What are Secret Recordings?
Secret recordings are almost exactly what they sound like. They are recordings made by an individual of conversations they are having with others. These recordings frequently occur using a variety of different types of audio recorders, or are sometimes made using video recording equipment, such as cell phones, body cameras and even GoPro cameras.
Individuals commonly make secret recordings for a number of different reasons. In some cases, it is simply to have documentation of a conversation that is occurring. It allows a party to go back and listen to the conversation to determine if certain statements were made or whether a particular promise was made by the other person.
In other circumstances, secret recordings are made because someone believes that a crime is being committed . An employee may secretly record a conversation that occurs at work, believing that something improper or illegal is occurring.
There are a number of different statutes that determine whether secret recordings are legal or illegal. These laws also govern the use of those recordings in court. For example, in California, recording a conversation is generally illegal unless both parties consent to the recording. In Nevada, however, one-party consent is often all that is needed to have a conversation recorded. In California, the consequence of recording a conversation without the permission of all parties is a possible felony charge, and the recording is necessarily inadmissible in court. However, Nevada does allow for hearsay exceptions to allow the admissibility of a statement made in a secret recording without the consent of all parties.
The Law on Admissibility
The legal framework for determining whether a secret recording is admissible in court is complex and often varies significantly from one jurisdiction to another. Generally, courts are faced with two central questions: whether the secret tape recording is reliable and whether its admissibility is compliant with state and federal laws governing wiretapping and other forms of electronic eavesdropping.
At the federal level, the main statute regulating federal wiretaps is the Federal Wiretap Act, codified in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Sections 2510-2522 of Title 18, U.S. Code ("Title III"). Title III provides detailed provisions for the interception of electronic communications, and contains requirements for obtaining the government’s authorization to conduct the interception. In order to comply with Title III, the conversation must be overheard through the use of an "electronic, mechanical or other device," the person seeking to intercept the recording must be a party to the communication (or must have the consent of one of the parties), and the recording may not be made for the purposes of committing or aiding in an illegal act. When the Federal Wiretap Act applies, federal law enforcement will typically seek a wire tap order from the court.
Most states regulate the use of wiretaps and other electronic overhearings in some form. The majority of states fall into two groups regarding the use of wiretaps: those that require the consent of only one party to the communication (or the agreement of one party that the overhearing communicate to another) and those that require the consent of all parties to the communication. Many of the states that require the consent of only one party authorize recording activities by their state agencies but make no clear provisions about private citizen to conduct recording.
Depending on the jurisdiction, these limitations can be strict. For example, California’s Invasion of Privacy Act prohibits "eavesdropping upon or recording private communications" and follows a strict one-party consent rule, but also includes a strict provision against using eavesdroppings evidence in court.
Whether state law renders a tape admissible in evidence would depend on state-specific law on the issue and concerns about admissibility of secret recordings generally, at the discretion of the judge, may vary from one juristic to another. In the case of a tape being used without consent, the party making the transcript could be criminally prosecuted. Even if it is determined that the eavesdropping was unlawful, evidence obtained is not automatically excluded from court.
The use of wiretaps by law enforcement, however, is heavily regulated. In Minnesota, for example, under sections 626A.02 and 626A.03, an ‘honorable judge’ may issue a search warrant to intercept a wire, electronic, or oral communication. Where the eavesdropping intends to arrest or prosecute an individual, a warrant requires the interception to be appropriate.
Even the FBI’s own regulations ensure oversight for those targeted. According to the FBI manual, the FBI can not, under normal circumstances, conduct warrantless electronic surveillance for domestic security or in order to monitor communications of State Department employees.
Considerations for Admissibility
Courts will consider multiple factors when determining whether or not secret recordings are admissible in a court of law. Of these factors, two stand out above the rest. When considering their usage, it’s imperative that people understand these. Consent clearly plays an important role in whether or not the tape will be admissible in court. If both parties consent to being recorded, this should be more than enough for the tape to be admissible. However, if one party does not consent, the situation becomes more complex, and it may ultimately come down to whether a reasonable person would have felt that their conversations were private. Privacy is a key factor in determining whether or not a tape can be used in court. If the recording is made where parties are deemed by the court to have a reasonable expectation of privacy, then there may be a good chance it will be admissible. However, in a public place, where there is a lower, specific expectation of privacy, a secret recording may not be permissible under the law. The context of the recording should also be considered when trying to determine its admissibility in a court of law. If the tape was meant to be kept private in order to protect confidential information, it is much less likely that it will be permitted as evidence. However, if the tape was meant to be kept private while it was being made, but the information itself was not confidential, the tape stands a higher chance of being classified as admissible evidence.
Cases on the Topic
Several cases serve as a precedent for the admissibility of secretly recorded audio and video. The National Labor Relations Board in K mart Corp., 298 NLRB No. 232, 139 LRRM 1139, (1989) directed an administrative law judge to include in his decision the admissibility of a tape based on accuracy. Where the tapes were unclear, they were not admitted. If the tape was accurate and clear, it was admissible. The tapes were tested against "standard" or "known" recordings and found to be "authentic, unedited and unaltered." Accordingly, the NLRB found that the tapes were safely acquired and that neither would any confidential information be revealed. The NLRB opined, "The fact that [the attorney] made secret tape recordings and designed sophisticated computer programs to protect them from erasure by the employee’s computer, will not bar their admission in evidence."
The NLRB approved of the ALJ allowing the introduction of a tape that was alleged violated the NLRA in that supervisors announced their goal of establishing a permanent workforce. See: Tabor Center, 238 NLRB 89 (1978) The NLRB admitted the tape where the employee was informed of the legality of the agreed transfer of a bargaining unit employee. The tape was ruled admissible at same for premiums paid to employees for overtime work. See: Columbia Fire Dept. Ambulance Club, 272 NLRB 154 (1984). The NLRB also approved of the introduction of tape recording because it established that supervisors had engaged in furthering the employer’s antiunion animus in violation of the NLRA. See: Fed Ex National LTL, Inc., 323 NLRB No. 88 (1997). In some instances, ALJ’s have required written statements and warnings to employee concerning the use of the tapes. Public Service Company of New Mexico, 289 NLRB 161 (1988).
This author has been personally involved in such matters wherein the reasonableness of the investigation, particular issues involved and how the tape was obtained, become significant. A follow-up investigation to maintain the confidentiality of records, identities and databases of recorded statements can limit production of the tapes and still be allowed into evidence while maintaining a balance of rights and confidentiality.
Exceptions and Unusual Circumstances
While the general rule prohibits the introduction of secret recordings into evidence, there are some exceptions which may allow for admissibility. Crucially, individuals do not have an unlimited right to record conversations with others. However, in special cases, such recordings may be admitted as evidence. As a general rule, secret recordings made for purely personal reasons – such as to save the evidence of a conversation in case of a feud or dispute – are not admissible in court. However, if the recording was made in the course of a criminal investigation, or is necessary for the protection of upstanding public interests, such recordings may be allowed.
Moreover, such exceptions to the rule against secret recordings only apply if the wronged party in question had no knowledge of the recording , and will thus be prejudiced by its admission into evidence. If the party was aware of the recording, then it most likely would be admissible evidence, as the party being recorded had knowledge of the same. Additionally, if the wronged party in question has consented to the recording prior to it being made, or is aware of it being made, then it will be inadmissible into evidence, as well.
In a recent federal court lawsuit, a federal judge specified that the recording of wiretap evidence is admissible into evidence in a federal criminal case, as it was made with permission of the recorded party in order to expose illegal activity by corrupt local law enforcement officers. Such an exception to the prohibition on secret recording would be used in protecting the public from governmental and law enforcement abuse.
Penalties for Illegal Recordings
If you are an American citizen, you should be aware that all 50 states (and the District of Columbia) have laws regarding consent for recording telephone conversations. Both Federal and California state law requires at least one party to a conversation to consent to the recording (known as one-party consent). If you don’t have that consent, and the conversation is being recorded in California, you can be charged with a crime.
In California, "secret recording" is covered under Penal Code sections 632 and 632.5-632.7 (wire tapping), but the code isn’t absolutely clear about whether or not it is a felony or a misdemeanor. This leads some attorneys to advise their clients to err on the side of caution and not conduct secret recordings. The problem with that recommendation is that it is based on uncertainty, and one determination may be better than the other, so you should be informed of both. Keep in mind that this is not intended to be legal advice, just an informational overview.
First, let’s lay out the possible punishments.
Penal Code section 632 states that if your recording was the result of eavesdropping, you can be fined and imprisoned for wiretapping. Basically, it states: A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon the communication commits eavesdropping. The term "eavesdropping" specifically includes: That’s right — if you are in California and are recording your own conversation without the other party’s knowledge, you are already committing a crime simply by doing it.
The penalty for violating Penal Code section 632 is a fine of up to $2,500 per violation. But PC 632 also states that violations of this particular section can include imprisonment of more than one year (up to three years). It’s considered a straight felony.
Penal Code section 632.5 deals with secret recording specifically involving business communications, and denotes a fine of up to $2,500 per violation and/or imprisonment for up to one year.
Penal Code section 632.6 involves public airways or attempting to sell recordings from private conversations without consent, and is defined as a class "wobbler" (that is, it can be charged as a felony or a misdemeanor). The penalties can involve imprisonment up to a year, a fine of $2,500 per violation (up to $5,000 for repeat offenders), or forfeiture of all profits obtained. Various circumstances can affect the severity of the punishment.
There are additional statutes that address less severe penalties, such as fines for recording a phone conversation without permission that is unwittingly public. Even so, the courts tend to favor the more stringent penalties.
Penalties for secret recordings are expensive, but civil court restrictions generally pale in comparison to those involved in criminal court, or when it comes to civil liability in relation to secret recordings.
California Civil Code Section 630.1 states that anyone who makes a secret recording without consent can be sued for $5,000 per violation (in addition to any other damages). Civil court penalties can be nasty, but they are usually limited to financial penalties and possibly restraining orders on future recordings, as opposed to criminal repercussions such as incarceration. Even so, $5,000 can be a hefty price to pay in addition to other possible penalties.
How to Legally Tape a Conversation
Users who wish to record a conversation must be cognizant of their own state’s rules on wiretapping or electronic recording of certain conversations. Typically, states will designate whether surreptitious recording of conversations is permitted only when one party consents. Those states which only require consent of one party include Arkansas, California, Georgia, Iowa, Kansas, Nevada, Ohio, South Carolina, Texas and Vermont. Other states, such as Wisconsin and Michigan, require the consent of all parties to a conversation.
When analyzing whether a surreptitious recording is permitted by law, it is wise to evaluate each jurisdiction involved. For example, while a recording of a conversation was allowed in Florida because only one party consented, once that recording was introduced to another jurisdiction in New York (where all parties must give consent) it was thrown out by the trial judge. Likewise , a tape of a phone conversation which began outside of Alaska, but continued for 10 minutes after the parties met in an Alaska bar where all parties consented, could not be introduced as evidence against a defendant because a warrantless third-party interception of the tape could not be justified by all of the parties’ consent.
That being said, while you may be operating in a one-party consent state, the person or place you are planning to record a conversation with may not be in the same state. Accordingly, you should always consider the law of your home state, the state in which the conversation is being taped, as well as the state that may be the subject of the recording. Where there is uncertainty, it is always best to seek legal counsel in the recording process.