By Joseph F. Verser and Jordan C. Heath, Heath, Old & Verser, P.L.C.
We must admit: This topic seems kind of shady. Writing a column about recording a conversation conjures up images from the Watergate era or a nasty divorce. Nevertheless, this does come up from time to time. Clients have often asked, “Can I record my conversation with him? or, “So-and-so recorded our phone call — can they do that?! I thought that was illegal!”
This legal issue arises in interpersonal disputes as well as business disputes. The same set of laws for recording conversations and other communications bind private citizens and large corporations alike. This column is designed to set the record straight on this controversial (and, sometimes shady) topic.
To answer this question, we must begin with the black letter law. As an initial matter, the Virginia Wiretap Act (Virginia Code §19.2-61 et seq.) provides that “any person who… intentionally intercepts… any wire, electronic or oral communication… shall be guilty of a Class 6 felony.” “Intercept” is defined as “any means of acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.” This would include an iPhone, a tape recorder or any other item that we regularly associate with recording a phone call or an in-person conversation.
However, the Virginia Wiretap Act provides a powerful “consent” exception. Under the exception, it is not a criminal offense “for a person to intercept a wire, electronic or oral communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.” See Virginia Code §19.2-62. This means that you are free to record a phone conversation or an in-person conversation if you are one of the parties to the conversation. The other exception is if one of the parties to the conversation gives you consent to record the conversation.
This is called a “one-party consent” law. The Federal Wiretap Act (18 U.S.C. §2511) is also a one-party consent law. Under a one-party consent law, you can record a phone call or in-person conversation as long as you are a party to the conversation. If you are not a party to the conversation, a “one-party consent” law will allow you to record the conversation or phone call as long as your source consents and has full knowledge that the communication will be recorded.
Under Virginia and federal laws, it is also legal “to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.” This means that every post on Facebook, Twitter, Instagram and the like is all up for grabs. Sorry, no privacy there either.
This becomes tricky when a call is being recorded between people located in different states. Some states have “two-party consent” laws that require the knowledge and consent of both parties. Although they are referred to as “two-party consent” laws, consent must be obtained from every party to a phone call or conversation if it involves more than two people. So, if there are 10 people on the call, this means that all 10 must consent to the recording. In our survey of the law across the country, it appears that 11 states require the consent of every party to a phone call or conversation to make the recording lawful. These “two-party consent” laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington. This means that recording a conversation with someone in one of these states can be dicey. Furthermore, the recording may potentially not be admissible in court, or worse, could subject you to criminal penalties from that state.
Regardless of whether state or federal law governs the situation, it is almost always illegal to record a phone call or private conversation to which you are not a party, do not have consent from at least one party or could not naturally overhear. So take comfort—generally speaking, you are safe to record a conversation to which you are a party. Just make sure both people are in Virginia. And, hey, don’t be so shady about it!