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Ooh baby, baby it’s a wired world. Cat Stevens could easily rewrite his lyric for a new era. Recently a couple of politicians have been caught on tape saying something that they thought was private when, in fact, their audio was being recorded. In both situations the recordings were not intended to gather personal information, but they recorded embarrassing stuff none the less. It is equally possible, and for a public figure probable, that there is someone intentionally recording a conversation either in person or on the phone. What is the law on the subject?
The Supreme Court has determined, as a matter of federal law, that if you reveal something to another person, you risk that that person will tell the world what you have said. This is the justification that is given to allow an informant to wear a wire and even to record the conversation when speaking to a target in person Thus, unless there is a state law that limits the ability to record your conversation with another, your confidante may be secretly recording your conversation for some later use.
By telephone recordings I do not mean wire taps by government officials, I am talking about the person you might be speaking to who is recording your conversation. Federal law requires that only one party to the telephone conversation consent to the recording. Thus, if you consent, you may record the phone conversation with another without any consent, or even knowledge that the phone conversation is being recorded. This approach has been adopted by most of the states as well. There are still a significant number of states that require that both parties to the phone conversation give some kind of consent before they may be recorded. There may even be criminal and civil liability for someone who does record a conversation contrary to state law. The rules and penalties vary, depending on the state, so make sure you know what rights you have in your own state.
Privacy is not about everyone becoming a hermit, unless you want that. It is about control over the disclosure of your private life and information in the ways outlined in the book How To Vanish. I do not recommend avoiding all in-person conversations or telephone conversations just because there is a risk of someone recording it. It is important to be aware of what the consequences of talking to someone in person or by phone might be and then order your affairs appropriately to control the level of risk that you are taking. It is also helpful to understand that when there are laws in place in a certain state against surreptitious recording by one party to a conversation, you may have recourse if there was a recording made without your consent. If you have any question about recording of phone calls, you will want to talk to a lawyer.
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