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I Can Secretly Record That Conversation... Right?

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With the proliferation of smart phones, laptops, tablets, and other devices capable of surreptitiously recording conversations, the temptation to create an undeniable record of who said what and to whom, is growing daily. No conversation is safe or immune from being recorded, as even President Obama found out. If it can happen to President Obama, what makes you think it can't happen to you?

In business situations, where everyone talks on cell phones, VOIP phones, and computerized phone systems capable of secretly recording calls, the smart business person must presume that a record of the call could be created. Further even in face-to-face meetings in private conference rooms where smart phones are in pockets and purses, with laptops and tablets laid on the table, etc, the ability to record what is said should be high in the minds of all participants.

People are always looking for an edge, and if the recording might give them an edge, they may try to record the conversation.

But before YOU record a conversation, you should know when it is legal to do so. It is extremely important that YOU do not engage in the unauthorized, confidential recording of a communication without a clear and complete understanding of applicable laws.

The laws that can apply are dizzying. First there is Federal Law. Federal law permits recording so long as one party consents. See 18 U.S.C. §§ 2510 et seq. (1999) (Wire and Electronic Communications Interception and Interception of Oral Communications); (The Electronic Communications Privacy Act of 1986), amending 18 U.S.C. §§ 2510 et seq.; and Broadcast of Telephone Conversations, 47 C.F.R. §73.1206 (1989) P.L. 99-508.

But beyond that there is the law of each state that could apply to the conversation. You might have a phone call between parties all of whom are in one state. You could have a call between parties in different states. You might have a conference call with parties in multiple states. You might have a call where a party is on a cell phone and during the call that party moves over a state's border into another state and so on.

For our limited purposes of providing a high level overview, we will simplify and focus on our tri-state area: Pennsylvania, New Jersey and Delaware.

There is a significant difference between the wiretap laws of Pennsylvania as compared to the laws of Delaware and New Jersey as to when it is permissible to record a conversation, and what parties to the conversation are required to consent to such recording.

For example, Pennsylvania law, 18 Pa. Cons. Stat. § 5703, requires all party consent (sometimes referred to as "two-party consent") in order to record a conversation. This means that if you want to record a conversation in Pennsylvania, all parties to the conversation must give their consent to the recording.

Contrary to Pennsylvania's "two-party consent" law, under New Jersey law, NJSA §§ 2A:156A-3, 4, only "one-party consent" is required. Thus, in circumstances where federal law or New Jersey law applies, only one party to the conversation needs to be aware that a conversation is being recorded. This can result in conversations being secretly and legally recorded without the other participants' knowledge.

Similar to New Jersey, Delaware follows the "one-party consent rule. And therefore a single party to a call can record that conversation without the knowledge of the other participants on the call. Of course whether Delaware law applies may be an open question.

There are many occasions where application of these laws is extremely difficult, such as when a party desires to record telephone conversations involving participants located in all three states, Delaware, Pennsylvania and New Jersey.

It is extremely important that you do not confidentially record a conversation without a full and complete understanding of the wiretap laws and how they apply. If you act without thinking and record a conversation in violation of these laws, you could be subject to criminal prosecution as well as a civil claim for money damages. (For a high level overview of each state's law on recording conversations please see the chart attached)

Lastly, be aware that issues involving the taping of conversations and even the videoing of governmental actions are percolating through the Courts. Many individuals have attempted to record the conduct of police officers in public. Some have been arrested. Many cases have gone to court (with most holding in favor of the private citizen finding that citizens have a right to record and that they are exercising their Constitutional rights under the First Amendments). With the advance of technology this is an issue that will not go away.

If you have any questions regarding the wiretap laws or recording conversations in the workplace, contact the lawyers at Jacobs Law Group.

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