, YOU HAVE IN FACT BROKEN A MARYLAND STATE
LAW, AS THIS IS ILLEGAL IN MARYLAND. The person in Maryland is being recorded
without his/her knowledge or consent, which by law is illegal in the state
of Maryland.
BOTTOM LINE: You have the fed's blessing, you have Iowa's blessing (therefore,
your Iowa license is safe), but if you ever travel into Maryland the cops
can - and will - throw you in prison real fast!!! As long as you stay in
Iowa, you're fine - just don't visit Maryland...
WORSE CASE SCENARIO: you committed a criminal offense in Maryland (wiretapping)
and you are from out of state (Iowa). The Maryland officials notify the
feds, so now the feds want you since you've committed a federal offense
(NOT wiretapping), by committing a state offense (Maryland) from across
state lines. Gets complicated, doesn't it!!! Is it really worth it?
I am pretty confident that I am correct on this matter, Stephanie. However,
my rule of thumb in investigations has always been that if you THINK you
may possibly be breaking a law, you probably are!!! Therefore, DON'T DO
IT, unless you are absolutely sure you are within the law of ALL states
you are conducting business in, even if by phone. No client can ever pay
you enough money to knowing violate a law, when it is supposedly our purpose
to stay within the law. Agreed? Besides, you may end up winning your personal
case, but is the time and expense in defending yourself really worth it?
You may be able to tell your story on "Oprah", but your professional
credibility is shot.
Hope this helps, and that this does not create a new flood of e-mail...
Sincerely,
James Brewer,President
Angel & Brewer Limited,PO Box 2434
La Grange, IL 60525 USA (Chicago metro area)
Phone: 708-579-1776, Fax: 708-354-2933
E-mail: AngelBrewer@msn.com
Web site: http://www.pihome.com/angelbrewer
CAN ANYONE ANSWER THIS QUESTION CONCERNING ONE PARTY/TWO PARTY TELEPHONE
RECORDINGS?
You might also want to note the rules for INTERSTATE calls. My understanding
is that A) federal law allows one-party consent recordings and also that
B) state law that is stricter predominates..... Does the state law where
the call ORIGINATES dominate? Does it matter? If I call from California
to Texas, for example, am I held liable....
-stephanie
Steph:
I don't know-I'm not a lawyer-have asked some and gotten difference answers
but will (frw) to group and see what we get back.
Ralph Thomas
National Association Of Investigative Specialists
Thomas Investigtive Publilcations, Inc.
http://www.investigativeresources.com/home.html
P 512-719-3595 F 512-719-3594
<JGroganPI@aol.com>
Best bet- instead of recording, do something that is permissible and admissible
in court: have a third party (of your choosing) listen in on the conversation
and write it all down. This can then be turned in to a "witness statement".
It helps to have the third party do the phone dialing, too, and include
this fact in the statement.
John Grogan/Los Angeles (818) 883-6969 (we do latent fingerprinting and
other assignments for other PIs throughout California)
<svi@hopf.dnai.com (Stephanie Voss)>
Thanks. But isn't that "eavesdropping"? Or is eavesdropping only
regulated when it's technologically enhanced or violating a reasonable expectation
of privacy? In other words, when one is talking on the phone should one
assume there might be an extension? .....
just curious...
-stephanie
<RThomas007@aol.com>
Boy now that's a can of worms! I belief that attorneys could have a field
day with that question! Although personally I belief that the spirt of the
law when it was written was applying to electronic means of recording conversations,
I have this feeling you'd have to go to the US Supreme Court to get that
one answered in any finalization.
Ralph Thomas
National Association Of Investigative Specialists
Thomas Investigtive Publilcations, Inc.
http://www.investigativeresources.com/home.html
P 512-719-3595 F 512-719-3594
<rwillard@success.net (rwillard)>
This to may be illegal, depending on the state you live in. It is still
the interception of a oral communication with out the permission or concent
of all parties. Just because it is not being recorded on tape does not mean
it it legal. Here in PA, it is what is call ALL party concent. Although
I may not agree with the law, it still must be obeyed. Hopefully someday
it will be change to one party concent. Well, enough for now. Good Luck
to all.
Roger J. Willard, P.I., 3304 Main Street, Conestoga, PA 17516
717-872-7561 rwillard@success.net,Author, MISSING PERSONS, USA - Paladin
Press, Professional Speaker - Check out our Web Site
www.igateway.com/mall/special/private
<74777.3001@compuserve.com (Blackmoor)>
>>Section 2511 (2) (d) states as follows, "It shall not be unlawful
under this chapter for a person not acting under color of law to intercept
a wire, oral, or electronic communication where such a person is a party
to the communications or where one of the parties to the communication has
given prior consent to such interception unless such communication is intercepted
for the purpose of committing any criminal or tortious act in violation
of the Constitution or laws of the United States or of any State".
Now THIS makes sense to me. It's reassurring to run across a reasonable
law once in a while.
Brandon Blackmoor, Harry Browne for President
Black Gate Publishing <http://www.HarryBrowne96.org>
<http://users.aol.com/blackgate>
<lgriggs@msegroup.com (Lee Griggs)>
Please take note that while we are discussing one party-two party recording,
there is a difference between wiretapping and recording conversations. I
am trying to find the law on this right now and will post it as soon as
I have it. Most states recognize the recording of phone calls by businesses
as part of the business operation. A case was tried on this as wiretapping
and it went all the way to the S.Court. The court ruled that wiretapping
was the surrepticious (gad- what spelling) recording of a phone call (simply
put) for possible illegal purposes, etc., while the recording of a phone
call by a business was a normal course of events in this day of rapid communications,
etc. We have recorders on our incoming business lines and record all conversations
as a normal course of events. We then put the tape (we use microtapes) with
the client file. If the party does not become a client, we erase the tape
and reuse it. It has made keeping up with client information a whole lot
simpler.
Lee Griggs
<graypi@main.citynet.net>
After some of the discussion with respect to monitoring telephone conversations,
I would suggest all read 18 USC Sec. 2511, Part 1, Chapter 119. This document
(best to use Gopher) is a must for all who are involved in any covert assignments
where monitoring is employed! Mac Gray, Gray & Associates www.citynet.net/personal/sharkpi/
graypi@main.citynet.net
END NOTES
If you have additional information to add to this, please e mail to: RThomas007@aol.com and it will get
posted to updates.
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Posted by:
Ralph Thomas
National Association Of Investigative Specialists
Thomas Investigtive Publilcations, Inc.
http://www.investigativeresources.com/home.html
P 512-719-3595 F 512-719-3594
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