Like most people who use phones for communication, you may have thought of recording a phone call that you can use as evidence for your case.
It could be a case of sexual harassment by your employer, discrimination from your manager, or just catching someone in a lie.
Whatever the case, you should be aware of the privacy laws in place at the federal and state level before you start recording your phone conversations.
The question is, can you sue someone for recording a conversation? This post will inform you what is and is not admissible in court and the legality of recording conversations. Keep reading to find out everything you need to know.
An Overview of Local Laws About Recording Private Conversations
Federal and state governments have laws that govern the legitimacy of the secret taping of oral, phone, and other forms of communication.
The sneaky recording of a dialog is controlled by the laws of the state in which the recording person resides unless federal law offers superior privacy protection.
The federal Wiretap Act
Congress enacted the Wiretap Act following a public uproar about the government taping of the moves made by political activist groups in the 1960s.
Under the Wiretap Act, it is unlawful for a third party to listen in and illegally record your conversation.
Individuals have a reasonable expectation of privacy in their homes, which applies to all electronic communication. There are civil penalties and criminal liability for doing so.
However, there are two significant exceptions to the Wiretap Act. These are:
1. The service provider exception
The federal system allows mobile phone and telephone service providers to listen in and monitor phone calls.
They can legally record phone calls without explicit consent when providing a customer with service or inspecting their equipment.
In other cases, the law requires these service providers to obtain a court order to record phone conversations.
2. Law enforcement officials
It’s legally permissible for law enforcement officials to intercept communications if they suspect someone is engaging in illegal activities.
However, even these enforcement officials need the implicit consent of one or more parties for surreptitious tapings.
Some protective state laws require law enforcement officials to consent from all parties in communication.
Reasonable expectations of privacy
The Wiretap Act only protects conversations that individuals being secretly recorded would reasonably expect to remain confidential.
Whether an individual has a reasonable expectation of privacy in a particular situation depends on whether the conversation was in a public or public place and whether the person being recorded treated the subject matter as private.
A person who, for example, brags at a gathering about cheating a partner in a business deal cannot object later when a recording of this admission is present as evidence in a lawsuit filed by the business partner.
Consent to recording
The Federal Wiretap Act and most state laws that govern secret recordings (as explained below) permit secret recording where one-party consents. Consent may be implicit when one party to the communication is recording the other.
For a third party that wants to make a recording, the Federal Communications Commission (FCC) states that they can obtain consent by:
- Seeking verbal or written consent for the recording being made
- Playing a verbal notification before the conversation starts (for example, this phone call is being recorded for quality control purposes)
- Repeating an audible beep tone at intervals within the course of the conversation
Protective State Laws vs. Federal Laws
There are scenarios where state laws are less protective of privacy than the Wiretap Act. In such a case, the Wiretap act takes precedence.
That is to say, any state law allowing sneaky conversation taping without the consent of at least one party would be negated and preempted by federal law.
However, state laws that provide better privacy protections to residents than the Wiretap Act won’t be preempted by federal law, and their requirements are enforceable.
So far, twelve states don’t allow a person to record a private conversation without the consent of all parties to that conversation. So, secret recording is not permitted (except for law enforcement officers who have sought warrants to make the recordings).
These states include Maryland, California, Massachusetts, Nevada, Washington, Florida, Michigan, Maryland, Pennsylvania, Illinois, Montana, and New Hampshire.
Can You Sue Someone for Recording a Conversation in Georgia?
Is it illegal to record audio conversations? Can you sue someone for recording a private conversation in Georgia?
Georgia wiretapping law is a one-party consent law. Recording or eavesdropping on an in-person or telephone conversation without the implicit consent of one of the parties to that conversation is thus considered a crime.
In Georgia, you can legally record a dialog if you’re participating in it or seek consent from one of the parties before recording.
Even if the conversation involved multiple parties, the recorder only needs to seek the permission of one person to record the conversation.
A third party that wants to make a recording must seek consent through the three ways mentioned above.
So, you can sue if recorded by someone who was not part of the conversation and did not seek consent.
Can You Sue Someone for Recording a Conversation at Work in New York?
Like many other states, New York has a ‘single-party consent’ law regarding recording audio conversations. This means that anyone on a call can tape the dialog without the consent of the other. (N.Y. Penal Law §§ 250.00, 250.05).
This primarily protects journalists who conduct interviews (the ethical thing to do is to be transparent about the recording, but it’s not compulsory).
Recording calls can also be helpful when someone wants to protect themselves in legal proceedings. If negotiating pay with your employer, you can tape the call for proof of what was promised.
But what if a third party eavesdropped on your conversation with your boss at work and recorded it? Can you sue someone for recording a conversation at work in NY?
If you had a reasonable expectation of privacy, you’re protected by the Wiretap Act and can sue. You can also take legal action against someone who recorded you in a conversation that you perceived private and did not consent to in New York.
Is a Recorded Conversation Admissible in Court?
You recorded your employer harassing you sexually or discriminating against you at work. Would the recorded conversation be admissible in court if you were to sue?
Even though recording conversations may be legal, most state courts consider recorded conversation hearsay. A recording may therefore be inadmissible in court even if it were recorded by one of the conversation participants unless an exception to the rule applies.
Several exceptions can change the recorded conversation from hearsay to admissible evidence. A taped conversation is acceptable in a New York court either as a party admission, a declaration against interest, or an inconsistent statement.
It can also be used for accusation or as a complementary statement.
What are the Penalties for Illegal Recording of a conversation?
Violating federal and state laws on recording private conversations has grave ramifications, including jail time, fines, or paying damages in a civil lawsuit. The penalties vary across states, however.
Criminal penalties
Someone who violates the federal Wiretap Act can face a sentence of up to five years in prison, $500 in fines, or both.
Violating a state law that prohibits the secret recording of conversations can lead to penalties prescribed by that law. Generally, every state imposes some criminal liability for state surreptitious recording law violations.
For example, someone violating Georgia’s law can face a misdemeanor conviction, a one-year prison sentence, and a $2,500 fine.
Civil penalties
Recording someone without consent is considered a gross infringement on their privacy. Hence the victim can initiate a suit against them. Damages are available if you win the lawsuit.
Parting Shot
Can you sue someone for recording a private conversation? The answer is yes.
A person can use their phone to record you publicly only if you don’t have a ‘reasonable expectation of privacy.’ You can file a lawsuit against someone who recorded you in a conversation that you perceived as private and did not consent to record.
You can also report them to law enforcement for infringing your right to privacy, in which case they will assume criminal liability.
If you have more legal questions, you can chat with a Legal Giant attorney who can guide you on your case or questions.
