Recording, Consent, and the Record

Federal law sets a floor. Section 2511(2)(d) of Title 18 makes it lawful for a person not acting under color of law to intercept a communication they are a party to, or where one party has consented.

The exception sits in the same sentence: not where the interception is for the purpose of committing a criminal or tortious act. The test is the purpose of the recording, not what it later reveals. Violations carry up to five years, and a separate civil action with statutory damages and fees.

States build upward. Roughly thirty-eight states and the District of Columbia track the federal rule. About eleven generally require every party's consent — “two-party” is the common name and it is wrong whenever three people are talking. Several states vary the rule by medium or by setting, which is the trap: knowing your state's label is not enough.

Ask three questions in order. Which category is my state in? Does the rule change between a phone call and an in-person conversation? Does it change by location or expectation of privacy?

Interstate calls create a genuine unresolved conflict of laws. In Kearney v. Salomon Smith Barney the California Supreme Court applied California's all-party rule to protect a California resident on a call into a one-party state, limiting relief because the other side had reasonably relied on its own law. In one-party states you may record a conversation you are part of. In all-party states, get everyone's consent before recording starts; announcing after you start is not enough.

Recording police in public is separately protected. Glik v. Cunniffe held in 2011 that the First Amendment right belongs to all, not only the press, subject to reasonable time, place and manner limits. Fields and Turner followed in other circuits, and no circuit has rejected it.

But several granted qualified immunity on “not clearly established” grounds even while agreeing the right exists, and the Supreme Court has never ruled. The right covers recording; it does not cover obstructing.

Finally, what recording is for. Its honest uses are narrow: your own accurate record, a deterrent effect when announced, and documentation of a pattern in harassment cases. It is not a weapon.

A recording still has to be authenticated under the rules of evidence. An unlawfully made one can be excluded and expose the maker to liability simultaneously: you can lose both ways. In practice the incident log does more work in a protective-order file than any single recording does.