Can I Record This Conversation?

Whether you can record a conversation with someone depends upon where the recording is being made.

Whether you can record a conversation with someone depends upon where the recording is being made.

We frequently get reports of supervisors saying some fairly outrageous things to their employees in closed-door meetings. But when challenged on these problematic statements, the supervisors deny they said them -- they lie. And they lie because they know they are behaving unprofessionally or illegally and should not be.

So members frequently ask whether they can record those problematic conversations. The answer depends upon where the conversation is being recorded. The Digital Medial Law Project has an excellent website detailing the law in a bunch of states.

The website notes that "[f]ederal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties[,]" and it cites 18 U.S.C. section 2511(2)(d). It further notes that under these "one-party consent" laws, "you can record a phone call or conversation so long as you are a party to the conversation."

The Digital Media Law website notes that DC is a "one-party consent" law state. This means that "you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance[,]" according to the website. That means if you are participating in a meeting with other people, as long as one party agrees, you may record. And that "one party" may be you, meaning that you may record conversations without all parties participating consenting.

Digital Media Law's website notes that "Virginia makes it a crime to intercept or record any 'wire, oral, or electronic communication' unless one party to the conversation consents[,]" and cites Virginia Code section 19.2-62. That makes Virginia, like DC, a one-party-consent state where you can record a conversation in which you're participating without the consent of the other parties involved. They note, however, that if you're recording a conference call that has participants in multiple states, "you should abide by the recording law of the most restrictive state involved" to make sure you're safe.

Maryland has a different rule that requires you to get the consent of "every party to a phone call or conversation in order to make the recording lawful." notes that the Maryland state code section 10-402 makes it "a felony to intercept a wire, oral or electronic communication unless all parties to the communication have consented[,]" and further notes that disclosing the contents of illegally recorded conversations may be a crime as well. Note, however, that Digital Media Law notes that in some of these all-party consent states, "it might be enough if all parties to the call or conversation know that you are recording and proceed with the communication anyway, even if they do not voice explicit consent."

The question is begged by the above information, of course, of what law applies to a given recording? Certainly if you're recording a conversation to which you're a party in a federal building, federal law would apply. But does state law apply to a conversation you're recording in a federal building? As the website notes, "it is not always easy to tell which law applies to a communication, especially a phone call."

They provide a couple of examples, noting that "if you and the person you are recording are in different states, then it is difficult to say in advance whether federal or state law applies, and if state law applies which of the two (or more) relevant state laws will control the situation." To be safe, we recommend that you apply both federal law and the law of the state where you are sitting and doing the recording. And to be more cautious, record the conversations in person instead of over the telephone.

It's worth reiterating that you cannot record a conversation to which you are not a party. For example, you cannot put a recording device in a meeting room and record a meeting that you're not in. The person recording must be a party to the conversation to record it, even in one-party-consent states. If you're not in the meeting and no one who is knows the conversation is being recorded, then you obviously do not have the consent of at least one party.

Finally, keep in mind that your supervisor might be recording a conversation with you too. So please, when interacting with your supervisor, be on your best behavior, even if the supervisor is not.