Protection
Recording and Consent
analysistraining
The federal floor, the state overlay, and what a recording is for.
Last reviewed 2026-10-07
Federal Floor
The Federal Floor Is One-Party Consent
18 U.S.C. § 2511(2)(d) makes it lawful for a person not acting under color of law to intercept a communication where that person is a party to it, or where one of the parties has given prior consent. You may record your own conversation, as far as federal law is concerned.
The same sentence carries its own exception, and it matters: not where the communication is intercepted for the purpose of committing a criminal or tortious act. The purpose of the recording is what is tested, not what the recording later reveals.
The Penalties Are Not Nominal
A violation of § 2511(1) carries a fine or imprisonment of up to 5 years. Separately, 18 U.S.C. § 2520 gives the person recorded a civil cause of action — equitable relief, damages with statutory floors, and attorney’s fees — with a 2-year limitations period running from discovery.
So an unlawful recording can cost the maker criminally and civilly, independent of whether it was of any use as evidence.
Why In-Person Recording Turns on Expectation
The Act protects “oral communication,” defined in § 2510(2) as speech uttered by a person exhibiting an expectation that it is not subject to interception, under circumstances justifying that expectation.
That built-in test is why a loud conversation on a public sidewalk sits differently from one behind a closed office door. The protection travels with the reasonable expectation, not with the room.
How States Overlay
One-Party States
Roughly 38 states and the District of Columbia track the federal rule: if you are part of the conversation, your own consent is enough.
All-Party States
About 11 states generally require every party’s consent — commonly listed as California, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington. ’Two-party’ is the common name and it is wrong wherever three people are talking.
The Mixed Ones Are the Trap
Several states apply different rules by medium or by place. Nevada and Connecticut are all-party for phone calls. Connecticut phone recording needs written consent, a recorded verbal notice, or a repeating tone (Conn. Gen. Stat. § 52-570d(a)). Oregon requires all-party notice in person and is one-party on the phone (ORS 165.540(1)(c)), upheld by the Ninth Circuit en banc on January 7, 2025; the Supreme Court denied review on October 6, 2025, No. 24-1061. Knowing your state’s label is not enough; you need to know whether it varies by medium and by setting.
What to Look Up
Three questions, in this 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? The Reporters Committee for Freedom of the Press maintains the state-by-state guide that answers all three. Check each guide page’s last-updated date. Guides older than January 2025 may miss the en banc ruling.
Hard Cases
Two States, Two Rules, One Call
You are in a one-party state; the other person is in an all-party state. Which law governs is a genuine unresolved conflict-of-laws problem, not a settled rule. The leading case is Kearney v. Salomon Smith Barney (California, 2006), where the California Supreme Court applied its own all-party rule to protect a California resident on a call to a one-party state — while limiting relief prospectively because the other side had reasonably relied on its own state’s law.
Being a Party Is Not the Same as Intercepting
Recording a conversation you are in is governed by the consent rules. Capturing a conversation between other people that you are not part of is interception, and it is a different and far more serious category.
Notification, and What Is Established
A recorded announcement, with continuing the call treated as consent, is what nearly every call-center disclosure rests on. Washington counts an announcement as consent only when the announcement is itself on the recording (RCW 9.73.030(3)). In Kearney, the California Supreme Court said that a person told at the outset that the call is being recorded may decline to continue, and that a business that gives that notice does not violate the statute.
Recording Police
The Right Exists, and It Is Not Limited to Journalists
Glik v. Cunniffe (First Circuit, 2011) held that the First Amendment protects openly recording police performing their duties in public — a right held by all, not only the press — subject to reasonable time, place and manner restrictions. Glik recorded from about ten feet and was held not to have interfered.
The Circuits That Have Ruled Agree
Fields v. City of Philadelphia (Third Circuit, 2017) and Turner v. Driver (Fifth Circuit, 2017) both recognized the right. The Turner panel’s own survey found the First, Seventh and Eleventh Circuits had recognized it and that no circuit had rejected it, with several others declining to decide.
The Limits Courts Have Recognized
Time, place and manner restrictions — an order to step back a reasonable distance — remain available. The right covers recording; it does not cover obstructing, entering restricted areas, or refusing lawful orders that are independent of the recording.
The Gap That Catches People
Several circuits have granted qualified immunity on the basis that the right was not “clearly established” at the time, even while agreeing it exists. And the Supreme Court has never ruled. So the right is real and widely recognized, but its enforcement still varies by circuit and by timing.
What Recording Is For
Authentication Is a Separate Hurdle
Federal Rule of Evidence 901 requires evidence sufficient to support a finding that the item is what you claim it is — commonly testimony from someone with knowledge, or distinctive characteristics. A recording is not self-proving.
Illegal and Inadmissible Are Two Different Penalties, and You Can Collect Both
An unlawfully made recording may be excluded under state wiretap exclusionary provisions, and may simultaneously expose the maker to prosecution and civil liability. Winning the evidentiary argument does not immunize you, and losing it does not spare you either.
What Recording Is For
Its honest uses are narrow and real: your own accurate record of what was said, a deterrent on behavior when announced, and documentation of a pattern in harassment or stalking cases. It is not a weapon, and it is not a substitute for the incident log, which in practice does more work in a protective-order file than any single recording.
The Announcement That Solves Most of This
The covert case is the one with the legal exposure, and it is usually the one least needed. Use the announce-and-stop rule above, and check your state.