Often, clients and potential clients come to us with “great evidence” of someone’s wrongdoing. But, invariably, the evidence is not as helpful as they think. Usually, the evidence is innocuous and unhelpful—in some cases, it may make the other side look “bad” from a societal standpoint, but does not give rise to legal liability, or in others, it suggests legal liability but is deemed inadmissible by relevant rules and laws. And sometimes, the evidence, regardless of its merit, opens the client up to criminal exposure.
In the last few months, we have noticed a rising number of potential clients asking if they can or should record phone conversations between them and a third person. Very often, it is an employee alleging employment discrimination seeking to record a conversation between the employee and a representative of the employer (usually, the employee’s boss). While this seems harmless, if the recording was made in Pennsylvania and the employer did not consent to the recording, the recording violates the Wiretapping and Electric Surveillance Control Act and exposes the employee to a third degree felony and other civil penalties. Moreover, recordings made in violation of this act will be inadmissible in a Pennsylvania State Court.
This surprises a lot of clients, and to be fair, Pennsylvania is in the minority of jurisdictions that require so-called “two-party consent” (though, in actuality it is “all-party consent” because if there are more than two people on the phone call everyone will need to consent in these jurisdictions). So, before you press record, know the law of your state.
Which states require all parties to consent to a phone recording?
As alluded to, most states and the federal government require only “one-party consent” (meaning, if you are having a phone conversation with your boss, you are cleared to record that conversation without alerting them).
The states that require all parties to consent are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, Vermont, and Washington.
Do these “all-party consent” states allow for any exceptions?
Like most other areas of the law, there are exceptions to the all-party laws. For example, Pennsylvania’s law contains many exceptions, but many of them pertain to conducting a law enforcement investigation, quality control measures for telemarketers and customer services hotlines, and victims or witnesses of ongoing, impending, or recently occurring violent crime.
The upshot is that the exceptions typically stem from trying to further some public policy goal, meaning that it is unlikely that candid conversations with your boss will fall under one of these exceptions. So if you are in an “all-party consent” state, you will likely have to refrain from making the recording or face potential liability.
What if two parties in a phone conversation are in separate states with differing laws?
You may be wondering what could happen if you are sitting in your living room in Pennsylvania, and recording your boss at her office in New York (a “one-party consent” state). This is an interesting legal question and touches on an area of law known a “Conflict of Laws.”
For questions like this, there is no universally correct answer (unless you accept “it depends” as a correct answer). As an example, consider Larrison v. Larrison, where the Pennsylvania Superior Court opted to apply New York’s one-party law where the recording was made in New York, even though the nonconsenting party was in Pennsylvania. In reaching this decision, the court reasoned Pennsylvania could not control conduct happening outside of its borders. But, if the party doing the recording is physically located in Pennsylvania, this logic does not apply. So, simply stated, if you are physically in an all-party consent jurisdiction, that is the law you should follow. Where the other party is located is likely irrelevant.
To put this all in practical terms, if you are in an all-party consent jurisdiction, save your emails, not your phone calls.
Keith Peterson is a law clerk who recently graduated with honors from Drexel University Thomas R. Kline School of Law. He is working under the supervision of several senior lawyers at the Firm.