Wiretapping: Is It Legal to Record Phone Calls?

Phone call recordings can be subject to state and federal wiretapping laws. Wiretapping laws are generally intended to give people a reasonable expectation of privacy. In most cases, it is against the law to record a phone conversation when you are not a party to the private conversation. However, you may be able to record calls if you have consent to record. State wiretapping laws are generally based on whether at least one or all parties consent to the recording. Because the laws vary by jurisdiction, it is best to consult a criminal lawyer in your area to give you the best advice about your individual situation.

Can My Employer Monitor My Phone Calls At Work?

You may be wondering if you can sue your employer for invading your privacy. Many employees are concerned with keeping their private life private. Employees may be aware that their employer is monitoring work-related phone calls, conference calls, and presentations. However, a critical legal question is whether the employee has a fair expectation of privacy—for example, when talking about a private matter to another employee or when making a personal phone call on their own time.

Under the Electronic Communications Privacy Act (ECPA), an employer cannot monitor or record an employee’s private phone calls or voicemails. Employers may only be allowed to monitor employee communications if they have a legitimate business purpose or if the employee consents to monitoring.

Some employers have extended their reach into the private and personal lives of employees. This has increased with more people now working from home. Businesses may expect their employees to be available during non-work hours, answer phone calls on their personal mobile phone, or install business software on their private computer.

Employees may not have an expectation of privacy when they are using property owned by their employers. Even if they are using business equipment during non-work hours, employees may not have an expectation of privacy in their electronic communications. This includes using a company computer or work email.

Is It Legal to Record a Cell Phone Conversation Without Consent?

Both state and federal laws govern the legality of recording telephone calls, and whether it is legal often depends on the consent established by the people on the line. In general, states are divided into those having “one-party consent laws” and “two-party consent laws.”

In one-party consent states, only one party needs to consent to the phone call being recorded. When a business is recording a phone call and your employer is on the line, your employer may be able to record the call as long as the employer or business is informed of the recording. Under federal law, only one party needs to consent to a recording of phone calls.

For example, Texas is a one-party state. Only one party, including a business or employer, has to consent to a multi-party call for the call to be legally recorded. However, recording any phone or electronic communication without the consent of at least one party is a criminal offense.

In some states, both parties on a phone call need to be informed that the conversation is being recorded. Under two-party consent law, if there are two people on the line, both need to be informed of the recording for the call to be recorded. Some phone conversations involve multiple people, including conference calls. In a multi-party consent call, everyone on the line must be informed of the recording for the call to legally be recorded. 

California is a two-party consent state. If a phone call is being recorded, all parties must be made aware of the recording. However, there may be exceptions involving criminal actions. For example, a person in California may be able to record incoming calls or outgoing calls without informing the other caller if the other caller is making criminal threats of extortion or crimes of violence.

Cell Phones and Line Monitoring

You may wonder if phone monitoring laws only apply to landlines, or if they extend to mobile phones as well. Your iPhone, Android device, or smartphone may even have recording apps available that can automatically record your telephone conversations. However, just because such third-party apps exist does not mean that it is legal to record calls. 

In general, state laws for recording calls are the same for landlines and mobile phones. The laws may even apply to “VOIP” calls such as iPhone voice memos or calls over FaceTime, Google Voice, or WhatsApp.

Consequences of Violating Privacy Laws

The consequences of violating state wiretapping laws or phone recording laws may depend on the individual situation. Illegal recording or wiretapping can be charged as a felony, which includes the possibility of jail time and fines. In addition to criminal prosecution, unlawfully recording a phone conversation may also provide a civil cause of action, which could include liability for damages. 

Whether you are an employer or employee facing a potential privacy violation, it is best to talk to a criminal defense attorney for advice about your individual situation.