Can You Legally Record Private Conversations and Telephone Calls?

This week I called several insurance companies and invariably heard a greeting which sounded something like this, “This call may be recorded for quality assurance purposes.” Another common greeting is, “This call may be monitored or recorded for training purposes.”

Is conversation recording legal?

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A §2510-2520)

Generally this statute provides that any person whose communication is intercepted, disclosed or intentionally used, can file a civil lawsuit. Federal law makes it unlawful to record a telephone conversations except when one party consents to the recording under state law. What this means is that a person can record their own telephone conversations without the knowledge of consent of the other party, in those states that allow “one party consent”. Federal laws apply to both cell phones and wireless phones. Most scanners that lock onto the frequencies needed to pick up wireless and cell phone conversations are now illegal to possess or sell.

Many states have adopted a version of this federal law, and some state laws provide greater protection than the federal law. Under these laws, a state court, will first examine the state statue to determine if the communication at issue fits within the scope of the statute. Next, the state court will determine if any exceptions apply.

The most common issue that the courts must decide is whether the conversation is private. Most statutes only cover confidential or private communication. A general rule is that people engaged in personal conversations can reasonably expect their conversations are private. If the communication is private, these statute will protect that conversation.

Courts generally consider wire and cell telephone conversations to be private. The exceptions may include:

1. The members of a family picking up an extension in the same house.
2. An employee using a work telephone to make a personal call.
3. Using a microphone, to record a conversation while sanding outside a first-story apartment is not private communication because the conversation when the conversation can be heard clearly form the sidewalk through a open window.
4. Public conversations, for example when people engage in conversation in an outside restaurant.
5. Emergency calls to fire or police.
6. When criminal activity is involved such as extortion or blackmail.
7. When there is a “beep” on a recorded line.
8. Body bugging of a police informant.
9. Any bugging pursuant to a valid warrant.
10. Recorded messages informing you that your telephone conversations may be recorded.

All of these exceptions are fact specific.

One factor that the courts consider to determine is a communication is private is consent. A greeting that informs a listener that his conversation may be recorded is generally sufficient for consent. If you speak after hearing that message, you cannot later maintain a civil suit.

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. Most state laws allow individuals to record conversations to which they are a party, without informing a party that they are doing so. These are referred to as “one party consent” statutes.
The remainder of the states require the consent of all parties. You can see that a conflict can arise when a person from a “one party consent” state records a telephone conversation with a person from an “all party consent” state.

What is the Nevada Law on recordings?

NRS 200.650 (Unauthorized, surreptitious intrusion of privacy by listening device prohibited) states:

NRS 200.690 (Penalties) states:

1. A person who willfully and knowingly violates NRS 200.620 to 200.650, inclusive:
   • Shall be punished for a category D felony as provided in NRS 193.130.
   • Is liable to a person whose wire or oral communication is intercepted without his or her consent for:
     1. Actual damages or liquidated damages of $100 per day of violation but not less than $1,000 , whichever is greater:
     2. Punitive damages; and
     3. His or her costs reasonably incurred in the action, including a reasonable attorney’s fee, all of which may be recovered civil action.
2. A good faith reliance by a public utility on a written request for interception by on party to conversation is a complete defense to any civil or criminal action brought against the public utility on account of the interception.”

Because monetary and criminal penalties apply, before deciding to record any conversations, you should consult with an attorney to discuss what you want to record and what you want to do with the recording after it is done.